Matter of State of New York v Charada T.

[*1] Matter of State of New York v Charada T. 2018 NY Slip Op 50382(U) Decided on March 23, 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 This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 23, 2018
Supreme Court, New York County

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

against

Charada T. , Respondent.



30111-2017



New York State Attorney General Eric Schneiderman (December Sutton, of counsel) for the State.

Mental Hygiene Legal Services, First Department (Jessica Botticelli and Laura B. Hyman, of counsel) for the Respondent.
Daniel P. Conviser, J.

The Respondent is the subject of a petition for sex offender civil management under Article 10 of the Mental Hygiene Law (the "Sex Offender Management and Treatment Act", "Article 10" or "SOMTA"). He appeared before this Court for an annual review hearing to determine whether he continues to be a dangerous sex offender requiring confinement pursuant to MHL § 10.09.

For the reasons outlined infra the Court holds that: (i) the State did not present evidence that Mr. T. suffered from conduct disorder prior to the age of 15, one of the requirements for a diagnosis of Anti-Social Personality Disorder ("ASPD"); (ii) Mr. T., therefore, cannot be diagnosed with ASPD; (iii) the state did not present evidence that Mr. T. has any other psychiatric diagnosis; (iv) without a valid psychiatric diagnosis, Mr. T. cannot be subject to Article 10 because he does not have any qualifying "condition, disease or disorder" under the statute. The Court therefore orders the petition in this case be dismissed and the Respondent released. Since the Court has determined the Respondent does not suffer from a Mental Abnormality under Article 10, it has not ruled on the question of whether he should remain confined or be released to Strict and Intensive Supervision and Treatment in the community ("SIST"). This order shall be stayed for 45 days to allow the State to seek a stay of this Court's order pending appeal, should the State choose to do so.

STATEMENT OF FACTS [FN1]

[*2]The State and the Respondent each presented the testimony of one expert witness at the hearing. Their testimony is first outlined here.

Testimony of State's Expert, Dr. Sarah DeMarco

Dr. DeMarco received her Psy.D. in clinical psychology in 2014 and has worked as a psychiatric examiner employed by the New York State Office of Mental Health ("OMH") since December of 2015. She is also an adjunct professor at the John Jay College of Criminal Justice, has an independent therapy and evaluation practice and has worked in a variety of other settings as a psychologist or psychology/extern. She conducted an evaluation of Mr. T. for this case. She wrote a report memorializing her findings on May 13, 2016 and also reviewed subsequent records regarding the Respondent. She interviewed the Respondent by video-conference. She diagnosed Mr. T. with Antisocial Personality Disorder ("ASPD") with psychopathic features, found he had a Mental Abnormality under Article 10 and opined he continues to be a dangerous sex offender requiring confinement.[FN2]

Mr. T. was born on June 17, 1973. In September of 1997, he committed two forcible rapes of stranger victims within an hour of each other. In the first assault, he choked the victim into unconsciousness, forced her to perform oral sex and hit her in the face. Following this incident, he felt "aroused" "intoxicated" and felt he was "floating across pavement".[FN3] 40 minutes later, he approached a second victim, choked her, beat her in the head and threatened the victim with a razor. Then "despite supposed compliance of this victim" he raped her, caused additional injury, choked her with a pay phone cord and then anally and orally raped her.[FN4] Both assaults occurred in midtown Manhattan beginning a little before midnight. Mr. T. was convicted by [*3]guilty plea of Rape in the First Degree and other charges and given a 12 year determinate sentence in satisfaction of these charges.

After being incarcerated, Mr. T. was linked by DNA evidence to a rape which had occurred one year earlier, in 1996, in which he brought a woman to the roof of a building and raped and orally sodomized her. He was convicted of Rape in the First Degree by guilty plea and sentenced to 13 years imprisonment for that crime. Mr. T. was arrested for non-sexual crimes six times between the ages of 18 and 23 years. Dr. DeMarco was unsure of the details regarding these arrests and what crimes Mr. T. was convicted of in connection with them.

In 2001, Dr. DeMarco testified, Mr. T. masturbated on top of his bed while confined in the Department of Correctional Services ("DOCS"). She was unsure, however, what the outcome of this allegation was with respect to the DOCS disciplinary process. She said that in 2008, he was found to have taken his penis out of his pants and had it stroked by another inmate in DOCS. After extensive questioning, Dr. DeMarco indicated she believed Mr. T. had been determined to be guilty of these offenses but she had little understanding of what process was followed in making any such determination.

Dr. DeMarco additionally testified that in 2008 Mr. T. was found by DOCS to have been masturbating in his cell and when confronted by a female corrections officer attempted to pull the officer towards him. In 2010, DOCS determined that Mr. T. walked to the threshold of his cell, was stroking his genitals outside his boxer shorts and then pulled out his penis. Dr. DeMarco then testified that Mr. T. had received twenty Tier 2 tickets and six Tier 3 tickets but was unable to say the time period during which these occurred. She repeatedly said she had written down the relevant dates "backwards".[FN5]

With respect to the incident involving the correction officer, Mr. T. told Dr. DeMarco that he did not grab the correction officer's arm or put his hands on her. With respect to the incident where he allegedly pulled out his penis at the entrance to his cell, he said this was the result of his being caught masturbating in his cell by another inmate. Dr. DeMarco said that records she had reviewed from the Central New York Psychiatric Center ("CNYPC") indicated there were multiple times Mr. T. was staring at female staff through his door and masturbating. (Mr. T. was placed at CNYPC, where he continues to be housed, in 2012). There was also one instance where he was found in a bathroom stall with another resident. These incidents occurred between 2012 and 2015. The records indicate that he stared at female staff on six occasions and that he additionally stared at female staff with his hands on his genitals on four occasions. He was also observed masturbating in his room with his door open while staring at female staff twice on one additional date and on two additional occasions. These incidents were indicative of Mr. T.'s inability to manage his sexual compulsions while confined.

Mr. T. had an unstable home life as a child. He has been engaged in sex offender treatment in DOCS on multiple occasions. In the first, in 2001, he participated in a program for five days but was apparently determined to be not ready for treatment by DOCS. He also [*4]attended DOCS sex offender treatment from September of 2007 to March of 2007. He was removed from that program for disciplinary reasons. Dr. DeMarco testified that Mr. T. participated in a sex offender treatment program from May 3 - 30, 2010 then testified that the dates were May 10 - 30, 2010. He was removed from that program because he was observed masturbating in his cell. He was finally placed in a sex offender treatment and chemical dependency program from March 29 - April 11, 2010 but was removed from the program because it was considered an inappropriate placement.

As outlined infra, the Court has determined to strike Dr. DeMarco's testimony regarding the scoring of the Psychopathy Checklist Revised (the "PCLR") by Dr. Burgoyne in 2014. However, Dr. DeMarco also testified that Mr. T. has psychopathic traits, a conclusion she arrived at based on his offending history. She said Mr. T. has engaged in "impression management", that is, an attempt to portray himself in the best possible light rather than focus on his core issues. She also said Mr. T. portrayed himself as a victim and derailed group treatment discussions.

Mr. T. is sexually aroused to non-consenting persons. He believes he does not need the treatment he is being provided. Mr. T. lied about masturbating to female staff during the year prior to Dr. DeMarco's interview, when treatment records indicated this had occurred. Mr. T. has exhibited a lack of remorse, callousness, recklessness and extreme violence upon his sexual assault victims.

Mr. T.'s rapes demonstrated gratuitous violence beyond what was necessary for victim compliance and included humiliating acts like anally and orally sodomizing one of his victims. She said Mr. T.'s sex offender homework indicated he "reported developing a perversion toward hurting other people" and enjoyed exercising power and control.[FN6]

Dr. DeMarco testified that Mr. T. likely received some benefit from sex offender treatment while in prison but that the benefit was minimal. Since being placed in OMH custody in 2012, he continues to not explore his sexual deviance or be open or honest in treatment. Dr. DeMarco administered a test called the Violence Risk Scale - Sex Offender Version (the "VRS-SO") which is an actuarial test which includes both static and dynamic factors. The test is designed to measure an offender's progress through sex offender treatment. The test administered in 2016 indicated that Mr. T. was at a high risk to re-offend although it indicated he was at slightly reduced risk from his score in 2014. Dr. DeMarco's review of records for the past year and half does not indicate that Mr. T. has improved.

Dr. DeMarco read some statements from the Defendant into the record regarding his sexual offending. Among other assertions about his offenses, Mr. T. said that:

the power through force was a turn-on, and it became addictive . . . I wanted sex so badly and so much, that I couldn't satisfy my appetite. I had to be violent. It's like having conventional sex wasn't enough anymore. I had developed a perversion that included hurting people. I believe I committed my offense because I wanted to hurt my victims physically and sexually. . . . It was a turn-on to force my will upon my victims. . . . I was totally out of control. . . [Regarding one of his victims, he said]:I remember her not [*5]putting up a fight. But I slapped her anyway.[FN7]

Mr. T. told Dr. DeMarco that he had embellished these descriptions to satisfy his treatment providers. But she opined that they were consistent with other information she knew about his assaults.

Mr. T.'s progress in sex offender treatment while confined at CNYPC from 2012 to 2016 has waxed and waned with respect to the quality of his participation. Participation, inappropriate sexual behavior and altercations have decreased at times and then reappeared. During the past year, however, his participation in group treatment has increased. However, his treatment providers continue to believe he is engaged in grievance thinking, derailing groups, taking a victim stance and having difficulties with peers. Mr. T. continues to deny and minimize much of his sexual deviance. Mr. T. acknowledges committing his crimes, but Dr. DeMarco opined that he continues to minimize his deviant sexual arousal. Mr. T. denied having deviant sexual fantasies in his interview with Dr. DeMarco.

She opined that Mr. T. does not have a good understanding of his offense cycle. This is important in order to allow an offender to interrupt his offending pattern. He does not recognize the degree to which he has used gratuitous violence in his offenses. Dr. DeMarco is not aware of whether Mr. T. has developed a relapse prevention plan. She described how Mr. T. manifested the diagnosis of ASPD. With respect to the requirement that a respondent demonstrate evidence of conduct disorder prior to age 15, she testified:

There is evidence in the records that he has admitted to engaging in significant behavioral problems as early as age six. There was a time during school when he was in high school or I believe in eight grade where he was becoming truant in school [FN8]and ultimately ending up dropping out of school due to such truancy in high school.[FN9]

Dr. DeMarco said that "psychopathic features" were a "condition" rather than a "diagnosis.[FN10] Mr. T.'s psychopathic traits have been associated with Mr. T.'s viewing people as objects, being more likely to use violence, impression management and manipulation. She opined Mr. T. continues to be a dangerous sex offender requiring confinement. He hasn't developed an ability to understand and manage his sexual deviance.

Dr. DeMarco believes Mr. T. is sexually preoccupied and Mr. T. reported that he was with respect to his staring at staff at CNYPC. Dr. DeMarco acknowledged that Mr. T.'s masturbation frequency had decreased while at CNYPC. Mr. T. was not arrested prior to age 18. Dr. DeMarco agreed that there was no evidence that Mr. T. evidenced aggression to people or animals as a child; no evidence that Mr. T. destroyed property prior to age 15 and no evidence of theft prior to age 15. She did say that there was evidence of deceitfulness prior to that age, as evidenced by Mr. T.'s truancy. Dr. DeMarco opined in her report that "Mr. T. admits to being [*6]introduced at a young age to a antisocial life-style which has continued into adulthood" although she didn't further specify Mr. T.'s age or the referenced "life-style" .[FN11]

Dr. DeMarco acknowledged that Mr. T. had an incentive to successfully complete sex offender treatment in prison to earn early release and had reported that he had embellished his sex offender history during treatment. Dr. DeMarco was unable to cite any research to support the proposition that understanding one's offense cycle and having a relapse prevention plan were important to being successful in the community. Mr. T. has completed sex offender treatment groups focused on offense cycles and a group where participants create a relapse prevention plan. Dr. DeMarco said she had not sought to speak to the Respondent's mother or father in connection with her evaluation.

Testimony of Respondent's Expert, Dr. Alexandra Riggs Garcia-Mansilla

Dr. Garcia-Mansilla testified that she has been the Director of Psychological Assessment at the Rikers Island jail complex since January of 2017. She received her Ph.D. in clinical psychology, forensic specialization in 2010, has a private forensic evaluation practice and has also worked as a psychologist in a number of other settings. She has previously evaluated 12 respondents in Article 10 cases in annual review hearings and testified for both the Attorney General and respondents.

Dr. Garcia-Mansilla interviewed Mr. T. at CNYPC in September of 2016. She reviewed records and talked by phone to Mr. T.'s mother because "it became unclear why he was being diagnosed with ASPD when it didn't look like there was any early conduct problems".[FN12] She opined Mr. T. did not have a Mental Abnormality under Article 10 and did not have ASPD because:

A personality disorder requires that the behavior and the problems are pervasive [FN13]and extends back into childhood or adolescence. . . ASPD requires that you have evidence of conduct disorder before the age of 15, and . . . I did not find evidence of conduct disorder anywhere, and that's really essential to the diagnosis. It's required in the DSM-V. So therefore you know that's why I didn't diagnose him with ASPD.[FN14]

She described this requirement as "an essential part of the diagnosis" of ASPD.[FN15] She said the diagnosis was not particularly helpful in forensic contexts since 80-90 % of persons in correctional institutions can be diagnosed with ASPD. Her conversation with Mr. T.'s mother indicated that his behavior problems began around age 18, which was also corroborated by the records. Mr. T.'s truancy began around 11th grade and wasn't a chronic problem before age 15. [*7]There was also no evidence prior to age 15 of "stealing things, vandalizing, dealing drugs . . . getting into a lot of fights".[FN16] Problems began around age 18, when Mr. T. entered a relationship, had a daughter and began dealing drugs to support his family and interacting with peers who were engaging in criminal conduct.

Psychopathy is an extreme form of ASPD manifested by impulsivity, shallow affect, manipulation and conning. She scored Mr. T. on the PCLR with a score of 28. "Cut-off" scores for psychopathy are controversial and although 30 is sometimes cited as a cut-off [above which a subject has psychopathy], the test is really more a means of measuring the extent to which psychopathy arises rather than an either/or numerical assessment. Mr. T.'s scores were higher for interpersonal and affective components than for anti-social lifestyle components of the PCLR. She opined these scores were more relevant to general offending than sexual offending. Mr. T. is not predisposed to commit a sexual offense and has no paraphilia (sexual disorder) diagnosis.

She also opined that Mr. T. does not have serious difficulty controlling his sexually offending behavior. She described his behavioral problems at CNYPC as "not chronic" and not indicative of compulsive behavior but more opportunistic.[FN17] She described Mr. T.'s lewd or sexual conduct in prison and CNYPC as problematic but something Mr. T. was working on. Dr. Garcia-Mansilla discussed the VRS-SO [FN18] assessment tool which she said was a structured professional judgment instrument. She said her use of this instrument indicated Mr. T. was at a moderate to high risk to commit another sexual offense.

Assuming Mr. T. was found to have a Mental Abnormality, Dr. Garcia-Mansilla opined that he does not meet the criteria for being a dangerous sex offender requiring confinement and could be safely managed on SIST. She said SIST supervision would likely be successful in managing Mr. T.'s behavior. Mr. T.'s participation in sex offender treatment has improved and he is "really engaged" and "really participating" although he is frustrated at times.[FN19] He has made a lot of progress with respect to the cognitive distortions he had at the time of his instant offenses, because at that time he objectified women, thought prostitutes were different than other women and felt justified in taking what he wanted from other people without empathy. He understands that he previously offended when he was both attracted to someone and also had a lot of rage against a victim. He has worked hard on his ability to manage his anger and has been able to step away from conflict. He is better able to manage stress, follow rules and understand intellectually what his offending did to people.

Mr. T. has said he is reluctant to do written work [concerning sex offender treatment] because statements he makes in that work can be used against him in legal proceedings. Dr. Garcia-Mansilla couldn't say whether Mr. T. minimized his offenses, only that his accounts differed from those of the victims, although she said Mr. T. "was probably minimizing" his [*8]offending behavior.[FN20]

Factors mitigating Mr. T.'s risk to re-offend are his relationship with his mother, the fact that he doesn't have a "main"[FN21] mental illness and does not have an extensive history of substance abuse or a life long pattern of offending behavior, all indicating that under the right circumstances, he could be safely managed in the community. To be successful in the community an offender needs a plan to avoid situations which might trigger a re-offense and Mr. T. has reported that he is working on that issue. Such a strategy need not be formally called a "relapse prevention plan". Mr. T. said that staying away from persons involved in crime was very important to him as well as staying away from prostitutes and reconnecting with family. He said he would be willing to engage in any treatment that was required.

Dr. Garcia-Mansilla acknowledged that Mr. T. had told her, with respect to his first rape conviction in 1997, that he denied this was a sexual offense, denied it was coercive, denied he intended to rape the victim and said the victim "wasn't a real victim".[FN22] He reported that he committed a second sexual assault involving even more violence than the first, 40 minutes later, because he was sexually unfulfilled and angry. He said an earlier rape to which he was subsequently linked by DNA evidence which occurred in 1996 was based on anger and lust and "came out of the blue".[FN23] Mr. T. tends to focus on external factors that happen to him rather than being in control.

Mr. T. had a troubled early childhood in which he was molested and subjected to physical punishment. His mother was a drug addict and his father was absent for a large part of Mr. T.'s life. His mother then left him and his brothers abruptly and they were raised by grandparents. Mr. T.'s most significant behavior as a child was missing curfew. Dr. Garcia-Mansilla said Mr. T.'s truancy problems occurred around 11th grade. He had a fight in eighth grade and was put in a special progress group in ninth grade. Dr. Garcia-Mansilla said this did not meet the standards for conduct disorder because that disorder required a pattern of antisocial behavior which you would expect to see well before age 15. Expanding on why she did not believe Mr. T. had evidence of conduct disorder prior to age 15, she testified:

It wouldn't be like one fight, missing school one day. It's supposed to be across a significant period of time. It's supposed to create functional impairment. . . . There is no indication to me that he met the criteria. . . . it's a pattern of disregard, a pattern of behavior.[FN24]

Mr. T. has limited social support which is a risk factor but it is good that he has some community support. Mr. T. was not able to provide a specific explanation for what he would do [*9]if he was attracted to a woman and also angry at her [which occurred with respect to his crimes]. Mr. T. historically has had a poor response to treatment but lately the response has been more mixed. Other than being around criminals, Mr. T. said he did not believe there were external risk factors which would lead him to re-offend. In the past, Mr. T. has been aroused to power and control. Mr. T. has a limited understanding of the relevance of his anger and narcissism to his offending pattern and a limited understanding of the repercussions of his behavior. Dr. Garcia-Mansilla agreed with the assertion that Mr. T. "is just a rapist but doesn't have a mental abnormality".[FN25]

Mr. T. has not engaged in any sexually offensive behavior or incident in almost a year. Treatment at CNYPC is geared towards offenders with paraphilic (sexual) disorders and Mr. T. does not have one. He becomes alienated from other offenders who have paraphilias at the facility which then makes him upset and sets up a harmful spiral. Dr. Garcia-Mansilla does not believe Mr. T. has a deviant sexual arousal to non-consenting persons and that the force he used in committing his rapes was incidental and not a part of his arousal. Mr. T. used a little more force than was necessary but this was not part of his core arousal during the rapes. He has a problem in treatment at CNYPC because he does not admit that he has a deviant sexual arousal to non-consenting persons.

Evidentiary Rulings The Court reserved decision on a few evidentiary issues at the hearing by having the State's expert testify about the disputed information and then reserving decision. The Court has ruled on these issues as follows.

The Court has determined to preclude evidence that Mr. T. committed a fourth rape for which he was not charged or convicted. This information comes from a presentence report for one of Mt. T.'s other rape convictions. The Court of Appeals addressed this issue in their decision upholding Mr. T.'s Mental Abnormality finding in State v. Charada T., 23 NY3d 355 (2014). There, the Court held that the admission of evidence concerning this alleged rape was error, but harmless. The standards for the admission of evidence in a dispositional hearing like this one, in this Court's view, under the Court of Appeals holding in State v. Floyd Y., 22 NY3d 95 (2013), are not identical to the standards for the admission of evidence in a jury trial. Nevertheless, this Court finds the Court of Appeals' reasoning for ruling that the same evidence was inadmissible at the Respondent's trial persuasive here and has precluded such evidence at the instant hearing.

The Court has determined to preclude Dr. DeMarco's testimony that she reviewed a psychopathy score based on the Psychopathy Checklist Revised (the "PCLR") done by a different doctor, Dr. Burgoyne, in 2014. Dr. DeMarco testified that she didn't go through the checklist "item by item" and that she could not "recall" whether she agreed with Dr. Burgoyne on each item but agreed with him "for the most part". She opined that the fact that the score was three years old did not matter because the instrument "doesn't change over a numbers of years".[FN26]

The Court agrees with the Respondent that allowing Dr. DeMarco to testify about a three [*10]year old test she did not administer, that she does not fully agree with, for which she has only a limited recollection and for which the Respondent does not have access to the underlying information used to score the instrument would deny the Respondent the right to confront the witness who prepared the report and under the circumstances here would deprive the Respondent of due-process. In fairness, however, the Court also did not consider the defense cross-examination of Dr. DeMarco regarding other PCLR scores done by other psychologists which she also did not administer.

The Court has determined to preclude Dr. DeMarco's testimony about Dr. Burgoyne's administration of the Severe Sexual Sadism Scale instrument regarding the Respondent in 2014 for the same reason. She agreed that this scale, like the PCLR, required clinical judgment, said it didn't need to be re-administered after a multi-year period had passed and said she agreed with Dr. Burgoyne's score "for the most part".[FN27] None of the Court's evidentiary rulings had any impact on the question the Court has found dispositive here: the absence of evidence of a conduct disorder prior to age 15.

CONCLUSIONS OF LAW [FN28]

In order to find that the Respondent continues to be a dangerous sex offender requiring confinement, the Court must first find Mt. T. continues to have a Mental Abnormality under Article 10. A Mental Abnormality under Article 10 is defined as "[a] congenital or acquired condition, disease or disorder that affects the emotional, cognitive or volitional capacity of a person in a manner that predisposes him or her to the commission of conduct constituting a sex offense and that results in that person having serious difficulty in controlling such conduct". MHL § 10.03 (i). The standard which courts must use in determining whether to subject a sex offender found to have a Mental Abnormality to confinement or SIST is provided by MHL § 10.07 (f):

If the court finds by clear and convincing evidence that the respondent has a mental abnormality involving such a strong predisposition to commit sex offenses, and such an inability to control behavior, that the respondent is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility, then the court shall find the respondent to be a dangerous sex offender requiring confinement. . . . If the court does not find that the respondent is a dangerous sex offender requiring confinement, then the court shall make a finding of disposition that the respondent is a sex offender requiring strict and intensive supervision . . . MHL § 10.07 (f).

State v. Michael M.

In Michael M., 24 NY3d 649 (2014) the Court noted that to be a dangerous sex offender requiring confinement under this standard, the State had to demonstrate the respondent had "such an inability to control behavior, that the person is likely to be a danger to others and to commit sex offenses if not confined . . ." 24 NY3d at 658 (emphasis added in decision). The Court held the statute "clearly envisages a distinction between sex offenders who have difficulty controlling [*11]their sexual conduct and those who are unable to control it. The former are to be supervised and treated as "outpatients" and only the latter may be confined." Id. at 659.[FN29] The evidence in the case, the Court said, indicated the Respondent was struggling with his sexual urges, not that he was "unable to control himself" or "unable to govern his sexual conduct". Id. "But more than this — the inability to control sexual misconduct — would have had to be shown to prove that respondent was a dangerous sex offender requiring confinement." Id.

Prior Court Findings That Mr. T. Has a Mental Abnormality In the instant proceeding, of course, this Court must find, as a threshold matter, that Mr. T. has a Mental Abnormality. A respondent may suffer from a Mental Abnormality at one time and no longer suffer from such a Mental Abnormality later. Here, however, the argument that Mr. T. does not suffer from a Mental Abnormality arises from the lack of evidence that he suffered from a conduct disorder before the age of 15. Obviously, that is a factual issue which predates any Article 10 proceeding.

In State v. Charada T., 107 AD3d 528 (1st Dept 2013) the First Department upheld a jury verdict finding Mr. T. suffered from a Mental Abnormality, holding that an error in allowing testimony about an uncharged rape derived from a presentence report (outlined supra) was harmless. That conclusion was then affirmed by the Court of Appeals in State v. Charada T., 23 NY3d 355 (2014). The Court of Appeals recounted how the State's expert, Dr. Harris, had diagnosed Mr. T. with "three conditions: paraphilia not-otherwise specified (NOS), personality disorder with antisocial traits, and alcohol abuse". 23 NY3d at 359. Like the First Department, the Court of Appeals found the admission of testimony about an uncharged rape from a presentence report was error but deemed the error harmless because "the jury had sufficient admissible evidence before it upon which to find that respondent suffers from a mental abnormality". 23 NY3d at 366.

In the case of In Re Charada T. (Unreported Decision) Index No. CA 2014-002278 (Oneida County Supreme Court, October 30, 2015 [Gigliotti, J.]) the Court found that Mr. T. continued to be a dangerous sex offender requiring confinement at an annual review hearing. In that case, the Respondent's expert opined that Mr. T. did not suffer from a Mental Abnormality and the State's expert opined that Mr. T. had a Mental Abnormality and was a dangerous sex offender requiring confinement.

The State's expert diagnosed Mr. T. with "Other Specified Paraphilic Disorder ("OSPD") (Non-Consent) and ASPD. He also opined Mr. T. was sexually preoccupied and hypersexual, had a high degree of psychopathic traits and had "behavioral markers" indicative of Sexual Sadism Disorder although he did not assign a Sexual Sadism diagnosis. The Respondent's expert testified that Mr. T. did not have any condition, disease or disorder under Article 10. He rejected [*12]the validity of the "Non-Consent" diagnosis. He said Mr. T. could not be diagnosed with ASPD because "there is insufficient evidence of him having a 'conduct disorder' before age 15."[FN30] The Court credited the State's expert's conclusion that Mr. T. suffered from OSDP Non-Consent and ASPD and that expert's conclusion that Mr. T. was hypersexual and sexually preoccupied.

OSPD Non-Consent is Not a Valid Diagnosis It is first clear here that the paraphilia diagnosis which was assigned to Mr. T. in a number of previous proceedings, OSPD Non-Consent (or its prior or equivalent designations, hereinafter collectively "Non-Consent"), is not a valid diagnosis which is generally accepted in the psychiatric community. This and other trial courts have found the diagnosis is not generally accepted following Frye hearings. See, e.g., State v. Kareem M., 51 Misc 3d 1205 (A) (New York County Supreme Court 2016 [Conviser, J.]); State v. Jason C., 51 Misc 3d 553 (Kings County Supreme Court 2016 [Riviezzo, J.]); State v. Smalls, Unreported Decision SP # 180/2012 (Queens County Supreme Court, February 17, 2017 [Holder, J.]). Other trial courts have relied on the diagnosis or denied motions to conduct Frye hearings concerning its validity. Any lack of clarity regarding the current state of the law regarding the diagnosis, however, has been at least temporarily obviated by the recent decision of the Second Department in State v. Richard S., 158 AD3d 710 (2d Dept 2018). There, the Court held that the diagnosis is not generally accepted under the Frye test and that the introduction of evidence of the diagnosis during the respondent's Article 10 trial required a reversal of the verdict finding he had a Mental Abnormality. The Richard S. holding is binding on this Court.

What is significant here is that in each prior proceeding in which Mr. T. was found to have a Mental Abnormality, that finding hinged in part on a Non-Consent diagnosis. That diagnosis is not applicable here.

Mr. T.'s Only Arguable Diagnosis is ASPD

The only diagnosis which the State argues is applicable here is ASPD. But the Court of Appeals has squarely held that this diagnosis alone cannot be the predicate for an Article 10 proceeding. That basic holding has been called into question by subsequent appellate division cases, but it has never been repudiated by the Court of Appeals. Thus, even the State's basic "condition, disease or disorder" claim in this case, a claim this Court has rejected here, rests on a tenuous premise.

In State v. Donald DD. and Kenneth T. 24 NY3d 174 (2014) (in the Donald DD. portion of the decision) the Court's four judge majority held "evidence that a respondent suffers from antisocial personality disorder cannot be used to support a finding that he has a mental abnormality . . . when it is not accompanied by any other diagnosis of mental abnormality". 24 NY3d at 177.[FN31] The Court noted that the United States Supreme Court in the second of its two [*13]landmark decisions on sex offender civil management, Kansas v. Crane, 534 US 407, 413 (2002), held that as a matter of substantive due-process, sex offender civil management statutes "must be sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case." State v. Donald DD., supra, 24 NY3d at 189 (emphasis added in Donald DD.).

The Donald DD. majority said the evidence during the trial indicated that 40- 80% of persons who have been imprisoned could be diagnosed with ASPD. These statistics, the Court opined, indicated a diagnosis of ASPD alone was insufficient as a matter of constitutional due-process to distinguish sex offenders subject to civil management from ordinary recidivists. "ASPD", the Court asserted, "means little more than a deep-seated tendency to commit crimes". 24 NY3d at 190 quoting State v. Shannon S., 20 NY3d at 110 [Smith J., dissenting].

The Donald DD. Court also addressed the psychopathy issue in a footnote, saying that in addition to their other diagnoses, both of the State's experts "opined that Donald DD. suffered from an extreme form of ASPD known as psychopathy. However, they did not testify that this finding materially affected their conclusions regarding Donald DD.'s mental abnormality under Article 10." (n. 3).

In addition to its basic holding, Donald DD. was initially understood by multiple courts (including this one) to require that a respondent's Article 10 diagnoses include a sexual disorder. The majority held:

Its use [that is, the use of ASPD as a predicate disorder under Article 10] in civil confinement proceedings, as the single diagnosis underlying a finding of mental abnormality as defined by Mental Hygiene Law article 10, proves no sexual abnormality. It therefore cannot be the sole diagnosis that grounds such a finding. 24 NY at 190.

The majority also favorably cited arguments by the respondent that ASPD was not a valid Article 10 predicate because it was not a sexual disorder:

We believe that an ASPD diagnosis has so little relevance to the controlling legal criteria of [Article 10] that it cannot be relied upon to show mental abnormality . . . As Donald DD.'s counsel expressed the objection, ASPD is "not a sexual disorder". Id.Dr. Plaud, testifying for Donald DD., opined that while ASPD can act "in combination with . . . a diagnosable sexual disorder" to produce a potent abnormal condition, it cannot "in and of itself. . . predict sexual impulse control". Id. (emphasis added).[FN32]

Here, Mr. T. has no arguable diagnosis, other than ASPD. It is also clear he does not have a sexual disorder. Reading Donald DD. alone, in this Court's view, would compel the conclusion that the petition here would have to be dismissed, even if Mr. T. had ASPD.

Case Law Limiting the Scope of Donald DD.

Case law since Donald DD., however, has significantly limited its scope. First, in its decision in State v. Dennis K., 27 NY3d 718 (2016) the Court of Appeals said its holding in Donald DD. did not require that a Mental Abnormality predicate had to include a sexual disorder diagnosis:

To be sure, we stated in Donald DD. that ASPD by itself "proves no sexual abnormality" but that was in the context of our observation that an ASPD diagnosis means nothing more than a person has a tendency to commit crimes. (citation omitted). As such, Donald DD. did not engraft upon the "condition, disease or disorder" prong a requirement that the "condition, disease or disorder" must constitute a "sexual disorder". Id., at 743.

Appellate division cases following Donald DD. (but not case law from the Court of Appeals) has also upheld Mental Abnormality judgments where a respondent has ASPD plus some "condition" which does not rise to the level of a diagnosis. As noted supra, Donald DD. found the respondent's diagnosis of ASPD invalid, even though the respondent had also been assigned the condition of "psychopathy". In State v. Jerome A. (Anonymous) supra, however, the First Department found the diagnosis of ASPD along with psychopathy sufficient to withstand a dismissal motion at the probable cause stage of an Article 10 proceeding.

An even more expansive treatment of the legitimacy of ASPD came in the Fourth Department's decision in Suggs v. New York State Office of Mental Health, 142 AD3d 1283 (4th Dept 2016). In Suggs, the Court reversed a directed verdict finding the Respondent did not suffer from a Mental Abnormality at a confinement annual review hearing. Suggs was diagnosed with ASPD plus "psychopathic traits". The trial court directed a verdict for the Respondent since, pursuant to Donald DD., Suggs had never been diagnosed with a sexual disorder. The Court of Appeals in Dennis K. then said that Donald DD. had not required a sexual disorder diagnosis. The Fourth Department reversed the trial court's ruling for that reason. What the Fourth Department did not explicitly address, however, was the sufficiency of the Respondent's remaining conditions. But the Respondent's only diagnosis in the case was ASPD.

In Christopher PP. v. State, 151 AD3d 1334 (3d Dept 2017) the Court ruled that the State's experts' diagnoses of ASPD and "sexual preoccupation" were legally sufficient. Summarizing the testimony of the two state experts, Drs. Prince and Hadden, the Court said:

Prince characterized sexual preoccupation as a "condition" noting that it was not included in the [DSM] because it was "very difficult" to operationally define what would constitute such behavior. Hadden referred to sexual preoccupation as a "behavioral condition," a "behavioral pattern," as well as a "long-term vulnerability," noting that one reason that it was not considered a mental disorder was due to the risk of moral attitudes coming under the guise of science . . ." at 1337, quoting testimony of Dr. Alison Prince.

The State's experts outlined how sexual preoccupation impacted ASPD. The Respondent's expert, Dr. Schlosser, said sexual preoccupation was a "cognitive or thought process" but not a "condition, disease or disorder" because there was "no diagnosis or criteria" for it. The Court outlined the Respondent's history of sexual offending and noted the State's experts' conclusion that sexual preoccupation was a "condition".

The First Department reached a contrary conclusion from the Christopher PP. Court, however, in State v. Gen C., 128 AD3d 467 (1st Dept 2015). In Gen C., the Court found ASPD plus "hypersexuality/sexual preoccupation" were legally insufficient Mental Abnormality [*14]predicates. The Court found that "hypersexuality/sexual preoccupation" was not an "independent mental abnormality diagnosis" or "an independent mental abnormality" under Article 10. The Court held that, at most, "hypersexuality/sexual preoccupation" was a "recognized mental condition" but that there had been no evidence presented in the case that it satisfied Article 10's predisposition and serious difficulty elements.

A closely analogous situation to the Suggs case exists here. Like Suggs, the instant matter is an annual review hearing. Like Suggs, the only diagnosis the Respondent has is ASPD. But, again like Suggs, he also has other conditions, particularly, "psychopathic features". Similar combined diagnoses and conditions were sufficient to allow confinement in Suggs. Jerome A. (Anonymous), Suggs and Christopher PP. also suggest that an ASPD diagnosis along with Mr. T.'s other "conditions" would be sufficient here.

This Court believes, respectfully, that the holdings in Jerome A.(Anonymous), Christopher PP. and Suggs are contrary to the Court of Appeals decision in Donald DD., since the respondents in these three cases had no diagnosis other than ASPD. This Court believes the First Department correctly analyzed the distinction between "diagnoses" and "conditions" in Gen C. Holdings in which ASPD plus psychopathy or psychopathic traits were held sufficient to allow an Article 10 case to proceed, however, (Jerome A., (Anonymous) and Suggs) as well as the general expansive treatment given to "conditions" in Christopher PP. are also binding on this Court. Given the weight of these authorities, the Court has assumed here that, if Mr. T. could be validly diagnosed with ASPD, and had other "conditions", he would have sufficient Article 10 predicates.[FN33] But the contention that an Article 10 petition is sufficient where a respondent's only diagnosis is ASPD is very different than the contention that such a petition is sufficient when a respondent has no diagnosis. That latter situation, in this Court's view, is what exists here.

Criteria for ASPD Under the Diagnostic and Statistical Manual of Mental Disorders, 5th Edition (the "DSM-5") ASPD is a recognized diagnosis with defined criteria. Four criteria must be met for an ASPD diagnosis. The one relevant here is that: "There is evidence of conduct disorder with onset before age 15 years".[FN34] "The essential feature of antisocial personality disorder is a pervasive pattern of disregard for, and violation of, the rights of others that begins in childhood or early adolescence and continues into adulthood".[FN35] (emphasis added). The DSM-5 describes "conduct disorder" as follows: Conduct disorder involves a repetitive and persistent pattern of behavior in which the basic rights of others or major age-appropriate societal norms or rules are violated . The specific behaviors characteristic of conduct disorder fall into one of four categories: aggression to people and animals, destruction of property, deceitfulness or theft, or [*15]serious violation of rules.[FN36]

"Conduct disorder" is also a separate DSM-5 diagnosis with detailed criteria. That diagnosis requires that at least 3 of 15 listed criteria in which rights, rules or norms are violated in accordance with the four general categories listed above have been demonstrated. One of the 15 criteria is that a person "[i]s often truant from school, beginning before age 13 years". It is also required that the disorder "causes clinically significant impairment in social, academic or occupational functioning".[FN37]

The DSM-5 also includes what it terms an "Alternative DSM-5 Model for Personality Disorders" (the "Alternative Model"), including ASPD. The Alternative Model is described in the DSM-5 as providing a "new approach" designed to avoid problems with the current approach to diagnoses.[FN38] In its decision in State v. Nicholas T., 55 Misc 3d 884, 888-889 (New York County Supreme Court 2017) this Court denied the respondent's motion to preclude the reliance, in part, by the State's experts, on the Alternative Model to support their conclusion that the respondent had psychopathy or psychopathic traits although this Court noted that the Alternative Model had been described as "emerging" and "warranting further study" (quotation omitted). The Alternative Model for ASPD does not include a requirement that there be evidence of a conduct disorder before the age of 15.

Neither expert at the instant hearing, however, relied upon, cited or mentioned the Alternative Model ASPD diagnosis, even in passing. Nor did the parties offer any argument that the Alternative Model should be relied upon in this case. In this Court's view, it is not qualified to provide a psychiatric diagnosis, particularly one based on an "emerging" view "warranting further study" when no psychiatric expert at a hearing has provided or even alluded to the notion that such a diagnosis might be assigned.

The State Did Not Provide Evidence of Conduct Disorder Prior to Age 15

Therefore, Mr. T. Cannot Be Diagnosed with ASPD

The Court agrees with Dr. Garcia-Mansilla's testimony that there was not evidence presented during the hearing that Mr. T. suffered from a conduct disorder prior to age 15. The Court does not agree with Dr. DeMarco's conclusion on that issue. The record indicates the following. First, Mr. T. had a "fight" in eighth grade. But having one "fight" (whatever that might mean) at one point in a child's life is not evidence of a conduct disorder. Second, Mr. T. had a chaotic and difficult family structure and upbringing. That speaks to the stressors which were placed on him as a child. It says nothing about his behavior in response to those stressors. Third, he missed his curfew as a child. But again, missing a curfew is not evidence that Mr. T. suffered from a pervasive conduct disorder.

Dr. DeMarco also testified that Mr. T. acknowledged "being introduced at a young age to an antisocial life-style" (n.11) and "admitted to engaging in significant behavioral problems as [*16]early as age six" (n.8, supra). Dr. DeMarco did not say, however, what those behaviors were or describe the lifestyle Mr. T. was introduced to. Nor did she describe where in the records the information came from or what specific ages they concerned.

The only facts in the record which arguably supported the "evidence of conduct disorder" requirement for an ASPD diagnosis, in the Court's view, concerned Mr. T.'s truancy. Dr. DeMarco, however, obviously did not know when that truancy occurred or whether it was prior to the age of 15. She testified that: "There was a time when he was in high school or I believe in eighth grade" where he became truant. Id. Dr. DeMarco was also unsure about other details regarding Mr. T.'s history, as outlined supra, including the time period during which Mr. T. received prison disciplinary infractions, how those infractions were adjudicated and the time periods and nature of Mr. T.'s criminal history of non-sexual offenses. Her lack of clear recollection of the details of Mr. T.'s truancy mirrored her lack of recollection of other details about his life.

Dr. Garcia-Mansilla did not seem to have any doubt about what the record revealed about Mr. T.'s truancy. She testified it began in the 11th grade. The Court takes judicial notice that a child with Mr. T.'s birth date would normally be in the 11th grade of school at ages 16-17. That would be consistent with the rest of the record here, which indicated that Mr. T.'s antisocial behaviors arose around the time he was 18, not before the age of 15.

Three points are significant with respect to this record. First, although Article 10 provides great leeway to expert witnesses to recount information to explain their opinions under circumstances which might otherwise be inadmissible hearsay, Article 10 evidence must still meet threshold standards of reliability. State v. Floyd Y., 22 NY3d 95 (2014). A court cannot rely upon information for which an expert both does not cite a source and is uncertain about some of its most basic parameters. It cannot rely upon vague generalizations devoid of any specific behavioral description like the assertion that a respondent was "introduced to an anti-social lifestyle" or had unspecified "significant behavioral problems", with no references to a record, to substantiate a diagnosis which is then relied upon to subject an offender to possible lifetime confinement.

Second, "conduct disorder" requires "a repetitive and persistent pattern of behavior in which the basic rights of others or major age-appropriate societal norms or rules are violated". (n. 33, supra, quoting DSM-5). There is no evidence Mr. T. had any such condition prior to the age of 15. The DSM-5 conduct disorder diagnosis requires that 3 of 15 specific categories of behavior be manifested for a conduct disorder to be diagnosed. It includes behaviors like being physically cruel to people or animals, stealing, setting fires or running away from home. Reviewing these categories, it is clear that the hearing evidence did not support the contention that Mr. T. manifested even one of them during his childhood.[FN39] Indeed, for truancy to qualify as one behavior supporting a conduct disorder diagnosis, a subject must have been "often truant from school, beginning before age 13 years" (rather than the "before age 15" requirement applicable to other kinds of conduct disorder behaviors). There was no reliable evidence presented at the hearing that Mr.'s T.'s truancy met that criteria.

As noted supra, "[t]he essential feature of antisocial personality disorder is a pervasive [*17]pattern of disregard for, and violation of, the rights of others that begins in childhood or early adolescence and continues into adulthood" (n. 35, supra). As Dr. Garcia-Mansilla testified, to be diagnosed with ASPD, behavioral problems must "extend[s] back into childhood or adolescence" (n. 14, supra). Behavioral problems must be "pervasive" (Id.) and create "functional impairment" (n. 24, supra). The evidence of these criteria were absent at the hearing with respect to Mr. T.'s life prior to the age of 15.

This "evidence of conduct disorder" requirement to diagnose ASPD is not a technical or optional rule. It is a requirement for an ASPD diagnosis. This Court cannot simply fill in the blanks. It cannot rewrite the diagnostic criteria for ASPD because Mr. T. is dangerous. As Dr. Garcia-Mansilla testified: "I did not find evidence of conduct disorder anywhere, and that's really essential to the diagnosis. It's required in the DSM-5." (n. 14, supra). She said she had spoken to Mr. T.'s mother (something Dr. DeMarco did not seek to do) because "it became unclear why he was being diagnosed with ASPD when it didn't look like there was any early conduct problems" (n. 12, supra).

Without ASPD, Mr. T. Has No Psychiatric Diagnosis Absent an ASPD diagnosis, it is clear that Mr. T. does not have a psychiatric diagnosis of any kind. The Court did credit Dr. DeMarco's opinion that Mr. T. had a number of other conditions relevant to his sexual offending. Dr. DeMarco testified that Mr. T. had a deviant sexual arousal to non-consenting persons, was sexually preoccupied and had "psychopathic features" associated with his alleged ASPD. The record fully supported those conclusions. The question here, however, is whether such descriptors are sufficient to meet the "condition, disease or disorder" requirement of Article 10's Mental Abnormality definition. The Court believes they are not.

The strongest argument for why such descriptors should be sufficient Article 10 predicates comes from what is normally a dispositive source of authority: the words of the statute. The words "condition, disease or disorder" are written in the alternative. "Condition" is the broadest of these three categories. In normal parlance a "condition" means "the state of something, especially with regard to its appearance, quality or working order";[FN40] "a state of being"[FN41] or "the particular state that something or someone is in".[FN42] Defined this way, Mr. T. suffers from a number of conditions, that is, sexual preoccupation, a deviant sexual arousal to non-consenting sexual partners and psychopathic features.

But there are two related problems with reading Article 10's "condition" requirement this broadly. The first is that it would make the "condition, disease or disorder" requirement meaningless. This Court has presided over Article 10 cases for ten years. Every sex offender who has serious difficulty controlling sexually offending behavior can be validly described as having "a state of being" which is relevant to and a causative factor for his sexual offending. Sex offenders may be validly described, for example, as being sexually preoccupied or hypersexual, [*18]subject to a deviant sexual arousal (to any number of sexual targets), suffering from psychopathy, psychopathic traits or psychopathic features, impulsive, anti-social, lacking empathy, sadistic evidencing anger, being aroused to power and control or having cognitive distortions (of any number of kinds). All of these are states of being which may cause serious difficulty in controlling sexually offending behavior. Every offender who has serious difficulty controlling sexually offending behavior, has that behavior caused by something, that is, some "condition" which can be named. But that does not make any such condition a sufficient Article 10 predicate. A court should assume that every word in a statute has a meaning and was inserted for a purpose. See Bliss v. Bliss, 66 NY2d 382 (1985); Direen Operating Corp. V. State Tax Commission, 46 AD2d 191 (3d Dept 1974); NY McKinney's Statutes § 231. Construing the term "condition" to effectively apply to any sex offender with serious difficulty controlling sexually offending behavior would violate that principle. It would render the "condition, disease or disorder" requirement of the statute superfluous.

The more important point is that the statute must be read in conjunction with the constitutional requirements applicable to sex offender civil management statutes like Article 10. The United States Constitution requires that before a sex offender may be subject to possible lifetime confinement for having a "Mental Abnormality" more must be shown than that he is dangerous. What that extra element is can be understood by reviewing the decisions of the United States Supreme Court and the New York Court of Appeals relevant to the "condition, disease or disorder" requirement. What is required is a valid psychiatric diagnosis. Mr. T. does not have one.

Constitutional Underpinnings of the Diagnosis Requirement

The requirement for a valid psychiatric diagnosis is rooted in the requirements of substantive due-process applicable to sex offender civil management statutes like Article 10 as reflected in the two seminal United States Supreme decisions outlining the constitutional requirements for such statutes, Kansas v. Hendricks, 521 US 346 (1997) and Kansas v. Crane, supra. The United States Supreme Court has held that to satisfy due-process, it is not enough that a civil management statute apply to offenders who are dangerous. "We have sustained civil commitment statutes when they have coupled proof of dangerousness with proof of some additional factor, such as a 'mental illness' or 'mental abnormality'". Kansas v. Hendricks, supra 521 US at 358 (citations omitted).

While the Hendricks Court held that a "mental illness" was not a prerequisite for civil management, it did require some description of a respondent's mental condition which "narrows the class of persons eligible for confinement to those who are unable to control their dangerousness". Id. Thus, the Court noted, terms like "incompetency" or "insanity" had been held to satisfy the requisites of due-process in other contexts. Id. at 359. Hendricks, a pedophile, the Court held, was adequately distinguished "from other dangerous persons who are perhaps more properly dealt with exclusively through criminal proceedings". Id. at 360.

The notion that a psychiatric diagnosis was necessary to serve the essential constitutional function of distinguishing offenders subject to civil management from those who were simply dangerous was expanded in the Kansas v. Crane, supra. There the Court held, in discussing the requirement that sex offenders must lack the ability to control sexually offending behavior:

It is enough to say that there must be proof of serious difficulty in controlling behavior. [*19]And this, when viewed in light of such features of the case as the nature of the psychiatric diagnosis, and the severity of the mental abnormality itself, must be sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case. 534 US at 413. (emphasis added).

The emphasis is added here to point out that the Crane Court obviously presumed sex offenders subject to civil management would have some kind of valid psychiatric diagnosis, although, like the Hendricks Court, Crane also pointed out that legal constructs like "Mental Abnormality" need not precisely conform to definitions used in psychiatry. Like the Hendricks Court, the Crane Court relied on a psychiatric diagnosis to perform the essential constitutional function of distinguishing sex offenders who could be subject to civil management from dangerous but typical recidivists. As the New York Court of Appeals held in State v. Donald DD. & Kenneth T., supra: "We must interpret the Mental Hygiene Law article 10 statute on the assumption that it accords with these constitutional requirements" 24 NY3d at 189 (citing the above quoted passage).

Over the past six years, the New York Court of Appeals has issued three decisions which have analyzed the "condition, disease or disorder" requirement. State v. Shannon S., 20 NY3d 99 (2012); State v. Donald DD. & Kenneth T., supra, and State v. Gary K., supra. Each decision has reflected the same principle: that an Article 10 proceeding requires that a respondent have a valid psychiatric diagnosis.

State v. Shannon S.

In State v. Shannon S., the Court of Appeals held that the diagnosis of "Paraphilia NOS" under the former edition of the Diagnostic and Statistical Manual of Mental Disorders, the DSM-4-TR, was sufficient to support a Mental Abnormality finding even though the specific variant of the NOS diagnosis in the case, Paraphilia NOS - Hebephilia (a deviant sexual arousal to pubescent children) was not a diagnosis explicitly included in the DSM. The specific holding in the case is not directly relevant here and has been called into question in subsequent case law.[FN43] [*20]Shannon S. is significant here, however, because of what it said about Article 10's "condition, disease or disorder" requirement.

Shannon S. most obviously stands for the proposition that a diagnosis need not be explicitly included in the DSM be a valid Article 10 predicate. The Court held that there was an imprecise fit between definitions provided in psychiatry and law and that the absence of a specific diagnosis in the DSM did not mean the diagnosis could not support an Article 10 petition.

Shannon S. is important here, however, for an underlying premise which the Court apparently took to be so obvious that it needed no discussion: that to be subject to Article 10, a respondent had to have a diagnosis of some kind. That proposition was of course correct since the United States Supreme Court had twice identified a respondent's psychiatric condition as a linchpin of legitimate civil management statutes, an important factor which separated valid civil commitment laws from unconstitutional efforts to subject dangerous sex offenders to indefinite preventive detention. The entire Shannon S. majority opinion focused on what the requisites for a legitimate Article 10 diagnosis were, not whether one was necessary. See 20 NY3d at 105-108.

State v. Donald DD. & Kenneth T. The same principle was stated more directly in the Court of Appeals' decision in State v. Donald DD. & Kenneth T., supra. The Donald DD. portion of the decision, as noted supra, held that "[a] diagnosis of ASPD alone — that is, when the ASPD diagnosis is not accompanied by a diagnosis of any other condition, disease or disorder alleged to constitute a mental abnormality — simply does not distinguish the sex offender whose mental abnormality subjects him to civil commitment from the typical recidivist convicted in an ordinary criminal case." 24 NY3d at190 (emphasis added). Obviously, if an ASPD diagnosis without some additional diagnosis is an insufficient Article 10 predicate, then a petition supported by no diagnosis could not possibly be sufficient. The Court held that: . . . Supreme Court erred in using an ASPD diagnosis . . . but without evidence of some independent mental abnormality diagnosis, to ground a finding of mental abnormality within the meaning of Mental Hygiene Law article 10. 24 NY3d at 191 (emphasis added).

As noted supra, the reach of Donald DD. has been significantly limited in subsequent decisions. Appellate courts (but not the Court of Appeals) have found Article 10 cases sufficient where a respondent's only diagnosis is ASPD. But none of these subsequent cases have allowed a petition to proceed where a respondent has no psychiatric diagnosis.

State v. Dennis K. The identical principles are also reflected in the Dennis K. decision, which concerned three respondents. In the first case, concerning Respondent Dennis K., the Court held that the twin diagnoses of ASPD and Paraphilia NOS-Non Consent were sufficient Mental Abnormality predicates. The Court held that it did not need to consider the validity of the NOS diagnosis because no Frye challenge had been mounted to it. The Court rejected a legal sufficiency challenge to the Respondent's Mental Abnormality judgment based on Donald DD.'s command that a Mental Abnormality could not be premised solely on ASPD because "[u]nlike the sole diagnosis of ASPD in Donald DD., there were two diagnoses here: ASPD and paraphilia NOS". 27 NY3d at 733.

In the second case, concerning Respondent Anthony N., as noted supra, the Court [*21]rejected the widely held view at the time that the Donald DD. decision had held that a respondent must have a sexual disorder. The Court held that the "diagnosis of borderline personality disorder" was sufficient to constitute a "condition, disease or disorder" under Article 10. 27 NY3d at 744. Here again, it was a diagnosis (of a well recognized psychiatric disorder) which made the "condition, disease or disorder" prong of the Mental Abnormality definition legally sufficient.

Finally, with respect to Respondent Richard TT., the Court found legally sufficient the combined diagnoses of ASPD, borderline personality disorder and psychopathy since these combined findings did not rely on a diagnosis of ASPD alone. Here again, however, the underlying premise was that a "condition, disease or disorder" had to include at least one valid diagnosis (other than ASPD) to be legally sufficient. In each of the three Dennis K. cases, the State clearly met that threshold test.

The People assert that a respondent need not have "a specific diagnosis" in order to have a Mental Abnormality.[FN44] When asked by the Court whether, under Article 10, "there doesn't have to be a diagnosis of any kind", the State responded: "that is what Shannon S. says" [referring to the case of State v. Shannon S., supra] and also asserted: "I don't think the Court has to find a specific diagnosis".[FN45] The People also argued that the DSM-5 is not a "cookbook" which a psychiatric expert must follow in all of its particulars in order to form a valid expert opinion.[FN46] But Shannon S. does not say that an Article 10 respondent need not have a diagnosis. It rather asserted that a diagnosis could be valid even though the specifier of the "Not Otherwise Specified" ("NOS") diagnosis in that case was not explicitly outlined in the DSM.

The evocative contention that the DSM-5 is not a "cookbook", in the Court's view, speaks to an important point. Courts should not play amateur psychologist. A court cannot simply look at the DSM, find a blank spot in an expert's description of a diagnostic criterion and then conclude that a diagnosis is not valid because an expert did not check every box on a DSM list. But that is not what the Court is doing here. The Court here is crediting the expert opinion of Dr. Garcia-Mansilla, with respect to whether Mr. T. can be diagnosed with ASPD, and crediting the State's expert, Dr. DeMarco, on a number of other points.

It might also be asked, why it should matter that a person with a life-long history of adult anti-social behavior began that behavior at age 18, rather than earlier? The distinction might say nothing about whether an offender was dangerous. The answer is that the diagnostic criteria for mental disorders are defined by the psychiatric profession, not courts. Courts obviously make decisions based on input from psychologists and psychiatrists. But courts do not define what the parameters of a psychiatric diagnosis should be.

Mr. T.'s Lack of a Psychiatric Diagnosis Does Not Speak to His Dangerousness The fact that Mr. T. does not have a valid psychiatric diagnosis does not mean he is not dangerous. In that respect, this Court largely agreed with Dr. DeMarco's conclusions. Mr. T.'s [*22]sex crimes were horrific. He has evidenced an arousal to non-consensual sex. His disciplinary history since being confined has been problematic and included numerous instances of sexually offensive conduct (although not rape, attempted rape or similar sexually offending behaviors). He has made limited progress in sex offender treatment. He does not have a fully developed relapse prevention plan designed to interrupt any possible sexual offense and continues to have cognitive distortions about his offending. This Court has not reached the question here of whether Mr. T. is a dangerous sex offender requiring confinement because it has concluded that he does not have a Mental Abnormality. There is certainly significant evidence, however, that Mr. T. is dangerous. Thus, the instant decision may well serve to release a dangerous sex offender into the community, without Article 10 supervision, where he will be at significant risk to commit another sex crime. But that is a result the Court believes is compelled by the law and the evidence in this case.

It is reflection of the fact that under Article 10, not all dangerous sex offenders may be civilly managed. The purpose of Article 10, of course, is to protect the public. But it does not optimally accomplish that goal because offenders must be not only dangerous, but suffering from some "condition, disease or disorder" (hereinafter the "condition requirement") to be subject to Article 10. The condition requirement does not exist to protect the public. A violent rapist may be dangerous without having a Mental Abnormality. The condition requirement provides a key part of the justification for bringing offenders into the Article 10 system. Without it, Article 10 would simply be a statute which subjected sex offenders with serious difficulty controlling sexually offending behavior to indefinite preventive detention.

Our society might opt to have such a system. Such a system might make us safer in some respects. We might decide that offenders who were dangerous should be confined until they no longer posed a threat. Our system does not allow that for two underlying reasons. First, we consider it wrong to punish an offender for something he has not yet done. Article 10 answers that objection by styling its confinement and supervision systems as not being punishment (although, of course, being held indefinitely in a secure psychiatric institution is not likely seen as a beneficent intervention by most offenders). It is not punishment, primarily, because the system's goal is not only protecting the public through incapacitation but also offering treatment to offenders who have a "Mental Abnormality". Absent a Mental Abnormality, however, the treatment rationale obviously cannot serve to justify indefinite confinement or supervision.

The second reason why indefinite preventive detention absent a Mental Abnormality is not justified is that we are not usually very good at predicting which offenders will offend again. In the science fiction thriller "Minority Report", Tom Cruise worked for an agency which prosecuted "future crimes", crimes which could purportedly be predicted with perfect accuracy in the movie's fictional future world. As the plot unfolds, it becomes apparent that this seemingly infallible prediction system may be flawed. Our ability to predict future crimes in today's real world, however, is obviously very limited. It is therefore problematic to confine an offender based on what we believe he might do. We usually only confine offenders for what they have done.

Article 10 answers that objection in two ways. First, although the "serious difficulty" requirement of the Mental Abnormality definition inherently requires a prediction of future dangerousness, it also requires that this future dangerousness arise from a volitional impairment. [*23]A rapist who has no volitional impairment, who simply plans, calculates and carries out forcible rapes with no loss of control, may be more dangerous than a rapist who rapes because he has serious difficulty controlling his sexually offending behavior. But the former offender cannot be subject to Article 10. He does not meet the criteria for admission into the system. He may be very dangerous. He may be subjected to lifetime incarceration in our criminal justice system. But he cannot be civilly confined.

Second, the "serious difficulty" requirement must arise from a valid psychiatric diagnosis. That diagnosis must cause the volitional impairment. As Judge Smith wrote in his three judge dissenting opinion in State v. Shannon S., supra, "unless 'mental abnormality' is defined with scientific rigor, such statutes could become a license to lock up indefinitely, without invoking the cumbersome procedures of the criminal law, every sex offender a judge or jury thinks likely to offend again." 20 NY3d at 109 [Smith, J., dissenting]. That is precisely what would occur here were the instant petition not dismissed. That might protect the public. Mr. T. would be sure to not harm anyone in the community, so long as his confinement continued. But it would violate the law.

Here, the Court believes Mr. T. does not have any valid "condition, disease or disorder" under Article 10. He therefore cannot be subject to civil management. That is true no matter how dangerous he might be. For all of those reasons, the petition is dismissed and the Respondent is ordered to be released. This order shall be stayed for 45 days from the date of this order, to allow the State sufficient time to seek a stay pending appeal from the Appellate Division, if they choose to do so.

March 23, 2018

______________________

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

Footnote 1:This annual review hearing was originally venued in Oneida County. The Respondent moved to change the venue of the hearing to New York County, arguing that was necessary so Mr. T.'s mother could testify. The Oneida County Supreme Court denied the motion, but that decision was reversed by the Fourth Department, which held that the trial court "improvidently exercised its discretion". In Re Application for the Discharge of Charada T., 149 AD3d 1588 (4th Dept 2017). The Fourth Department held that Mr. T.'s mother's proposed testimony "concerning his stated goals and priorities, likely living arrangements, and the availability and extent of a familial support system in the event of release, is material and relevant to the issue [SIC] whether he 'is likely to be a danger to others and to commit sex offenses if not confined . . .'" (quotation omitted). The decision did not indicate whether there was an impediment to Mr. T.'s mother testifying in Oneida County or testifying by video-conference. The Respondent, however, then did not call Mr. T.'s mother as a witness at the instant hearing. Neither party moved to transfer the venue of the hearing back to Oneida County. The hearing was then conducted here in Manhattan. There was also virtually no evidence presented by the Respondent during the instant hearing concerning the subject of the mother's proposed testimony, as that proposed testimony was outlined in the Fourth Department decision.

Footnote 2:Where the term "Antisocial Personality Disorder" appears in the transcript and is quoted here, the words are quoted using the acronym "ASPD", rather than the full term "Antisocial Personality Disorder".

Footnote 3:Hearing transcript, p. 25.

Footnote 4:Id., p. 26

Footnote 5:Id., p. 50. DOCS (which is now called the "Department of Corrections and Community Supervision" or "DOCCS") has a three tiered disciplinary assessment system with Tier 3 being the most serious category of infraction, Tier 2 being the moderate category and Tier 1 being the least serious.

Footnote 6:Id., p. 83

Footnote 7:Id., pp. 101 - 102

Footnote 8:The transcript notes this word as "cool" rather than "school" but that is an obvious typo.

Footnote 9:December 18, 2017 transcript, pp. 10-11.

Footnote 10:Id., p. 12

Footnote 11:Id., p. 27

Footnote 12:Id., p. 45

Footnote 13:The transcript cites this word as "persuasive" but it is obvious the witness used the term "pervasive".

Footnote 14:December 18, 2018 transcript, p. 46.

Footnote 15:Id., p. 47

Footnote 16:Id., p. 48

Footnote 17:Id., p. 57

Footnote 18:The transcript cites the instrument as the "RSVP" but that is obviously a typographical error.

Footnote 19:Id., p. 63

Footnote 20:Id., p. 66

Footnote 21:Id., p. 67

Footnote 22:Id., p. 71

Footnote 23:Id., p. 75

Footnote 24:Id., p. 81

Footnote 25:Id., p. 91

Footnote 26:Id., pp. 66-67

Footnote 27:Id., p. 78

Footnote 28:Certain passages in the Court's legal analysis are copied or derived from earlier published or unpublished decisions of this Court, without citation to this Court's prior decisions.

Footnote 29:By "outpatients" the Court clearly intended to refer to offenders placed on SIST rather than confined. While the Michael M. Court held that such SIST offenders must demonstrate "difficulty" controlling sexually offending behavior, the statute (as the Michael M. Court also recognized) requires "serious difficulty" before civil management may be imposed. (emphasis added). See, e.g., MHL § 10.03 (i) (defining a "Mental Abnormality"); Michael M. 24 NY3d at 658. In State v. James F., 50 Misc 3d 690 (New York County Supreme Court 2015) this Court provided an extended analysis and critique of the Michael M. decision.

Footnote 30:SlipOp at 6.

Footnote 31:The phrase "diagnosis of mental abnormality" which was used by the Court here and similar formulations by appellate courts in which the term "mental abnormality" has been referred to as a "diagnosis" should be clarified. The term "Mental Abnormality" under Article 10 is not a diagnosis or a psychiatric term: it defines the legal requirements for subjecting a respondent to SOMTA, which include the requirement for a "condition, disease or disorder" which causes a predisposition to commit and serious difficulty in controlling sexually offending behavior.

Footnote 32:See State v. Jerome A., 48 Misc 3d 1229 (A), 2015 NY SlipOp 51303 (U) (New York County Supreme Court 2015 [Conviser, J.]), reversed, State v. Jerome A. (Anonymous), 137 AD3d 557 (1st Dept 2016) (outlining trial court interpretations of Donald DD. in the year following the decision).

Footnote 33:This Court provided a more detailed analysis of the evolution of the Donald DD. rule through October, 2016 in its decision in State v. Gary K., 53 Misc 3d 1207 (A) (New York County Supreme Court 2016).

Footnote 34:DSM-5, p. 659

Footnote 35:Id.

Footnote 36:Id.

Footnote 37:Id., pp. 469 - 470

Footnote 38:DSM-5, p. 761

Footnote 39:DSM-5, pp. 469 - 470.

Footnote 40:Google Search (available on the web)

Footnote 41:Merriam-Webster Online Dictionary

Footnote 42:Cambridge English Dictionary (available on the web)

Footnote 43:In State v. Donald DD. & Kenneth T., supra, the Court called into question but did not overrule the conclusion that Paraphilia NOS - Hebephilia was a valid diagnosis, noted that no Frye hearing had been held in Shannon S. or the instant case and said the legitimacy of the diagnosis would have to be decided at a Frye hearing. 24 NY3d at 187. Trial courts which have subsequently conducted Frye hearings on the diagnosis have reached varying conclusions. Two trial courts have found that the diagnosis of OSPD - Hebephilia is not generally accepted. State v. Ralph P., 53 Misc 3d 496 (New York County Supreme Court 2016 [Conviser, J.]); State v. David D., 53 Misc 3d 1041 (Albany County Supreme Court 2016 [Hartman, J.]). In State v. Mercado, 50 Misc 3d 512 (Kings County Supreme Court 2015 [Riviezzo, J.]) the Court, following a Frye hearing, found the diagnosis of OSPD "sexual attraction to female teenagers" was not generally accepted. On the other hand, in State v. Vanderpool, Unreported Decision, Index No MH45118-2013, (Erie County Supreme Court, May 26, 2016 [Michalski, J.]) the Court found, following a Frye hearing, that Hebephilia was a generally accepted diagnosis. There is not yet any appellate case law on the subject.

Footnote 44:Argument on motion, February 6, 2018.

Footnote 45:December 18, 2017 transcript, p. 118.

Footnote 46:Id.