Matter of Rasheem S. v State of New York
Annotate this CaseDecided on January 3, 2018
Supreme Court, Oneida County
In the Matter of the Application for Discharge of Rasheem S., Consec. No. 547442, from Central New York Psychiatric Center, Pursuant to MHL § 10.09, Petitioner
against
The State of New York, The New York State Office of Mental Health, and The New York State Department of Corrections and Community Supervision, Respondents. In the Matter of the Application for Discharge of Christopher B., Consec. No. 241959, from Central New York Psychiatric Center, Pursuant to MHL § 10.09, Petitioner The State of New York, The New York State Office of Mental Health, and The New York State Department of Corrections and Community Supervision, Respondents.
In the Matter of the Application for Discharge of Christopher B., Consec. No. 241959, from Central New York Psychiatric Center, Pursuant to MHL § 10.09, Petitioner
against
The State of New York, The New York State Office of Mental Health, and The New York State Department of Corrections and Community Supervision, Respondents.
CA2016-001508
For the Petitioner:
Mental Hygiene Legal Service
Fourth Judicial Department
Emmett J. Creahan, Director
By: Benjamin D. Agata, Esq., for Rasheem S.
Michael H. McCormick, Esq., for Christopher B.
For the Respondents:
State of New York
Office of the Attorney General
Eric T. Schneiderman, Esq., Attorney General By: Bridget S. Thompson, Esq.
Assistant Attorney General
Louis P. Gigliotti, J.
DECISION & ORDER
Petitioners Rasheem S. and Christopher B. are subject to civil confinement at Central New York Psychiatric Center ("CNYPC") pursuant to article 10 of the Mental Hygiene Law ("MHL"). As part of their annual review processes, each petitioner's current mental condition was separately evaluated by a psychiatric examiner employed with the New York State Office of Mental Health ("OMH"). (See MHL § 10.09(b)).
Rasheem S. interviewed with Sarah DeMarco, Psy.D., on August 30, 2016. In her written report dated October 5, 2016, Dr. DeMarco diagnosed Rasheem S. with hypersexuality and antisocial personality disorder ("ASPD"), as well as assigned the condition of psychopathy. (See Affirmation of Benjamin D. Agata, Esq., Exhibit A). On April 10, 2017, Dr. DeMarco issued an addendum to her report, in which she clarified that she believes Rasheem S. suffers from the condition of hypersexuality and not a diagnosis of hypersexual disorder.[FN1]
Prior to engaging in his interview with Dr. DeMarco, Rasheem S. filed an omnibus motion with this Court seeking, inter alia, the appointment of Mental Hygiene Legal Service ("MHLS") as counsel and Leonard A. Bard, Ph.D. as an independent examiner. The Court granted said motion. Dr. Bard interviewed Rasheem S. on December 6, 2016, and in his written report dated January 24, 2017, Dr. Bard opined that Rasheem S. cannot be diagnosed with any paraphilic disorder found in the Fifth Edition of the Diagnostic and Statistical Manual ("DSM-V"). Nor did he think Rasheem S. currently suffers from ASPD.
With respect to Christopher B., in October 2015, he moved for the appointment of MHLS as counsel and for a stay of his annual review proceeding. The Court granted this motion. Meanwhile, Christopher B. interviewed with Roy Aranda, Psy.D., J.D., an independent examiner, on June 30, 2016. Christopher B. was scheduled to be interviewed on August 19, 2016 by OMH psychiatric examiner Sujatha Ramesh, Ph.D., but he refused to attend. Based upon a records review, Dr. Ramesh issued a written report dated September 12, 2016, in which she diagnosed Christopher B. with ASPD and assigned the condition of hypersexuality. She considered, but did [*2]not assign, either pedophilic disorder or what she classified as "other paraphilic interests," to include voyeurism, frotteurism and exhibitionism. Christopher B. thereafter asked to have the stay of his proceedings lifted and sought the formal appointment of Dr. Aranda as his independent expert. The Court granted these requests. Dr. Aranda thereafter issued a written report, dated November 21, 2016, in which he opined that Christopher B. should remain in civil confinement. His report does not identify upon what condition, disease or disorder he premised his opinion.
Pending before the Court are separate motions filed by Rasheem S. and Christopher B. requesting a Frye hearing to determine the admissibility of evidence concerning and related to hypersexuality. MHLS counsel consented to the consolidation of these motions for the purpose of hearing oral argument and issuing a decision. Oral argument was heard on June 29, 2017, and MHLS submitted additional caselaw on July 5, 2017. The Court has carefully considered the arguments posited by MHLS and the Attorney General's office in concluding that these motions should be denied.
DISCUSSION
Frye hearings are conducted when questions exist as to whether proposed expert testimony is based upon a scientific principle or procedure that is sufficiently established to have gained general acceptance in its particular field. (See People v. Wernick, 89 NY2d 111, 115 [1996]). As explained by the Court of Appeals, the test emphasizes the counting of scientists' votes, and not verifying the soundness of a scientific conclusion. (See People v. LeGrand, 8 NY3d 449, 457 [2007][internal quotation marks and citations omitted]).
The State argues that Frye hearings are inapplicable to clinical diagnoses. The affirmation submitted by the Assistant Attorney General includes a copy of an unreported decision from Nassau County Supreme Court in January 2015, which denied a Frye motion relative to paraphilia not otherwise specified ("paraphilia NOS") (non-consent) and other specified paraphilic disorder ("OSPD") (biastophilia [non-consent] with sexually sadistic traits). (See State of New York v. Ronald Smith, Index No. 01557-2014, [Sup Ct, Nassau County 2015]). In that case, the Court reasoned that the sciences of psychology and psychiatry were at issue, neither of which was novel. The Court also declined to find that paraphilia NOS and OSPD were not generally accepted diagnoses, instead pointing to the importance of evaluating the specific facts of each case, weighing the strength of a diagnosis, and drawing conclusions.
Ronald Smith stands in contrast to the myriad of Frye hearings that have been subsequently granted in MHL article 10 cases relative to particular diagnoses. Moreover, the Ronald Smith decision relied in part upon the trial court decision in Matter of State of New York v. Richard S., which denied a Frye hearing as to paraphilia NOS. The Second Department reversed that determination and remanded the case so that such a hearing could be held. (See Matter of State of New York v. Richard S., 133 AD3d 672, 673 [2d Dept 2015]).
While the State also cited a number of cases from jurisdictions outside New York declining to grant Frye hearings relative to psychological diagnoses, such precedent is not binding here. The Court of Appeals in Matter of State of New York v. Donald DD., 24 NY3d 174, 186-87 [2014], raised the specter of Frye hearings in the context of civil confinement proceedings when the majority referenced a statement made by three of its members in an earlier [*3]minority opinion (see Matter of State of New York v. Shannon S., 20 NY3d 99 [2012]), that there was "grave doubt" whether paraphilia NOS "would survive a Frye hearing." Moreover, in the context of criminal trials, psychological theories have been evaluated within the Frye framework for decades. (See, e.g., Matter of Nicole V., 71 NY2d 112, 120-21 [1987] [affirming admission of expert testimony regarding sexually abused child syndrome, because it is a recognized diagnosis; People v. Taylor, 75 NY2d 277, 285-87 [1990] [concluding rape trauma syndrome is generally accepted within relevant scientific community]; Wernick, 89 NY2d 111 [affirming exclusion of opinion testimony by psychiatric experts that the defendant suffered a brief reactive psychosis causing her to kill her newborn baby]; People v. Fortin, 184 Misc 2d 10 [County Ct, Nassau County 2000], aff'd, 289 AD2d 590 [2d Dept 2001], lv denied, 97 NY2d 754 [2002] [involving stipulation to a Frye hearing to determine whether evidence could be heard regarding a psychological theory called Parental Alienation Syndrome]). In sum, at least in New York, psychological diagnoses have been considered proper subject of a Frye analysis.
That being said, the mere fact that a psychological diagnosis is at issue does not necessarily result in a Frye hearing being held. (See People v. LeGrand, 8 NY3d 449, 457-58 [2007] ["[W]e recognize that this Court and other New York courts have permitted and upheld a qualified expert's testimony regarding research findings on patterns of human behavior without first requiring a Frye hearing."] [citing Matter of Nicole V. and People v. Taylor as examples]). In support of their motions to hold a hearing in Rasheem S.'s and Christopher B.'s cases, MHLS counsel submitted attorney affirmations, with these identical exhibits: unsigned affidavit by Dr. Bard; an article written by Martin P. Kafka for the purpose of proposing Hypersexual Disorder as a new psychiatric disorder to be included when the DSM-V was published; and articles written respectively by Charles Moser, J. Paul Fedoroff, M.D., and Jason Winters, calling into question the propriety of Kafka's proposal. MHLS argues that because hypersexual disorder was considered but ultimately excluded from the DSM-V, this outcome is evidence that hypersexuality is not generally accepted. MHLS further points to the Second Department's decision in Richard S., in which the Court determined that a Frye hearing was warranted because the motion was accompanied by "scientific literature." (See Richard S., 133 AD3d at 673). Accepting without knowing whether the "scientific literature" submitted in Richard S. is of the same nature as the literature submitted with the instant motions, sufficient other distinguishing factors exist in the cases pending before this Court to suggest Richard S. does not mandate a Frye hearing.
First, as noted by the Second Department and previously identified within this Decision, the Court of Appeals in Donald DD. set the stage for holding a Frye hearing with respect to paraphilia NOS. (See 24 NY3d at 186-87). Considering the language in Donald DD. making clear the majority's viewpoint that paraphilia NOS would unlikely survive a Frye hearing — thereby implicitly finding that a Frye hearing would be appropriately held if requested — it is easy to understand why the Richard S. Court pointed to such precedent in support of its decision to order a Frye hearing for this diagnosis.
Second, unlike paraphilia NOS, which in the Fourth Edition of the DSM was a "catch all" category for paraphilias that were not otherwise enumerated within the Manual, hypersexuality is a concept recognized and defined in the DSM-V. The preface to the DSM-V describes the publication as "a classifcation of mental disorders with associated criteria designed to facilitate [*4]more reliable diagnoses of these disorders." (See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, at xli [5th Ed. 2013]). The Glossary of Technical Terms defines hypersexuality as a "stronger than usual urge to have sexual activity." (Id. at 823). Hypersexuality is identified as a potential contributing factor to voyeuristic disorder, exhibitionistic disorder, and frotteuristic disorder, as well as a known comorbidity not only with these paraphilic disorders, but also fetishistic disorder. (See id. at 688, 690, 693, 702). It is listed as a potential differential diagnosis for sexual masochism disorder and sexual sadism disorder. (See id. at 695, 697). The nature of these multiple references within the DSM-V makes it difficult to conclude the concept is not generally accepted by the relevant scientific community. Adding weight to this conclusion is the fact that sexual compulsivity [FN2] is a dynamic risk factor identified within the Violence Risk Scale: Sex Offender version (VRS:SO), which is commonly administered by OMH psychiatric examiners and some independent examiners. According to the OMH psychiatric examiner reports submitted in the pending cases, the VRS:SO defines sexual compulsivity as a "pattern of highly repetitive compulsive sexual behavior."
What may be less generally accepted is the criteria to be considered in assigning hypersexuality. Caselaw however, suggests that the lack of a uniform set of criteria speaks more to the weight of the evidence as opposed to its admissibility. (See Zito v. Zabarsky, 28 AD3d 42, 46 [2d Dept 2006] ["The fact that there was no textual authority directly on point to support the experts' opinion is relevant only to the weight to be given the testimony, but does not preclude its admissibility. The plaintiff's experts set forth other scientific evidence based on accepted principles showing such a causal link."] [internal quotation marks and citation omitted]). For example, when considering the admissibility of expert testimony regarding rape trauma syndrome, the Court of Appeals observed:
We realize that rape trauma syndrome encompasses a broad range of symptoms and varied patterns of recovery. Some women are better able to cope with the aftermath of sexual assault than other women. It is also apparent that there is no single typical profile of a rape victim and that different victims express themselves and come to terms with the experience of rape in different ways. . . . While the diagnostic criteria for posttraumatic stress disorder that are contained in DSMIII-R have convinced us that the scientific community has accepted that rape as a stressor can have marked, identifiable effects on a victim's behavior, we would further note that although rape trauma syndrome can be conceptualized as a posttraumatic stress disorder, victims of rape will often exhibit peculiar symptoms — like a fear of men — that are not commonly exhibited by victims of other sorts of trauma.(People v. Taylor, 75 NY2d at 286-87 [internal citations omitted]). Implicit in this observation is the recognition that rape trauma syndrome may be diagnosed after observing symptoms that are not specifically identified in the Diagnostic and Statistical Manual, and yet the Court of Appeals held such expert testimony was admissible as long as it was used to explain a victim's behavior and not to prove a defendant's rape. (See id. at 292-93). Similarly, even though the DSM-V does [*5]not contain specific diagnostic criteria for hypersexuality, as noted above the Manual does specifically identify and define the concept of hypersexuality, and it also clearly contemplates consideration of hypersexuality in making paraphilic diagnoses.
The cases from Monroe County Supreme Court supplied by MHLS following oral argument do not dictate a different result. As best as this Court can tell from the relatively brief nature of each order, the issue for the Frye hearings that were granted (but apparently not held in light of the cases settling) was whether a diagnosis of hypersexuality or sexual preoccupation as a disorder was generally accepted in the relevant scientific community. (See Matter of State of New York v. James O., Index No. 2013-06305, Exhibit A to Order, p. 2, 4 [Sup Ct, Monroe County 2014] ["[I]t's that [hypersexuality is] not generally accepted in the scientific community . . . as a disorder as recognized for purposes of [the OMH doctor's] diagnosis. . . . [The OMH doctor] already testified that she thought that it fell within the DSM diagnosis of sexual disorder NOS, which no longer exists in [DSM] four, and then she said if it doesn't exist with respect to [DSM] four, that it could be with respect to [DSM] five."]; see also Matter of State of New York v. Quinton M., CNo. 6135 [Sup Ct, Monroe County 2015] [granting Frye hearing and consolidating same with the hearing to be held in James O. regarding sexual preoccupation, also described by the Court as hyper-sexuality disorder]; Matter of State of New York v. Reginald P., Index No. 2013-12618 [Sup Ct, Monroe County 2015] [granting Frye hearing on the diagnosis of hypersexuality]). In the cases pending before this Court, both doctors assigned the condition of hypersexuality based upon the DSM-V definition and the specific facts of each petitioner's case. Dr. DeMarco clarified in her addendum that she did not intend to diagnose hypersexuality as a stand-alone disorder. Dr. Ramesh never attempted to diagnose a disorder centered around hypersexuality.
Furthermore, based upon representations made by MHLS at oral argument, holding Frye hearings for these two pending cases would seem to generate irrelevant results regardless how this Court ruled after such a hearing. MHLS was asked whether all evidence of sexual activity would be precluded from the annual review hearings even if hypersexuality were found to fail the Frye test. MHLS responded in the negative, clarifying that sexual proclivity remains relevant as to the issue of a person's risk to reoffend and his degree of control over conduct constituting a sex offense, even though MHLS is advancing the position that hypersexuality would be irrelevant to the issue of predisposition.[FN3] A close reading of the State expert reports in these cases however, shows that the doctors are relying upon hypersexuality as it relates to Rasheem S.'s and Christopher B.'s risk to reoffend and not their predisposition. (See Report of Sarah DeMarco, Psy.D., dated Sept. 28, 2016, at 26-27 [identifying ASPD and psychopathy as the diagnoses related to Rasheem S.'s strong predisposition and inability to control, and citing sexual activity with peers at CNYPC as an example of Rasheem S.'s difficulty maintaining appropriate boundaries]; Addendum to Report of Sarah DeMarco, Psy.D., dated April 10, 2017, at 1-2 [*6][describing hypersexuality, in conjunction with other factors, as increasing the risk to reoffend and noting that Rasheem S. has had difficulty controlling his sexual preoccupation while confined at CNYPC]; Report of Sujatha Ramesh, Ph.D., dated September 12, 2016, at 23-24 [describing hypersexuality as relevant to the issue of risk of reoffense]). To the extent either doctor or both were to testify at the annual review hearings that the condition of hypersexuality was evidence of predisposition, MHLS can conduct cross-examination on that point.[FN4]
This Court is aware that a sister court in Oneida County will be conducting a Frye hearing as to hypersexuality in Matter of Fernando L. v. State of New York, Index No. CA2016-002179 [Sup Ct, Oneida County 2017]. The Fernando L. opinion however, summarily states the Court found sufficient grounds to grant the hearing, without specifying what those grounds were. As such, this Court has no basis upon which to draw a comparison. What is known is that in an earlier case, Matter of Leroy B. v. State of New York, Index No. CA2015-002337, this same sister Court denied a Frye motion on the basis that insufficient proof was submitted on the issue of general acceptance of hypersexuality. When questioned at oral argument as to whether MHLS had submitted proof of a different nature for the cases pending before this Court, MHLS confirmed that its proof was the same as that submitted in Leroy B.
For all of the foregoing reasons, the motions filed by Rasheem S. and Christopher B. in their respective proceedings are denied. The Attorney General's office is directed to submit a proposed order for each case, on notice to MHLS, in accordance with the terms of this Decision.
In the meantime it is hereby ORDERED that the Court record of this proceeding shall remain sealed by the Oneida County Clerk's Office and will be made available only to the parties to this proceeding or upon further Order of the Court.
This constitutes the Decision & Order of the Court.
Dated:January 3, 2018
HON. LOUIS P. GIGLIOTTI, AJSC Footnotes
Footnote 1:This addendum was issued after the attorney for Rasheem S. filed his affirmation in support of the within motion for a Frye hearing. The Court takes judicial notice of same however, as MHL § 10.09(c) requires the OMH commissioner to forward the findings of the OMH psychiatric examiner to the Supreme Court in the county where Rasheem S. is located. Moreover, the contents of the addendum were not disputed while this motion was pending.
Footnote 2:Synonyms for hypersexuality, as that term is used within the context of MHL article 10 cases, include sexual preoccupation and sexual compulsivity.
Footnote 3:A person's predisposition to the commission of conduct constituting a sex offense and his degree of control over such conduct are concepts incorporated in the statutory definitions of "mental abnormality" and "dangerous sex offender requiring confinement," both of which are utilized as part of the analysis in annual review hearings held pursuant to MHL article 10. (See Mental Hygiene Law §§ 10.03(e) & (i); 10.09(d)).
Footnote 4:Cross-examination proved effective in Matter of David D. v. State of New York, Index No. CA2016-001004 [Sup Ct, Oneida County 2017] [Gigliotti, J.]. In that case, the State expert assigned, inter alia, the condition of hypersexuality. This Court nevertheless ordered the petitioner's release from confinement due to the State's failure to establish a link between hypersexuality and a predisposition to conduct constituting a sex offense, as well as a failure to establish the petitioner had serious difficulty controlling any such conduct even if the predisposition element were presumed to have been satisfied.
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