State v. Dennis K.

• Decision Date: 05 July 2016
• Citation: 2016 N.Y. Slip Op. 05330,27 N.Y.3d 718,59 N.E.3d 500,37 N.Y.S.3d 765
• Parties: In the Matter of STATE of New York, Respondent, v. DENNIS K., Appellant. In the Matter of State of New York, Respondent, v. Anthony N., Appellant. In the Matter of State of New York, Respondent, v. Richard TT., Appellant.
• Court: New York Court of Appeals Court of Appeals

27 N.Y.3d 718
59 N.E.3d 500
37 N.Y.S.3d 765
2016 N.Y. Slip Op. 05330

In the Matter of STATE of New York, Respondent,
v.
DENNIS K., Appellant.

In the Matter of State of New York, Respondent,
v.
Anthony N., Appellant.

In the Matter of State of New York, Respondent,
v.
Richard TT., Appellant.

Court of Appeals of New York.

July 5, 2016.

37 N.Y.S.3d 769

Michael D. Neville, Mental Hygiene Legal Service, Mineola (Timothy M. Riselvato and Dennis B. Feld of counsel), for appellant in the first above-entitled proceeding.

Eric T. Schneiderman, Attorney General, New York City (Karen W. Lin, Barbara D. Underwood and Steven C. Wu of counsel), for respondent in the first above-entitled proceeding.

Davison Law Office, PLLC, Canandaigua (Mark C. Davison of counsel), for appellant in the second above-entitled proceeding.

Eric T. Schneiderman, Attorney General, Albany (Jonathan D. Hitsous, Barbara D. Underwood, Andrew Oser and Andrew B. Ayers of counsel), for respondent in the second above-entitled proceeding.

Sheila E. Shea, Mental Hygiene Legal Service, Albany (Shannon Stockwell of counsel), for appellant in the third above-entitled proceeding.

Eric T. Schneiderman, Attorney General, Albany (Allyson B. Levine, Barbara D. Underwood and Andrew B. Ayers of counsel), for respondent in the third above-entitled proceeding.

OPINION OF THE COURT

PIGOTT, J.

27 N.Y.3d 725

59 N.E.3d 504

In Matter of State of New York v. Donald DD., 24 N.Y.3d 174, 996 N.Y.S.2d 610, 21 N.E.3d 239 (2014), we held that, in a trial conducted pursuant to Mental Hygiene Law article 10, “evidence that a respondent suffers from antisocial personality disorder [ASPD] cannot be used to support a finding that he [or she] has a mental abnormality as defined by Mental Hygiene Law § 10.03(i), when it is not accompanied by any other diagnosis of mental abnormality ” (id. at 177, 996 N.Y.S.2d 610, 21 N.E.3d 239 [emphasis supplied] ).

Like the respondent in Donald DD., respondents Dennis K., Anthony N. and Richard TT. have been diagnosed with ASPD.¹ Unlike the respondent in Donald DD., however, they have been

27 N.Y.3d 726

diagnosed with conditions, diseases and/or disorders in addition to ASPD. Notwithstanding this significant distinction, respondents argue that our holding in Donald DD. warrants the dismissal of the petitions brought against them pursuant to Mental Hygiene Law § 10.06(a). For the reasons that follow, we reject that argument and hold that in each of the Mental Hygiene Law article 10 proceedings, “the evidence, considered in the light most favorable to the State, was sufficient to support

59 N.E.3d 505

37 N.Y.S.3d 770

the ... verdict[s]” that respondents suffered from a “mental abnormality” as defined in the Mental Hygiene Law (Matter of State of New York v. John S., 23 N.Y.3d 326, 348, 991 N.Y.S.2d 532, 15 N.E.3d 287 [2014] [citations omitted] ). Accordingly, in Matter of State of New York v. Dennis K. and Matter of State of New York v. Anthony N., we affirm the Appellate Division orders. In Matter of State of New York v. Richard TT., we affirm the order of the Appellate Division and answer the certified question in the negative.

I.

Mental Hygiene Law article 10 is designed to reduce the risks posed by, and to address the treatment needs of, sex offenders who suffer from mental abnormalities that predispose them to commit repeated sex crimes (Mental Hygiene Law §§ 10.01[b] ; 10.03[i] ). The law defines “mental abnormality” 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” (Mental Hygiene Law § 10.03[i] ). Thus, not only must the State establish by clear and convincing evidence the existence of a predicate “condition, disease or disorder,” it must also link that “condition, disease or disorder” to a person's predisposition to commit conduct constituting a sex offense and to that person's “serious difficulty in controlling such conduct.”

Substantive due process requires that evidence of a respondent's

“serious difficulty in controlling behavior ... 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

27 N.Y.3d 727

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” (Kansas v. Crane, 534 U.S. 407, 413, 122 S.Ct. 867, 151 L.Ed.2d 856 [2002] ).

When considering Mental Hygiene Law article 10 petitions, courts must be sure that civil commitment is not utilized as punishment or deterrence, but, rather, to serve the aims of providing the necessary treatment to sex offenders while concomitantly protecting the public from potential sexual assaults (see generally Mental Hygiene Law § 10.01[a] ).

II.

As evidenced by these current appeals, a significant issue that repeatedly arises is what constitutes legal sufficiency of a mental abnormality for purposes of article 10. We addressed that issue in Matter of State of New York v. Shannon S., 20 N.Y.3d 99, 956 N.Y.S.2d 462, 980 N.E.2d 510 (2012), where the respondent was diagnosed with, among other things, ASPD and paraphilia not otherwise specified (NOS).² The particular

59 N.E.3d 506

37 N.Y.S.3d 771

paraphilia with which the respondent was diagnosed was “hebephilia,” which is defined as an attraction to pubescent girls, and is not contained in the American Psychological Association's Diagnostic and Statistical Manual of Mental Disorders (DSM) (id. at 104–105, 956 N.Y.S.2d 462, 980 N.E.2d 510 ).

In Shannon S., we rejected the respondent's primary contention that, to qualify as a mental abnormality under the Mental Hygiene Law, a diagnosis of a mental disease or disorder must be listed in the DSM, recognizing that section 10.03(i) “does not reference or require that a diagnosis be limited to mental disorders enumerated within the DSM” (id. at 105–106, 956 N.Y.S.2d 462, 980 N.E.2d 510 ). We also found that a diagnosis of paraphilia NOS is “a viable predicate mental disorder or defect that comports with minimal

27 N.Y.3d 728

due process” such that any issue pertaining to its reliability as a predicate condition is “a factor relevant to the weight to be attributed to the diagnosis, an issue properly reserved for resolution by the factfinder” (id. at 107, 956 N.Y.S.2d 462, 980 N.E.2d 510 [citations omitted] ). Based on the particular facts of Shannon S., we concluded that there was an adequate record to assess the paraphilia NOS diagnosis and we found no basis to disturb the affirmed findings of fact of Supreme Court (see id. at 107–108, 956 N.Y.S.2d 462, 980 N.E.2d 510 ).

Two years later, we observed in Donald DD. “that ASPD establishes only a general tendency toward criminality, and has no necessary relationship to a difficulty in controlling one's sexual behavior” (Donald DD., 24 N.Y.3d at 191, 996 N.Y.S.2d 610, 21 N.E.3d 239 ). Noting that the expert testimony and statistics indicated that well over half of the prison population (and in some instances up to 80% of incarcerated individuals) could be diagnosed with ASPD, we concluded that an ASPD diagnosis, by itself, “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” (id. at 189–190, 996 N.Y.S.2d 610, 21 N.E.3d 239 ). Absent evidence of an “independent mental abnormality diagnosis,” evidence of ASPD, coupled with testimony concerning the sex crimes that Donald DD. had committed, was insufficient to support Supreme Court's finding of mental abnormality (id. at 191, 996 N.Y.S.2d 610, 21 N.E.3d 239 ). We explained that our holding did not conflict with Shannon S. because the paraphilia NOS diagnosis in that case, “whatever its strength or weakness as an evidentiary matter, [wa]s, at the very least, potentially relevant to a finding of predisposition to conduct constituting a sex offense” and that the same could not be said of ASPD (id. [emphasis supplied] ).

Finally, in Matter of State of New York v. Kenneth T., the companion case to Donald DD., the State's psychologist testified that Kenneth T.'s disorders of ASPD and paraphilia NOS, together, predisposed him to the commission of conduct constituting a sex offense and resulted in his having serious difficulty controlling that conduct (see Donald DD., 24 N.Y.3d at 178–179, 996 N.Y.S.2d 610, 21 N.E.3d 239 ). We acknowledged that “[p]araphilia NOS is a controversial diagnosis” but declined to...