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Matter of State of N.Y. v. Frederick M.

OSPD (Non-Consent) Diagnosis Not Generally Accepted Under 'Frye Precluding Trial Testimony

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Issue Presented

*1 In this proceeding under Article 10 of the Mental Hygiene Law, the respondent, Frederick M., moved by motion, dated May 19, 2017, for an order precluding testimony at trial concerning portions of the diagnoses that form the basis of the Petition for Civil Management filed by the State of New York (“the State”) on March 16, 2016. Specifically, respondent moves to preclude the testimony of the State’s expert, Dr. Hannah Geller, in its entirety asserting 1) that the diagnosis of other specified paraphilic disorder (non-consent) (“OSPD (nonconsent)”), contained in the Diagnostic and Statistical Manual, Fifth Edition, (“DSM-V”), is not generally accepted by the relevant scientific community under Frye v. United States (293 F 1013, 54 App DC 46 [DC Cir 1923]); and 2) that the remaining diagnoses which were “considered but not assigned” must be precluded because they cannot be testified to “with an acceptable level of scientific certainty” to be admissible at trial. Lastly,*2

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