Matter of State of New York v Nicholas T.

[*1] Matter of State of New York v Nicholas T. 2018 NY Slip Op 28178 Decided on June 12, 2018 Supreme Court, New York County Conviser, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on June 12, 2018
Supreme Court, New York County

In the Matter of the Application of The State of New York, Petitioner,

against

Nicholas T. , Respondent, For Commitment Under Article 10 of the Mental Hygiene Law. In the Matter of the Application of The State of New York Petitioner, Gary K. Respondent, For Commitment Under Article 10 of the Mental Hygiene Law.



In the Matter of the Application of The State of New York Petitioner,

against

Gary K. Respondent, For Commitment Under Article 10 of the Mental Hygiene Law.



30130/16



New York State Attorney General Barbara D. Underwood (Kent B. Sprotbery, of counsel) for the State.

Mental Hygiene Legal Services, First Department ( Kalina Lovell and Jessica Botticelli, of counsel) for the Respondents.
Daniel P. Conviser, J.

The State moves here to reargue this Court's prior bench ruling that the diagnosis of "Unspecified Paraphilic Disorder" ("USPD") is not generally accepted in the relevant psychiatric community under the Frye standard. (See Frye v. United States, 293 F 1013 [D.C. Cir 1923]). For the reasons outlined below, that motion is denied.

The two respondents here are subject to petitions for sex offender civil management pursuant to Article 10 of the Mental Hygiene Law ("Article 10"), the Sex Offender Management and Treatment Act ("SOMTA"). On December 21, 2017, after an extended Frye hearing, this Court issued a Decision and Order holding that the diagnosis of USPD was generally accepted in [*2]the relevant psychiatric community under the Frye standard. State v. Jerome A., Nicholas T. & Gary K. 58 Misc 3d 1202 (A) (New York County 2017).[FN1] Among other points, this Court outlined how there was no dispute that USPD was a recognized psychiatric disorder under the Diagnostic and Statistical Manual of Mental Disorders, 5th Edition (the "DSM-5"); that the DSM-5 was universally recognized as the authoritative guide to mental disorders in the United States and reflected a consensus of opinion in the psychiatric community; that three prior trial courts in New York had found USPD was a generally accepted diagnosis and that no New York court had ever reached a contrary conclusion.

On February 14, 2018, however, the Second Department in the case of State v. Hilton C. (Anonymous) 158 AD3d 707 (2d Dept 2018) found that USPD was not a generally accepted diagnosis under the Frye standard and reversed a judgment finding the Respondent suffered from a Mental Abnormality based in part on the that diagnosis. The Hilton C. Court's ruling was based on additional considerations regarding USPD which this Court also discussed extensively in its decision but ultimately found not dispositive with respect to the general acceptance issue, including the argument that USPD had "no clear definition or criteria" and "no research demonstrating [its] reliability". 158 AD3d at 709. This Court subsequently reversed its determination in these cases. Although this Court respectfully disagrees with the Second Department's decision in Hilton C., it is thus far the only appellate ruling on the issue. This Court is thus bound to follow it. See Mountain View Coach Lines v. Storms, 102 AD2d 663 (2d Dept 1984).

On February 14, 2018, a different Second Department panel in State v. Richard S., 158 AD3d 710 (2d Dept 2018) held that a different diagnosis, Paraphilia Not Otherwise Specified (Non-Consent) (hereinafter "Non-Consent") was not generally accepted in the relevant psychiatric community.[FN2] Among other authorities, that ruling cited a decision by this Court, State v. Kareem M., 51 Misc 3d 1205 (A) (New York County Supreme Court 2016) which had reached the same conclusion after an extended Frye hearing. On March 30, 2018, a different panel of the Second Department, however, reached a different conclusion on the Non-Consent general acceptance issue in the case of State v. Anthony B. (Anonymous), 2018 NY SlipOp 68466 (U) (2d Dept 2018).

In that case, after a verdict and an appeal, the Article 10 petition had been remitted by the Second Department to the trial court to conduct a Frye hearing on the Non-Consent diagnosis. In [*3]the interim, however, the Second Department issued its decision in State v. Richard S., supra, holding that Non-Consent was not a generally accepted diagnosis. On remittal, then, the trial court (quite sensibly, in this Court's view) opined that it would be pointless to hold a Frye hearing on the diagnosis, since it had been found not generally accepted by the Second Department.

The Anthony B. Court, however, disagreed and remitted the case to the trial court again, to conduct a Non-Consent Frye hearing. The directive the Anthony B. Court now gave to the trial court was to conduct "a Frye hearing on the question of whether, under the particular circumstances of this case, the diagnosis of 'Other Specified Paraphilic Disorder (Non-Consent)' has achieved general acceptance in the psychiatric and psychological communities so as to make expert testimony on that diagnosis admissible and for a report thereafter. . ." (emphasis added). Since this decision, Article 10 litigants and courts have pondered whether the Anthony B. decision purported to create a new analytic construct under the Frye standard: the notion that "general acceptance" under Frye must be assessed "under the particular circumstances" of an individual case rather than under the principle of "general acceptance". Finally, on May 2, 2018, the Second Department denied, in a summary order, the Respondent's motion to vacate the Anthony B. Court's earlier decision remitting the case to the trial court for a Frye hearing. These Anthony B. rulings then led the State to bring the instant motion asking this Court to reverse its prior bench ruling that USPD was not a generally accepted diagnosis.

The State's motion is denied for two reasons. First, obviously, the Second Department's holding in Anthony B. did not concern the diagnosis at issue here: USPD. It concerned an unrelated diagnosis: Non-Consent. With respect to USPD, in the absence of any contrary appellate authority, this Court is bound to follow the decision of the Second Department in Hilton C. (Anonymous).

The State's claim here is essentially that the Anthony B. decision outlined a new method for analyzing Frye issues, that is, that such issues must be evaluated on a case-by-case basis, which should be applied by the Court here and should result in this Court adhering its original conclusion following the Frye hearing it conducted. The State describes Anthony B. as a "new legal precedent" issued subsequent to this Court's last USPD ruling:[FN3]

The Second Department in Anthony B. has in essence held that in the area of MHL Article 10, a Frye decision from one court based on a particular Frye record does not preclude the State from submitting further evidence at a new Frye hearing before a different court to establish that USPD is generally accepted in the relevant scientific community. Id., ¶ 23.

But Anthony B., as reasonably read by the State, actually stands for a proposition which is even broader. That is the principle that an appellate ruling from an appellate court based on a particular Frye record does not preclude the State from seeking a new Frye ruling before a trial court based on a different record. In this Court's view, respectfully, that is not the law. Moreover, applying such a rule would presumably allow any party in any case to seek and obtain [*4]a Frye hearing on any proposition, no matter how generally accepted it was, because a new hearing would create a new record, which might result in a different determination than one which had been made by the Appellate Division or the Court of Appeals. That would obviously create extensive duplicitous litigation and obviate one of the fundamental precepts of our justice system: that trial courts must follow appellate rulings. There is, moreover, no basis on which such a principle might apply only to Article 10 cases, as the State posits. General acceptance issues under Article 10 are not analytically different than general acceptance issues under other provisions of law.

The Frye test considers the "question of whether the accepted techniques, when properly performed, generate results accepted as reliable within the scientific community generally." People v. Wesley, 83 NY2d 417, 422 (1994); see also, Parker v. Mobil Oil Corporation, 7 NY3d 434 (2006). The scientific principle "must be recognized" and "sufficiently established to have gained general acceptance in the particular field in which it belongs". Id., at 422-424, quoting Frye, supra. "The Frye test emphasizes 'counting scientists' votes, rather than verifying the soundness of a scientific conclusion'". Id. at 439 (Kaye, Ch.J., concurring) see also, People v. LeGrand, 8 NY3d 449 (2007). Under the Frye test, the burden of proving general acceptance rests on the party presenting the disputed evidence. Zito v. Zabarsky, 28 AD3d 42, 44 (2d Dept 2006). General acceptance can be established through "texts and scholarly articles", expert testimony and judicial opinions. People. v. Wernick, 215 AD2d 50, 52 (2d Dept 1995), affirmed, 89 NY2d 111 (1996).

The general acceptance of a particular diagnosis or scientific test obviously does not vary from case to case (hence the term "general acceptance"). The identical method of DNA or fingerprint analysis, or the validity of a particular medical diagnosis, does not differ depending on the facts of a case. The scientific community does not figuratively "vote" that a particular scientific method is valid in one case but then come to a different consensus in a different case. The facts of a case are key to evaluating whether such a test or diagnosis will be admissible, but that does not have to with general acceptance under Frye. As outlined supra, that case-specific analysis concerns the foundational reliability of a particular diagnosis or test as it is applied to the facts of an individual case.

In this Court's view, the Anthony B. decision might be explained in two ways. First the Court may be considering whether to adopt a contrary ruling than the Richard S. Court on the general acceptance of the Non-Consent issue. Appellate courts, obviously, generally follow their own precedents but perhaps the Second Department will take a different tack on this issue.

Confusion regarding this ruling may have also arisen from the conflation of the Frye issue with two related concepts: the fact that Frye rulings, like all rulings, are based on the record before a court and that any evidence, including evidence validated after a Frye hearing, must meet threshold standards of reliability to be admissible.

The State first focuses on language in Hilton C. which held that "the State failed to establish on this record that the diagnosis of unspecified paraphilic disorder has achieved general acceptance" in the psychiatric community. State's Affirmation, ¶ 15, quoting Hitlon C., SlipOp at 2 (emphasis added in State's Affirmation). The State argues that the record before this Court during its Frye hearing was more extensive [and hence, presumably had greater validity] than the record the Hilton C. Court relied on. The State notes that this Court heard testimony [*5]from six expert witnesses, while the Hilton C. Court record included testimony from only two live witnesses. Trial courts, however, are not free to ignore appellate rulings because a trial court believes it did a better job, based on a more thorough record, than an appellate court in analyzing the same issue. In stating that it did not believe the State had demonstrated that USPD met the Frye test based on the record before it, the Hilton C. Court, in this Court's view, was not attempting to validate a new way of adjudicating Frye issues. It was making the obvious point that it had evaluated the USPD issue on the record before it. It could not have done anything else.

Cases cited by the State in support of its view on this issue, in this Court's view, are distinguishable. In Frasier v. 301-52 Townhouse Corp., 57 AD3d 416 (1st Dept 2008) the Court rejected the plaintiff's theory that dampness and mold in their building had caused health problems, under both the Frye test and general foundational principles applicable to all evidence. The Court said it was not ruling that dampness could never be considered the cause of an injury, only that such causation had not been proven in the instant case. But this ruling concerned both a causation question unique to the case and a general Frye issue. Unlike Hilton C., the Frasier Court also explicitly said it was not reaching any general conclusion on the efficacy of the scientific principle the plaintiffs had proffered. The State cites the Court of Appeals decision in Cornell v. 360 West 51st Street Realty, 22 NY3d 762, 785 (2014) for the proposition "that a Frye ruling on lack of general causation hinges on the scientific literature in the record before the trial court in the particular case". The instant case, however, did not consider a Frye issue regarding causation in an individual case. It considered the question of whether USPD is a generally accepted psychiatric diagnosis. That is a question whose assessment does not change based on the facts of a case. Nor did the instant Frye hearing reach the question of whether the State's USPD diagnosis would ultimately be admissible during the Respondents' trials.

That is because this Court, in its ruling, held that following its conclusion that USPD was a generally accepted diagnosis, a second analysis would have to be conducted in each of the three cases originally at issue here to determine whether the USPD diagnosis would be admissible during each respondent's trial. As the New York Court of Appeals has instructed:

The Frye inquiry is separate and distinct from the admissibility question applied to all evidence — whether there is a proper foundation — to determine whether the accepted methods were appropriately employed in a particular case (Wesley, 83 NY2d at 429). "The focus moves from the general reliability concerns of Frye to the specific reliability of the procedures followed to generate the evidence proffered and whether they establish a foundation for the reception of the evidence at trial". (Wesley, 83 NY2d at 429). Parker v. Mobil Oil, supra, 7 NY3d at 447.

General acceptance under Frye and foundational reliability are often conflated but, as the Court of Appeals has made clear, they are distinct concepts requiring independent analysis. The Anthony B. Court in its remittal order appeared to combine the two doctrines, directing the trial court to consider both the general acceptance issue and the ultimate question of the admissibility of USPD in the case before it. See State v. Anthony B., supra, (directing the trial court to consider whether "under the particular circumstances of this case, the diagnosis of 'Other Specified Paraphilic Disorder (Non-Consent)' has achieved general acceptance in the psychiatric and [*6]psychological communities so as to make expert testimony on that diagnosis admissible . . . ")

Confusion has arisen because, while a finding that a diagnosis is generally accepted can be followed by a decision that the diagnosis is not admissible in a particular case, a finding that a diagnosis is not generally accepted (as the Second Department held in Richard S.) cannot be followed by a decision which applies that rule but nevertheless holds that such a diagnosis is admissible in a particular case. Put another way, general acceptance can be followed by an inadmissibility ruling, but the failure of a scientific principle to pass the Frye test cannot result in a ruling that the same principle is nevertheless admissible, but only in one case.[FN4]

In closing, it is worth remembering how important it is for trial courts and Article 10 practitioners to have consistent guidance on Article 10 Frye issues. This Court, in its decision in State v. Kareem M., supra, which was issued on March 29, 2016, noted at that time that there were at least 16 individual and often duplicative Frye hearings which had been conducted or were in process on Article 10 diagnostic issues (n. 25). Many additional Frye hearings have been held since then. The three Article 10 Frye hearings this Court has conducted each lasted at least six days, took place over multiple weeks, featured witnesses flown in from different parts of the country, took weeks or months to schedule and resulted in extended written decisions after additional briefing and argument. An individual Frye hearing in an Article 10 case will often take longer than the trial.

These hearings cause significant delays in adjudicating these cases, during which respondents remain confined pending a trial, often for years. Moreover, Article 10 cases often feature multiple diagnoses, creating the potential for multiple Frye hearings. The first appellate guidance on these Frye questions came in the Second Department's decisions in Richard S. & Hilton C. Regardless of one's views of these holdings, they have had the great virtue of at least temporarily establishing the rules of the road regarding these diagnoses and obviating the need for additional duplicative Frye hearings. Anthony B., however, as evidenced by the instant motion, has created new questions about whether these rulings are binding and introduced further delays and uncertainty into an already unduly laborious Article 10 adjudicatory process. In this Court's view, the Article 10 system does not need more Frye hearings on diagnoses which have already been subject to the same hearings in multiple courts over years, primarily featuring the same evidence and witnesses. Article 10 was enacted 11 years ago. It is past time for clear rules [*7]to be established on the admissibility of the limited number of diagnoses which are repeatedly proffered in these cases.

Anthony B., in this Court's view, should not be regarded as changing the Frye standard or negating the binding effect of the Second Department's other Frye rulings. It should be seen as a decision which is limited to the case before the Court. "General acceptance" means what it says. Having consistent general rules under the Frye test will make the Article 10 process more efficient but also more just for both respondents and the people of this State.

For all of those reasons, the State's motion is denied.

June 12, 2018

Daniel Conviser, A.J.S.C. Footnotes

Footnote 1:In addition to the two cases at issue here, that earlier decision concerned a third Article 10 respondent, Jerome A. Jerome A.'s case, however, was recently tried by another judge and is no longer pending before this Court. The three original cases on this motion and the two cases here have not been consolidated. Given that the instant motion concerned the same issue in all three cases, however, (the general acceptance of USPD under the Frye standard), this Court, with the parties' consent, conducted one Frye hearing for all three respondents.

Footnote 2:The nomenclature of this diagnosis in Richard S. was under the prior edition of the DSM, the DSM-IV-TR. The equivalent diagnosis under the current version of the DSM, the DSM-5, is "Other Specified Paraphilic Disorder (OSPD) Non-Consent" (and a number of similar designations).

Footnote 3:State's June 1, 2018 Affirmation in Support of its Motion to Reargue or Renew (the "State's Affirmation"), ¶ 17.

Footnote 4:In addition to its other arguments, the State asserts that the decision of the Second Department in State v. Ronald S. (Anonymous), 2017 NY SlipOp82318 (U) (2d Dept 2017), motion for summary reversal denied, (Unreported Decision) 2016-02417 (2d Dept, April 12, 2018) supports its view here. In Ronald S., the Second Department remitted an appeal of a Mental Abnormality finding to the trial court to conduct a Frye hearing on the diagnosis of "Paraphilia NOS". The State asserts this was the same "Non-Consent" diagnosis at issue in Richard S., although the Second Department's Ronald S. decision does not say that. This decision, however, predated the Second Department's Non-Consent holding in Richard S. and was on the consent of the parties. The Second Department's denial of the reversal motion did take place after Richard S., on April 12, 2018. However, that one sentence denial said nothing about the reasons for the Court's decision. In this Court's view, the sparse record in Ronald S., which in any event was not about the USPD diagnosis at issue here, has little relevance to the instant motion.