State v. Jason C.

• Decision Date: 22 January 2016
• Citation: 51 Misc.3d 553,26 N.Y.S.3d 423
• Parties: In the Matter of the Application of the STATE of New York, Petitioner, v. JASON C., Respondent, for Civil Management Pursuant to Article 10 of the Mental Hygiene Law.
• Court: New York Supreme Court

51 Misc.3d 553

26 N.Y.S.3d 423

In the Matter of the Application of the STATE of New York, Petitioner,

v.JASON C., Respondent, for Civil Management Pursuant to Article 10 of the Mental Hygiene Law.

Supreme Court, Kings County, New York.

Jan. 22, 2016.

Kenneth Sprotbery, Esq., Office of the Attorney General, New York, for the petitioner.

Melissa Mazzitelli, Esq., Janet McFarland, Esq., Mental Hygiene Legal Service, Brooklyn, for the respondent.

DINEEN A. RIVIEZZO, J.

Issue Presented

In this proceeding under Article 10 of the Mental Hygiene Law, the respondent, Jason C., moved by motion, dated November 21, 2013, for an order precluding all testimony at trial concerning the diagnosis that forms the basis of the Petition for Civil Commitment filed by the State of New York ("Petitioner" or "the State") on June 7, 2013. Specifically, respondent alleges that the diagnosis, paraphilia, not otherwise specified (non-consent) ("paraphilia, NOS (nonconsent)"), is not a diagnosis generally accepted by the relevant scientific community and thus, the use of expert testimony for that purpose should be precluded under Frye v. United States, 293 F. 1013, 54 App.D.C. 46 (D.C.Cir.1923). Petitioner opposed the motion. Another Judge of this court granted a Frye hearing on the respondent's specific diagnosis described in that court's February 19, 2015 opinion as "Other Specified Paraphilic Disorder (non-consent)" or "OSPD (nonconsent)" in recognition of the change in nomenclature from the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition ("DSM–IV") to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition ("DSM–V") from "paraphilia, NOS" to "Other Specified Paraphilic Disorder."

This court held extensive hearings, at which six experts were called. The State called three experts: (1) Dr. Robin Wilson, a forensic psychologist with extensive clinical experience in the treatment of sex offenders, including work as the Clinical Director of the Florida Civil Commitment Center, as the first Sex Offender Treatment Specialist with the Federal Correctional Service of Toronto, Canada, and as the Research Director at the Clarke Institute of Psychiatry (a prominent psychiatric teaching hospital in Toronto, Canada); (2) Dr. Christopher Kunkle, Director and Chief Psychiatric Examiner of the Bureau of Institutional Sex Offender Treatment for the New York State Office of Mental Health ("OMH") who overseas the psychiatric examiners who conduct evaluations for the State of New York pursuant to MHL Article 10; and (3) Dr. David Thornton, Director of the Sand Ridge Secure Treatment Center, the sex offender treatment facility of the State of Wisconsin, and one of the developers of the STATIC–99, a prominent risk assessment instrument.

Respondent also called three experts: (1) Dr. Leonard Bard, a clinical and forensic psychologist based in Massachusetts, now in private practice who has conducted over 1200 forensic examinations of sexually dangerous persons under the Massachusetts General Law 123A and 128 (the equivalent NYS MHL Article 10); (2) Dr. Raymond Knight, the Mortimer Gryzmish Professor of Psychology at Brandeis University and the developer of leading typological models for rapists and child molesters; and (3) Dr. Cynthia Calkins, Associate Professor of Psychology at John Jay College of Criminal Justice whose professional research and peer reviewed publications focus on sexual violence policies such as the efficacy of civil confinement laws, community notifications and GPS monitoring and the clinical functioning of sex offenders subjected to those laws.

Argument of the Parties

Respondent argues that the State has failed to prove that the diagnosis of OSPD (non-consent) is a reliable diagnosis that has been accepted by the relevant scientific community. Specifically, respondent argues that there is no established criteria for the diagnosis, or consensus as to its definition, nor has the diagnosis been subject to vigorous scientific research published in peer reviewed publications which could be duplicated and tested—a necessary pre-requisite to any diagnosis gaining general scientific acceptance. Respondent also emphasizes that the diagnosis was rejected for inclusion in the latest version of the DSM–V after rigorous review which, respondent argues, is strong evidence of its rejection by the relevant scientific community. Finally, respondent notes that the diagnosis is used almost exclusively by state evaluators in sexually violent predator proceedings—a population which does not reflect the general psychiatric community.

The State argues that it has met its burden to prove that the general category of "Other Specified Paraphilic Disorder" is generally accepted in the relevant scientific community, as well as the additional qualifying diagnosis of "non-consent" a/k/a "paraphilic coercive disorder." The State provided to the court three New York State Supreme Court opinions issued in the context of Article 10 proceedings which denied an application for a Frye hearing for OSPD (non consent) on the grounds that the respondents in those cases failed to make a prima facie showing. Further, the State listed seventeen states in which this diagnosis is used in the context of those state's sexually violent predator ("SVP") laws.

Frye Hearing: Elements and Burden of Proof

In general, the inquiry under Frye is "whether the accepted techniques, when properly performed, generate results accepted as reliable within the scientific community generally" ( People v. Wesley, 83 N.Y.2d 417, 422, 611 N.Y.S.2d 97, 633 N.E.2d 451 [1994] ). The burden of proving general acceptance in the relevant scientific community rests upon the proponent of the disputed testimony (See Zito v. Zabarsky, 28 A.D.3d 42, 812 N.Y.S.2d 535 [2d Dept.2006] ; People v. Kanani, 272 A.D.2d 186, 709 N.Y.S.2d 505 [1st Dept.2000], lv. denied 95 N.Y.2d 935, 744 N.E.2d 148, 721 N.Y.S.2d 612 [2000] ). Admissibility under Frye requires a showing that:

1) the expert is competent in the field of expertise which he or she purports to address at trial. This element is not disputed in this case;

2) the testimony is based on scientific principles or procedures which have been sufficiently established to have gained general acceptance in the particular field involved. In this regard, the hearing court does not determine whether or not a novel scientific theory is reliable, but only whether it is generally accepted in the relevant scientific community. The emphasis is on "counting scientists' votes" ( Wesley, 83 N.Y.2d at 439 [611 N.Y.S.2d 97, 633 N.E.2d 451] [Kaye, Ch. J., concurring ] ).

3) the proffered expert testimony is "beyond the ken" of the jury (See Matott v. Ward, 48 N.Y.2d 455, 459, 399 N.E.2d 532, 423 N.Y.S.2d 645 [1979] ; People v. Cronin, 60 N.Y.2d 430, 433, 458 N.E.2d 351, 470 N.Y.S.2d 110 [1983] ). It is not disputed by the parties, and it is evident, that the subject of a DSM diagnosis is beyond the ken of the ordinary person; and,

4) the testimony is relevant to the issues and facts of the individual case, and more probative than prejudicial. Evidence is relevant if it has any tendency in reason to prove the existence of any material fact, i.e., if it makes determination of the action more probable or less probable than it would be without the evidence. However, even if relevant, the probative value must outweigh the prejudice to the other side. A trial court may exercise its discretion and preclude "technically relevant" evidence "if its probative value is substantially outweighed by the danger that it will unfairly prejudice the other side or mislead the jury" ( People v. Scarola, 71 N.Y.2d 769, 777, 525 N.E.2d 728, 530 N.Y.S.2d 83 [1988] ).

In engaging in a Frye analysis, the court may consider scholarly articles on the subject matter for the purpose of understanding "general acceptance." Both sides, indeed, submitted numerous writings and journal articles on the subject of paraphilic disorders. Because Frye is concerned with "head counting" of experts, the state of knowledge in the profession is at issue and scholarly articles and journals are, therefore, admissible as reflecting those matters which are generally accepted in the relevant scientific community (See, e.g., People v. Wernick, 215 A.D.2d 50, 52, 632 N.Y.S.2d 839 [2d Dept.1995], affd. 89 N.Y.2d 111, 651 N.Y.S.2d 392, 674 N.E.2d 322 [1996] ; Fraser v. 301–52 Townhouse Corp., 57 A.D.3d 416, 870 N.Y.S.2d 266 (1st Dept.2008) [plaintiffs placed in evidence nearly 40 articles, treatises and other published studies concerning the relationship between building dampness and mold and sickness in humans; defendants placed approximately 15 such publications in evidence] ).

While the court found that all of the experts were credible witnesses and acknowledges their extensive knowledge, experience and passion for their work, it did not, as is explained in more detail below, concur with all of their opinions. The court has made factual findings based upon only those portions of the testimony relevant to its legal conclusions. In addition, the court considered the post-hearing written submissions of the parties, and consulted numerous scholarly articles that were both received into evidence and mentioned or relied upon by the experts. For the reasons which follow, the court holds that the general diagnosis of "Other Specified Paraphilic Disorder" is a generally accepted diagnosis in the relevant scientific community. As to the specifier at issue here, "non-consent," the court holds that the State has not met its burden to prove under Frye that the respondent's specific diagnosis of OSPD (non-consent) is generally accepted in the relevant scientific community.

Respondent's Criminal History

Respondent's criminal history includes four convictions for sexual assault. On December 19, 1994, respondent forcibly raped his former girlfriend when the victim was 13–years–old and he was 19–years–old. Respondent punched her...