State v. Mercado

• Decision Date: 11 August 2015
• Citation: State v. Mercado, 2015 NY Slip Op 25367, 50 Misc.3d 512, 19 N.Y.S.3d 658 (N.Y. Sup. Ct. 2015)
• Parties: In the Matter of the Application of the STATE of New York, Petitioner, v. Harry MERCADO, Respondent.
• Court: New York Supreme Court

50 Misc.3d 512

19 N.Y.S.3d 658

2015 N.Y. Slip Op. 25367

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

v.Harry MERCADO, Respondent.

Supreme Court, Kings County, New York.

Aug. 11, 2015.

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

Alison Kuhlman, Esq, Bruce Harris, Esq., Mental Hygiene Legal Service, Brooklyn, for respondent.

DINEEN A. RIVIEZZO, J.

Issue Presented

In this proceeding under Article 10 of the Mental Hygiene Law,the respondent, Harry Mercado, moved by motion dated October 24, 2014, for an order precluding all testimony at trial concerning the diagnosis that forms the basis for the petition for civil commitment filed by the State on June 7, 2013. Specifically, respondent alleges that the diagnosis, ParaphiliaNOS (sexual arousal to teens) 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). The State opposed the motion. Another Judge of this Court granted a Fryehearing on the respondent's specific diagnosis described in that Court's February 19, 2015 opinion as Other Specified Paraphilic Disorder (sexually attracted to teenage females) in recognition of the change in nomenclature from the DSM–IV to the DSM–V from “ParaphiliaNOS” to “Other Specified Paraphilic Disorder.”

This Court held extensive hearings, at which six experts were called. The State called three experts—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; 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 all of the psychiatric examiners who conduct evaluations for the State of New York pursuant to MHLArticle 10; and Dr. David Thornton, Director of the Sand Ridge Secure Treatment Center, which is the sex offender treatment facility of the State of Wisconsin. Respondent's three experts were, Dr. Allen Francis, a psychiatrist who was head of the DSM–IV task force, who wrote the final version of the DSM–IV along with its guide book, has published 300–400 articles in peer-reviewed journals, has edited or written dozens of books and at one point was chairman of the psychiatry department at Duke University; Dr. Karen Franklin, a forensic psychologist with a PhD in Clinical Psychology in private practice who conducts peer review for 20 journals in her field of sexual paraphiliasand who performed an historical literature review for the Court of all published papers and journal articles referring to hebephilia including her analysis as to whether the article was in support of or against the reliability of that diagnosis; 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 Other Specified Paraphilic Disorder (sexually attracted to teenage females) is generally accepted as a valid psychological disorder in the field of psychiatry or psychology. Respondent urges the Court not to rule on the general acceptance of hebephilia because the Court lacks subject matter jurisdiction to rule on a diagnosis that the State, in essence, concedes the respondent does not have. Alternatively, should the Court rule on the hebephilia diagnosis, the respondent argues that the State has also failed to meet the Fryestandard, pointing specifically to the uncontroverted testimony that this diagnosis was rejected for inclusion in the most recent version of the DSM–V after rigorous review; and that the few studies conducted by a very limited number of researchers in the field have not been published or peer-reviewed—a necessary pre-requisite to any diagnosis gaining general scientific acceptance.

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. The State further argues that it has met its burden to prove that the additional qualifying diagnosis of “hebephila” is also scientifically accepted within the forensic community. The State urges the court to reach a decision with respect to hebephilia's acceptance under Frye,although this is not the respondent's specific diagnosis, because all six experts testified about hebephilia, and in doing so this court will “prevent needless duplication of testimony, unnecessary use of Court facilities and time and the expenditure of significant financial resources by all parties.” The State does not argue that it has met its burden under Fryewith respect to the respondent's specific qualifying diagnosis of “sexual attraction to teenage females.”

Frye Hearing: Elements and Burden of Proof

In general, the inquiry under Fryeis “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. denied95 N.Y.2d 935, 744 N.E.2d 148, 721 N.Y.S.2d 612 [2000]). Admissibility under Fryerequires 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 Fryeanalysis, 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 Fryeis 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, 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 received into evidence. For the reasons which follow, the Court grants the respondent's motion and finds that while the general diagnosis of “Other Specified Paraphilic Disorder” is a generally accepted diagnosis in the relevant scientific community, the State has not met its burden to prove that the respondent's specific diagnosis of Other Specified Paraphilic Disorder (sexually attracted to teenage females) is generally accepted in the relevant scientific community. As to the additional diagnosis of “hebephilia,” for which there was extensive testimony, because this Court finds that respondent's diagnosis is nothebephilia, this Court holds that: 1) under the Fryeanalysis any testimony about hebephilia at the...