State of NY v. Kenneth W.

On October 23, this Court conducted a hearing to determine whether there was probable cause to believe the Respondent was a sex offender requiring civil management under the Sex Offender Management and Treatment Act (Article 10 of the Mental Hygiene Law, “SOMTA” or “Article 10″) pursuant to MHL §10.06 (g). The State presented the written evaluation report of a psychiatric examiner which was received in evidence without objection with one redaction and that examiner was then subject to cross-examination by the Respondent and re-direct examination by the State. The parties stipulated that the Respondent is a “Detained Sex Offender” under Article 10 (MHL §10.03 (g)) For the reasons stated below, the Court holds that there is probable cause to believe the Respondent is a sex offender requiring civil management. STATEMENT OF FACTS The State presented an evaluation report by a psychologist employed by the New York State Office of Mental Health (“OMH”), Dr. Nancy Ives, prepared on February 12, 2020 in which she opined that Mr. W. was a sex offender who suffered from a Mental Abnormality under Article 10. Unless otherwise noted, the following are the facts and conclusions recited in Dr. Ives’ evaluation report. Dr. Ives interviewed Mr. W., who is hearing-impaired and is also sometimes described as being deaf, with the aid of a sign language interpreter for about 3 hours at a prison on February 10, 2020. Mr. W. communicates by sign language, reading lips and also speaks. He sometimes wears hearing aids but finds them uncomfortable and was not wearing them during his interview. Since he uses multiple communication methods, Dr. Ives said, it was sometimes unclear whether he understood questions or communicated answers clearly. She opined, however, that he understood the nature of the interview and the nature of the questions she asked him. Mr. W. was 36 years old on the date of the report. His first known sex offense occurred in August of 2002 when he was 19, attempted to force a 16 year-old girl to have sex with him and threatened to kill her if she revealed the attempt. The victim reported that Mr. W. punched her multiple times and tried to pull her pants down. The attempt was stopped when the victim’s mother appeared. While charges in this case were pending, he entered the victim’s home and choked her, obstructing her breathing and threatened to kill her. When another person intervened to stop the assault, Mr. W. was reported to have grabbed a knife and pointed it at the person. He committed this offense while he was subject to an order of protection concerning the victim. He pled guilty to Assault in the Third Degree and Criminal Contempt in the Second Degree (both misdemeanors) with respect to these incidents. He was sentenced to 60 days jail and three years of probation. During his interview, Mr. W. denied committing a sexual offense with respect to this incident, which he described as a dispute with his mother. Mr. W.’s mother described a conflict with Mr. W. when she spoke to Dr. Ives and said Mr. W. had punched her in the face and threatened her with a knife, saying that she was able to protect herself by putting her arm up to stop the knife. In the fall of 2010, at the age of 27, Mr. W. sexually abused his then 9-year-old daughter on at least five occasions by digitally penetrating her and performing oral sex on her. He pled guilty to Attempted Criminal Sexual Act in the First Degree and was sentenced to 4 years incarceration and 10 years post-release supervision. The victim reported that Mr. W. had told her he was teaching her how to have sex and threatened to kill her if she revealed the abuse. In 2013, it was reported that Mr. W. denied being at fault for this abuse and attributed his offending to his daughter walking around in her underwear. In a treatment note in 2019, Mr. W. attributed this crime to drinking and accidentally touching his daughter while making sexual advances to her mother who was in the same bed. He described himself as being “out of control” at the time.¹ In 2019, he also said that he mistook his daughter for his wife, believed it was ok for parents to teach children about sex and was sorry for what he had done but was not a bad father. He reported that he knew the victim was his daughter but wanted to have sex and was “out of my mind.”² During his interview with Dr. Ives, Mr. W. admitted to having sex with his daughter, said it was a mistake and said he had looked at his child as an adult. He said he had not fantasized about her prior to the abuse, speculated that he may have been abused as a child, told the victim that she should report the abuse, said he was high on marijuana on one occasion and said he was attracted by his daughter’s tight clothing. In November of 2015, Mr. W. committed his third known sex offense 8 months after being released from his previous term of incarceration. He forcibly penetrated the mouth, vagina and anus of an adult victim while threatening to punch her. He was on sex offender parole at the time and the victim’s two year old child was present when the assault occurred. He pled guilty to Sexual Abuse in the First Degree and was sentenced to 5 years incarceration and 10 years of post-release supervision. Mr. W. described the victim as an ex-girlfriend and in 2016, denied forcible sex and said the encounter had been consensual. During his interview with Dr. Ives, he said the victim was also the mother of his brother’s child, that his brother and the victim had “set him up” and that he had a violent argument with the victim which arose when he took the victim’s phone and she assaulted him. He reported drinking at the time, and also blamed his mother for the incident. He said he pled guilty on his attorney’s advice to avoid the potential of a much longer prison sentence. Mr. W. previously completed probation supervision terms but was also arrested for committing new crimes while on probation and committed his third sexual offense while on parole for the earlier sex offenses against his daughter. He was reported by parole authorities to have adjusted poorly to supervision and consumed alcohol while on parole in 2015. He also violated a parole condition prohibiting contact with children by having contact with his 2015 victim’s 2 year-old daughter. There is no evidence Mr. W. manifests hypersexuality or sexual preoccupation. He has an extensive history of arrests for non-sexual offenses involving violence, but all of these charges have been dismissed. Mr. W. received 13 disciplinary infractions during his two prison terms and incurred Tier 3 tickets in 2016, 2017 and 2018.³ The 2018 infraction arose from allegations Mr. W. was threatening to harm inmates if they did not provide him with food, clean his “cube” [cubicle] or wash his laundry. Upon commencing sex offender treatment in prison in 2013, Mr. W. initially refused to take responsibility for the abuse of his daughter but then later was described as having a “fair” ability to understand his offense cycle and accept responsibility. More recently, in 2018 and 2019, he was slightly more forthcoming about the abuse of his daughter but denied he had committed a sexual offense with respect to the 2015 conviction. He was described by treatment providers as having limited insight into his crimes and switching between accepting responsibility and deflecting blame or minimizing his crimes. Mr. W. was able to outline a number of his cognitive distortions in his most recent prison treatment program but unable or unwilling to describe risk factors or triggers which might precipitate a re-offense. During the interview with Dr. Ives, Mr. W. said he did not find the sex offender treatment he had received to have been helpful. Mr. W. reported that he lost his hearing as an infant, after his father placed a “boom box” radio in his bed to stop him from crying. He spent some time in foster care or in group homes as a child and reported being homeless since age 19. He said he had been whipped by his father as a child and said he may have been sexually abused as a child but was not sure. He has fathered at least six children but has denied having contact or even awareness of some of them. He dropped out of high school, was subject to disciplinary problems in school while he attended and reported that he stopped attending school to drink and smoke marijuana. He has never held a job. He continued the relationship with the mother of his child victim as late as 2015 but is not now in a romantic relationship. Mr. W. was admitted to a psychiatric hospital three times between ages 14 and 15 and diagnosed with Antisocial Personality Disorder (“ASPD”), Schizoaffective Disorder and Cannabis Dependence. He attempted suicide at age 15. He has not received psychiatric treatment during his incarcerations. Mr. W. reported extensive marijuana use beginning at age 15 and extensive alcohol abuse beginning at ages 15 or 16. In 2019, it was reported that he had been under the influence of alcohol and drugs when he abused his daughter. He completed a substance abuse treatment program while incarcerated in 2014 and 2019. Dr. Ives Evaluation Conclusions Dr. Ives scored Mr. W. with a “7″ on the Static 99R actuarial risk assessment instrument, indicating he is at “well above average” risk of recidivism when compared to other sex offenders. Using the “routine sample” of other offenders, this would place his five year recidivism risk at between 21 and 34 percent. Dr. Ives opined that Mr. W. had the following “Dynamic/Psychologically Meaningful Risk Factors”. He has offense supportive attitudes. In February of 2019, it was reported that he had “some agreement” with the view that parents and children could marry each other, as could siblings. He has acknowledged that his abuse of his daughter was wrong, but has also minimized his offense and thought of his daughter as an adult although he knows she is a child. He has no emotionally intimate relationships with adults, has never been married and has exhibited violence and cheating in his romantic relationships. He has exhibited impulsive anger and may have poor cognitive problem solving skills. He has violated parole and apparently engaged in problematic behavior prior to age 15 including carrying a weapon, truancy and drug and alcohol abuse. He has exhibited hostility to women in his life. Mr. W.’s completion of sex offender treatment programs in prison twice reduces his risk to re-offend although he sexually offended after completion of the first program, has denied culpability for the most recent offense and does not have a viable relapse prevention plan. He would be supervised on parole for 10 years following his release from prison. Dr. Ives first diagnosed Mr. W. with ASPD. This is “a pervasive pattern of disregard for and violation of the rights of others, occurring since age 15 years” as indicated by at least three specific behavior patterns as outlined in Dr. Ives’ report. She diagnosed him with “Alcohol Use Disorder, Moderate, in sustained remission in a controlled environment”. She also diagnosed him with “Cannabis Use Disorder, Severe, in sustained remission in a controlled setting.” Regarding the finding of a “Mental Abnormality”, Dr. Ives said that Mr. W.’s ASPD, “cognitive distortions, and offense supportive attitude” predispose Mr. W. to commit sex offenses.⁴ She opined that Mr. W. “[h]as a significant history of violating the law, engaging in reactive violence, using threats and manipulation, entitlement, and has evidenced a general disregard for the welfare and rights of others in pursuit of meeting his own needs to seek sexual gratification.”⁵ She also opined that he has serious difficulty in controlling sexually offending behavior. She noted his offenses while on parole, within 8 months of being released from prison and after sex offender treatment. She noted that he offended against his daughter even though he had a willing adult sexual partner at the time. He appears undeterred by the threat of detection and has acted impulsively. The Relationship of Alcohol and Marijuana Abuse to the Respondent’s Crimes Mr. W. has said that he sexually abused his daughter in part because he was drinking or drunk or on another occasion while high on marijuana.⁶ He also reported consuming alcohol in connection with his 2015 sexual assault.⁷ Dr. Ives opined that Mr. W.’s alcohol and cannabis abuse contributed to her conclusion that he suffers from a Mental Abnormality. She said: “The above diagnoses of Antisocial Personality Disorder, Alcohol and Cannabis use Disorders, cognitive distortions, impulsivity, and disregard for the rights of others do result in Mr. W. having serious difficulty in controlling his presdisposition to sexually offend”.⁸ She also opined that: Further, having identified his use of marijuana and alcohol during at least two of his offenses against his daughter, and having reported that he had been consuming alcohol on the day of his instant offense, it [SIC] evident that his use and consumption of substances contributed to his serious difficulty, and likely exacerbated it by further lowering his inability and/or willingness to inhibit his behavior”.⁹ The Defense Attempt to Impeach Dr. Ives’ ASPD Diagnosis During cross-examination the defense attempted to impeach Dr. Ives’ diagnosis of ASPD, by seeking to demonstrate that her factual findings did not support one required prong of the diagnosis. 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”.¹⁰ “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”.¹¹ (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 serious violation of rules.¹² “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.”¹³ In her report and testimony at the hearing, Dr. Ives outlined the basis for her conclusion that there was “evidence of conduct disorder before age 15″ as follows: “Mr W. has evidenced problematic behavior beginning prior to age 15, to include multiple suspensions from school for carrying a weapon, fighting and truancy, and drug and alcohol use”.¹⁴ She testified that these conclusions were quotations of a few sentences in a pre-sentence investigation and report prepared in 2011 (the “PSR”) for which no sources were identified. During her testimony, she could not provide any additional information about this report or the sources from which this information had been derived.¹⁵ She acknowledged that the only information about the Respondent’s alleged truancy came from this PSR and that this information did not indicate whether the truancy had occurred prior to age 13. Dr. Ives acknowledged during her testimony that carrying a knife is only evidence of conduct disorder if the weapon is used against another and there was no evidence that Mr. W. had used a knife against another person prior to age 15. She also acknowledged that fighting is evidence of conduct disorder only if a person initiates the fights and that she did not know if this was true for Mr. W. She agreed that the OMH “case review team” (which reviews respondents prior to the filing of a petition) had said that it was not clear whether any of the behaviors outlined in the PSR occurred prior to age 15. Dr. Ives did not ask Mr. W.’s mother about these allegations. Mr. W. did not have any police contact prior to age 18. Dr. Ives also said her conclusions were informed by her interviews with the Respondent and his mother. Mr. W. reported that he had attempted suicide at around the age of 15, but such a suicide attempt would not be evidence of conduct disorder. In addition to the PSR, he also told Dr. Ives that he began drinking alcohol around age 15 or 16 and smoked marijuana every day (although that marijuana report did not include an age).¹⁶ The Respondent’s mother told Dr. Ives about an incident in which he jumped over a bannister as they walked up stairs and was then hospitalized but did not provide a precise time frame for when that occurred. Mr. W.’s mother said he had behavioral problems as a child arising from his frustration at not being able to hear and spent time in foster care and group homes. She also reported that Mr. W. had assaulted her and his sister but did not provide a time frame for these assaults.¹⁷ Dr. Ives testified that Mr. W.’s pattern of behavior as a teenager led her to infer that these behaviors likely began prior to age 15.¹⁸ CONCLUSIONS OF LAW Since the parties stipulated that Mr. W. was a “Detained Sex Offender” under Article 10, the question at the hearing was whether there was probable cause to believe Mr. W. suffered from a “Mental Abnormality” under the statute. 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). In this Court’s view, the hearing evidence clearly provided probable cause to believe that Mr. W. was predisposed to commit and had serious difficulty controlling his behavior with respect to committing sex offenses. The more difficult issue is whether the State demonstrated that Mr. W. had a qualifying “condition, disease or disorder” under the statute. With respect to the predisposition and serious difficulty prongs of the Mental Abnormality definition, Mr. W. has a wide victim pool, which has included his own 9 year-old daughter and a former girlfriend. He has been undeterred by parole supervision and prison terms. He apparently has no regard for the rights of other people. He has not apparently made significant progress in understanding his offense cycle and the triggers which might promote a re-offense. At age 36, his age is not a protective factor. He has no relationships which might serve to mitigate the risk of re-offense. He has not taken responsibility for his children or ever held a job. He offended again after completing sex offender treatment. He has given a wide range of inconsistent explanations for the sexual abuse of his daughter and apparently has attitudes supportive of re-offending, like the view that his 9 year-old daughter was provocative and adult and thus at least partly to blame for his crimes against her. Mr. W. himself has described his behaviors at some points as being “out of control” or being “out of my mind” acknowledging his serious difficulty in controlling his behavior. Mr. W.’s alcohol and marijuana abuse apparently have served to disinhibit his behavior and there is no reason to believe he would not continue to abuse these substances were he released into the community. As Dr. Ives opined, Mr. W.’s serious difficulty in controlling his sexually offending behavior is manifested by his multiple sexual offenses, the commission of offenses even after being imprisoned for committing earlier sex crimes, offending while on parole, and offending 8 months after release. He has acted impulsively. In this Court’s view, although the evidence of conduct disorder prior to age 15 in this case was thin, it was sufficient to demonstrate probable cause to believe Mr. W. was properly diagnosed with ASPD. Compare, State v. Charada T., 59 Misc 3d 1205 (A) (Sup Ct, NY County 2018) (decision by this Court dismissing Article 10 petition at annual review where the Respondent’s only diagnosis was ASPD and there was insufficient evidence of conduct disorder prior to age 15). What is required for the ASPD diagnosis is not a diagnosis of conduct disorder prior to age 15. It is rather evidence of conduct disorder prior to that age. That evidence came directly from the 2011 PSR. But the interviews with Mr. W. and his mother also supported the evidence of conduct disorder conclusion. It is true that precise time frames were missing with respect to those interviews. It is also true that there was no evidence Mr. W.’s truancy arose prior to age 13, which is required in order for truancy to evidence conduct disorder. Dr. Ives, in this Court’s view, took the evidence of Mr. W.’s behavioral problems as a teenager, relied in part on the evidence in the PSR and supplemented that information with her interviews to draw the reasonable inference that there was evidence of conduct disorder prior to age 15. That conclusion was also supported by the admission of Mr. W. to psychiatric facilities between the ages of 14 and 15, due in part to an ASPD diagnosis. The Sufficiency of Mr. W.’s diagnoses The most difficult issue in this case, in this Court’s view, is whether Mr. W.’s combined diagnoses of ASPD, Alcohol Use Disorder, Moderate, in sustained remission in a controlled environment and Cannabis Use Disorder, Severe, in sustained remission in a controlled setting were legally sufficient Mental Abnormality predicates under the Court of Appeals decision in State v. Donald DD. & Kenneth T., 24 NY3d 174 (2014) (in the Donald DD. portion of the decision) (hereinafter “Donald DD.”). Donald DD. and Its Progeny¹⁹ Donald DD. held that ASPD alone could not serve as a sufficient Article 10 predicate in the absence of other conditions. This Court has long believed, respectfully, that Donald DD. was wrongly decided both because it is inconsistent with the Article 10 statute and because the rule that ASPD alone is an insufficient Article 10 predicate is not required to satisfy constitutional due-process. Almost from the moment Donald DD. was decided, however, courts began to significantly limit its scope because some sex offenders who are driven primarily by antisociality are also among the most dangerous. They are also, in this Court’s view, among the offenders the Legislature intended to be covered under Article 10.²⁰ That is true for the Respondent here. Donald DD. In Donald DD., 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.”²¹ 24 NY3d at 177.²² The Court noted that the United States Supreme Court in the second of its two seminal 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.” 24 NY3d at 189 (emphasis added in Donald DD.). The Donald DD. majority said the evidence during the trial indicated that up to 80 percent 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. Simply because most prison inmates can be diagnosed with ASPD, however, does not mean most prison inmates could be subject to Article 10 because of such a diagnosis. As this Court outlined in more detail in its decision in State v. Michael R., 42 Misc 3d 1222 (A) (Sup Ct, NY County 2014), in a decision which preceded Donald DD., the vast majority of convicted offenders who have been diagnosed with ASPD are not even statutorily eligible for civil management. Of those who are eligible a much smaller fraction prior to Donald DD. had become subject to Article 10 and a still smaller percentage had been found to have a Mental Abnormality. Allowing ASPD alone to serve as a Mental Abnormality predicate would thus not expose 80 percent of the prison population to SOMTA. This Court estimated in Michael R. that such a permissible sole diagnosis had served to subject less than 1/10 of 1 percent of the prison population to Article 10. 2014 NY SlipOp at 17.²³ Judge Graffeo’s three judge dissenting opinion in Donald DD. asserted that “[t]he fundamental flaw [in the majority's reasoning] is that it equates a ‘congenital or acquired condition, disease or disorder’ with a ‘mental abnormality,’ thereby requiring that the predicate disorder itself inherently include the additional predisposition and impulse control elements of [Article 10]. (citation to majority opinion omitted). This interpretation directly conflicts with the language of the statute…” Donald DD., 24 NY3d at 194 [Graffeo, J. dissenting]. It is also clear, in this Court’s view, that as a factual matter ASPD alone can predispose a small minority of offenders with that diagnosis to commit sex offenses and result in serious difficulty in controlling such behavior. Few Article 10 experts, in this Court’s experience, have expressed contrary views. The Donald DD. majority’s ruling also strongly implied that a valid Mental Abnormality predicate had to be 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 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). Psychopathy as a Insufficient Independent Predicate Under Donald DD. Donald DD. also addressed the issue of psychopathy in a footnote which the majority inserted following their recitation that both of the State’s expert witnesses had diagnosed the Respondent with ASPD: In addition, both 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. Thus, the Court found both that the psychopathy diagnosis in Donald DD., when combined with ASPD, did not result in a valid Mental Abnormality finding and that psychopathy was just “an extreme form of ASPD”. That latter conclusion is consistent with the way psychopathy is defined in the DSM-5.²⁴ In the period following Donald DD., as this Court outlined in its decision in State v. Jerome A., 48 Misc 3d 1229 (A) (2015), 2015 NY SlipOp 51303 (U) at 9 (Sup Ct, NY County) “[t]he clear weight of [trial court] authority…held that where a Respondent is diagnosed with ASPD and psychopathy but no sexual disorder, Donald DD. requires the petition’s dismissal”. Limiting the Scope of Donald DD: Disavowing the “Sexual Disorder” Requirement The initial series of judicial limitations on Donald DD. culminated in the Court of Appeals decision in State v. Dennis K., Anthony N. & Richard TT., 27 NY3d 718 (2016) where the Court said its holding in Donald DD. had not required 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”. 27 NY3d at 743. ASPD Legally Sufficient if the Respondent Has Another Condition Post-Donald DD. cases also held that where a respondent had ASPD along with some other condition, that was sufficient to satisfy Donald DD. The analytic problem here is that every respondent with ASPD can be assigned some additional descriptor relevant to sexual offending. Offenders can have other diagnoses, but can also be described as suffering from psychopathy, being “sexually preoccupied”, having a deviant sexual arousal to non-consent, sadism or other abnormal preferences or suffering from alcohol or substance use disorders which promote sexual offending. Distinguishing which descriptors are sufficient from those which are insufficient under Donald DD. has never been completely clear. Appellate division cases following Donald DD. have often upheld Mental Abnormality judgments where a respondent had ASPD plus some “condition” which did not rise to the level of a diagnosis. Donald DD. found the respondent’s diagnosis of ASPD invalid even though he had also been assigned the condition of psychopathy. In State v. Jerome A., this Court, in an extended opinion, dismissed an Article 10 petition after a probable cause hearing.. This Court’s determination was based both on the fact that the diagnosis by the State’s sole expert witness, Dr. Charder, that Mr. A. had ASPD and psychopathy was the same diagnosis rejected as not meeting Article 10 requisites by the Court of Appeals in Donald DD. and because this Court did not find Dr. Charder’s testimony otherwise credible or sufficient to establish the requisites for a Mental Abnormality.25 In State v. Jerome A., 137 AD3d 557 (1st Dept 2016), however, the First Department reversed this Court’s dismissal. The Court held that “issues concerning the viability and reliability of the respondent’s diagnosis are properly reserved for resolution by the jury unless the respondent’s evidence is deficient” and “the expert’s testimony at the [probable cause] hearing was not so deficient as to warrant dismissal of the petition at this early juncture” (citations omitted). The Court also held that because the State proffered the diagnosis of ASPD plus psychopathy, rather than ASPD alone, the evidence was legally sufficient under Donald DD. 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).²⁶ 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), lv. denied 30 NY3d 903, 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, 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”…” 151 AD3d 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, 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 predicates. The Court found that “hypersexuality/sexual preoccupation” was not an “independent mental abnormality diagnosis” or “an independent mental abnormality”. The Court held that, at most, “hypersexuality/sexual preoccupation” was a “recognized mental condition” but did not satisfy Article 10′s predisposition and serious difficulty elements.²⁷ The “Strong” or “Particular Tendency” Sexual Component Rule In State v. Dennis K., the Court of Appeals held that the combined diagnoses of ASPD and Borderline Personality Disorder (“BPD”) with respect to respondent Anthony N. were sufficient Mental Abnormality predicates because the BPD diagnosis had a “strong sexual component” and resulted in a predisposition to commit sex crimes. 27 NY3d at 743-744. see also State v. Anthony B., 180 AD3d 688, 690-691 (2nd Dept 2020) (ASPD plus Narcissistic Personality Disorder (“NPD”) sufficient to constitute Mental Abnormality where NPD had a “strong sexual component” and was “linked” to the predisposition to commit sex offenses.) In State v. Timothy R., 168 AD3d 146, 151 (2nd Dept 2018) the Second Department held that in order for an Article 10 diagnosis for an offender with ASPD to be sufficient, the State must prove “another diagnosis that suggests a particular tendency to commit a sex offense as defined by the statute”. Citing Donald DD. (emphasis added; additional citation omitted). Unlike the “ASPD plus something else” rulings, these formulations attempted to articulate a principle which defined the conditions which might satisfy the diagnostic predicate requirement. The “strong sexual component” rule presumes that what must be sexual in order to constitute a Mental Abnormality is not only a respondent’s predisposition or serious difficulty, but his underlying diagnosis. It is not clear, however, how a non-sexual disorder diagnosis’ sexual component “strength” should be measured, apart from an offender’s behaviors. Such gradations are not part of any psychiatric lexicon. The related formulation, that in order to be legally sufficient, a non-paraphilic diagnosis must “suggest a particular tendency to commit a sex offense” is also, in this Court’s view, subject to the same practical behavioral evidence requirement. The first question regarding the “particular tendency” test is what the phrase means. It apparently means that the diagnosis must have some measure of a unique (hence “particular”) tendency to cause sexual offending when compared to other diagnoses. This, at least, answers the question of what a diagnosis’ sexual strength must be compared to. The root problem with these formulations is the same one Judge Graffeo identified in her Donald DD. dissenting opinion: the flawed enterprise of taking the statute’s “predisposition” and “serious difficulty” prongs and attempting to import them, contrary to the statute’s language, into the definition of a “condition, disease or disorder”. Thus, in each case, the “strength” or “particularity” of a diagnosis’ sexual component is determined not primarily by the definition of the disorder. BPD, the diagnosis which was found sufficiently strong in Dennis K., and NPD, the diagnosis found sufficiently strong in Anthony B., were found to have that strength not primarily because of the diagnoses themselves. A person with BPD or NPD, like a person with ASPD, may have that disorder manifest by sexual offending or may have never committed a sex crime. Indeed, while the DSM-5 outlines how ASPD may be manifested by dysfunctional sexual conduct, such sexual problems are not even mentioned by the DSM as manifestations of NPD.presdisposition to sexually These conditions became “strong” sexual disorder diagnoses only because of the respondent’s behaviors, the degree to which the respondent was predisposed and had serious difficulty controlling sexual offending. Once imported into a non-sexual offense diagnosis, an offender’s behaviors, if egregious enough, then justify whatever diagnostic predicate the State presents (other than ASPD). These formulations have served to effectively neutralize Donald DD. without formally overruling it. Every offender can be described as having some diagnosis or condition in addition to ASPD. As long as that something exists in a sexual offender who poses a significant enough threat to the community, it can be validly described as having a “strong” or “particular” sexual component. The final technical problem is the literal requirement that there be “another diagnosis that suggests a particular tendency to commit a sex offense as defined by the statute”. (State v. Timothy R., emphasis added). This rule appears to require that the “particular tendency” must not emanate from ASPD. It must arise elsewhere. The problem is that sexual offending behaviors in reality are often not confined inside discrete diagnostic categories. Here, Mr. W. does have two valid diagnoses other than ASPD. These diagnoses are “Alcohol Use Disorder, Moderate, in sustained remission in a controlled environment” and “Cannabis Use Disorder, Severe, in sustained remission in a controlled setting”. The question is whether these diagnostic predicates are sufficient. In this case, in this Court’s view, they are. The question of whether a diagnosis of ASPD along with a substance or alcohol abuse disorder may constitute a valid “condition, disease or disorder” at either the trial or probable cause stage of an Article 10 case has not, as far as this Court is aware, been previously addressed in an appellate ruling. In this Court’s view these diagnoses are legally sufficient in this case because of Dr. Ives’ credible conclusion that these two diagnoses were integral to her Mental Abnormality determination. As noted supra, she opined in her report that “having identified his use of marijuana and alcohol during at least two of his offenses against his daughter, and having reported that he had been consuming alcohol on the day of his instant offense, it [SIC] evident that his use and consumption of substances contributed to his serious difficulty, and likely exacerbated it by further lowering his inability and/or willingness to inhibit his behavior.” Thus, in this case, in this Court’s view, the State met both the “ASPD plus something else” test and the “strong” or “particular tendency” test with respect to these alcohol and substance abuse diagnoses. This is in contrast to a case where, for example, a Respondent had ASPD plus a substance or alcohol abuse disorder but such disorders did not have a significant connection to the Respondent’s sexual offending. In such a case, in this Court’s view, there would be a good argument that a petition would have to be dismissed, even at the probable cause stage, because the only diagnosis relevant to the Respondent’s sexual offending was ASPD. Dismissal Not Warranted Because Substance & Alcohol Abuse Linked Only to “Serious Difficulty” in Controlling Sexually Offending Behavior The Respondent also raises a second related argument which he asserts warrants dismissal. That is the contention that even if alcohol or substance abuse disorders along with ASPD might be sufficient in some cases, those diagnoses were insufficient here because Dr. Ives primarily linked these disorders only to the Respondent’s “serious difficulty” in controlling sexually offending behavior, not his “predisposition” to commit a sexual offense. It is true that in her report Dr. Ives’ appeared to opine that these disorders were relevant because they reduced the Respondent’s volitional control over his sexual offending although she also, as outlined supra, said that Mr. W.’s combined diagnoses “result in Mr. W. having serious difficulty in controlling his presdisposition to sexually offend.”²⁹ The Respondent’s legal argument is supported by language from appellate rulings addressing the insufficiency of ASPD diagnoses. Thus, in State v. Dennis K., the Court said that the Donald DD. Court held that ASPD was little more than a tendency to commit crimes and that “such a general tendency does not amount to a predisposition to the commission of conduct constituting a sex offense” 27 NY3d at 743-744 (internal quotation omitted, emphasis added). Thus, the Respondent argues, an additional diagnosis could only make ASPD legally sufficient if that additional diagnosis impacted the Respondent’s presdisposition to commit sexual offenses, not only his “serious difficulty” in controlling sexually offending behavior.³⁰ On the other hand, however, the Court of Appeals has also described the ASPD-only limitation as based on the legal insufficiency of ASPD to demonstrate a respondent’s Mental Abnormality generally, rather than only the statute’s predisposition element. See Donald DD., 24 NY3d at 190-191 (describing the ASPD-only limitation as relevant to both the predisposition and serious difficulty prongs of the statute and “insufficient to show mental abnormality’). In this Court’s view, New York appellate courts have not opined that the Mental Abnormality definition under the Donald DD. rule must be parsed as the Respondent argues. That is, courts have not held that only where a State expert opines that a non-ASPD diagnosis directly causes a respondent’s predisposition to commit sex offenses may that additional condition suffice to render it, along with ASPD, a legally sufficient Article 10 predicate. Rather, in this Court’s view, such a condition may also, along with ASPD, be legally sufficient where it results in serious difficulty controlling behavior, as Dr. Ives credibly testified here. The statute does not impose the limitation argued by the Respondent. That limitation, in this Court’s view, is also not suggested by Donald DD.’s underlying rationale. Donald DD rejected Article 10 coverage for offenders who had only been demonstrated to suffer from a condition which caused them to engage in general criminality. That is not the case here. Rather, Dr. Ives opined that substance and alcohol abuse in this case were integral to the “detailed psychological portrait” which resulted in Mr. W.’s commission of multiple sexual offenses, distinguishing him from the ordinary recidivist.³¹ The Respondent’s substance and alcohol abuse disorders have a “strong sexual component” evidenced by their direct connection to sexual offending and have a “particular tendency” to promote the Respondent’s sex crimes, as those criteria have been outlined by New York’s appellate courts. Mr. W.’s substance and alcohol abuse do not “predispose” him to commit a sex offense. But those disorders do significantly contribute to his serious difficulty in controlling sexually offending behavior. For all of those reasons, the Court finds there is probable cause to believe the Respondent is a sex offender requiring civil management. Dated: December 4, 2020