State v. Nicholas T.
| Decision Date | 09 March 2017 |
| Citation | 53 N.Y.S.3d 481,55 Misc.3d 884 |
| Parties | In the Matter of the Application of The STATE of New York, Petitioner, v. NICHOLAS T., Respondent. |
| Court | New York Supreme Court |
55 Misc.3d 884
53 N.Y.S.3d 481
In the Matter of the Application of The STATE of New York, Petitioner,
v.
NICHOLAS T., Respondent.
Supreme Court, New York County, New York.
March 9, 2017.
New York State Attorney General Eric Schneiderman (Jeffrey Jackson, of counsel), for Petitioner.
Mental Hygiene Legal Services, First Judicial Department (Kalina R. Lovell, of counsel), for Respondent.
DANIEL P. CONVISER, J.
Nicholas T. is the subject of a petition for sex offender civil management pursuant to Article 10 of the Mental Hygiene Law ("Article 10"). The Respondent moves here to preclude or in the alternative conduct a Frye hearing (see Frye v. United States, 293 F. 1013 [D.C.Cir.1923] ) with respect to three diagnoses proffered by the State's two experts in this case: Other Specified Paraphilic Disorder ("OSPD"), Non–Consent ("Non–Consent"); Unspecified Paraphilic Disorder ("USPD") and the diagnosis or specifier psychopathy or psychopathic traits. That motion is opposed by the State.
For the reasons stated infra the Respondent's motion to preclude the use of the "Non–Consent" diagnosis is granted; the motion to preclude or conduct a Frye hearing on the diagnosis or specifier of psychopathy or psychopathic traits is denied and the motion to preclude or conduct a Frye hearing on the USPD diagnosis is granted to the extent of ordering a Frye hearing.
Nicholas T. was convicted by guilty plea of Burglary in the First Degree, Attempted Rape in the First Degree and other charges in 1992 and received an indeterminate prison term for those convictions of 12–24 years in prison. Mr. T. was previously convicted of Attempted Rape in the First Degree at the age of 16 and received an indeterminate 3–9 year sentence. He also has a juvenile sex offense history and
sexual misconduct disciplinary infractions while incarcerated.
Preclusion of the "Other Specified Paraphilic Disorder (OSPD) Non–Consent" Diagnosis
State's expert Dr. Frances Charder has diagnosed Mr. T. with "Other Specified Paraphilic Disorder ("OSPD") Paraphilic Coercive Disorder". In State v. Kareem M., 51 Misc.3d 1205(A), 2016 WL 1235233 (New York County Supreme Court 2016) this Court concluded after an extended Frye hearing that the diagnosis "Other Specified Paraphilic Disorder ("OSPD"), arousal to non-consenting persons" had not gained general acceptance in the relevant psychiatric community. The Court noted that this diagnosis had also been referred to by a number of equivalent terms including OSPD Non–Consent, its predecessor term Paraphilia Not Otherwise Specified ("Paraphilia NOS") Non–Consent, Biastophilia, Paraphilic Coercive Disorder, Paraphilic Rapism or simply Non–Consent. In Kareem M. this Court also outlined how a second trial court, after conducting a Frye hearing which considered much of the same evidence, had reached the same conclusion. See State v. Jason C., 51 Misc.3d 553, 26 N.Y.S.3d 423 (Kings County Supreme Court 2016 [Riviezzo, J.] ).1
This Court adheres to its previous decision in State v. Kareem M. The State's expert will be precluded from relying upon or recounting to the jury a Non–Consent diagnosis (or any of its equivalents). As the State points out in its motion, however, the State's experts will be permitted to discuss Mr. T.'s allegedly coercive sexual behaviors, indicate how those behaviors have informed their opinions and indicate how those behaviors might support other diagnoses.
Preclusion or the Conduct of a Frye hearing regarding the diagnosis of Psychopathy
The Respondent's motion to preclude or conduct a Frye hearing regarding the diagnosis or specifier of psychopathy or psychopathic traits is denied. State's expert Dr. Stuart Kirschner has diagnosed Mr. T. with ASPD with psychopathy. Dr. Charder has opined that Mr. T. has ASPD with psychopathic traits. She also asserts Mr. T. has the dynamic risk factor: "Psychopathy/Psychopathy Combined with Sexual Deviance".2 Three trial courts have conducted Frye hearings or otherwise ruled on whether the PCL–R, (the "Psychopathy Checklist Revised"), an instrument generally used to diagnose psychopathy, has achieved general acceptance. In State v. Marcello Aiello, Index No. 16768–14 (Suffolk County Supreme Court 2016 [Hinrichs, J.] ) and State v. Roderick Lancaster, Index # 5545–13 (Dutchess County Supreme Court 2016 [Forman, J.] ), the Court found the instrument was generally accepted. In State v. Ramel Jones, Index # 13–00989 (Westchester County Supreme Court 2015 [Cacace, J.] ) the Court denied the Respondent's motion to preclude or conduct a Frye hearing concerning the State's proposed use of the PCL–R.
This Court agrees with the conclusions in these decisions. The question here is somewhat different. These three cases analyzed whether the scoring instrument used to assess psychopathy was generally
accepted. The question here is whether the psychopathy (or psychopathic traits) diagnosis or specifier is generally accepted.
This Court conducted a detailed discussion of the psychopathy diagnosis in its recent decision in State v. Gary K., 53 Misc.3d 1207(A), 2016 N.Y. Slip Op. 51465(U), 2016 WL 6072390 (New York County Supreme Court 2016). Psychopathy is a condition which is asserted in the DSM–5 to be synonymous with the generally accepted diagnosis of Antisocial Personality Disorder ("ASPD"), although it has also often been called an "extreme form" of ASPD or described with other related formulations. Id., 2016 N.Y. Slip Op. at 15–19; DSM–5, p. 59.3 The psychopathy diagnosis is routinely made by psychologists and psychiatrists evaluating Article 10 respondents New York. New York's appellate courts, moreover, while never analyzing the general acceptance of psychopathy or the PCL–R, have discussed and affirmed judgments which included psychopathy diagnoses in numerous cases.
In State v. Dennis K., 27 N.Y.3d 718, 750, 37 N.Y.S.3d 765, 59 N.E.3d 500 (2016) the Court held that the diagnoses assigned to Respondent Richard TT., which included psychopathy, were valid Article 10 predicates. In State v. Jerome A., 137 A.D.3d 557, 27 N.Y.S.3d 150 (1st Dept.2016), the Court reversed a holding of this Court finding there was not probable cause to believe the Respondent was a sex offender requiring civil management under Article 10. The Respondent had been diagnosed by the State's expert with ASPD and psychopathy. In State v. Donald DD. & Kenneth T., 24 N.Y.3d 174, 996 N.Y.S.2d 610, 21 N.E.3d 239 (2014) (in the Donald DD. portion of the decision), the Court of Appeals held that a diagnosis of ASPD alone was an insufficient Article 10 predicate and dismissed the petition for that reason. In Jerome A., however, the Court found the petition sufficient because, in addition to being diagnosed with ASPD, the Respondent was also diagnosed with psychopathy. In other words, it was the diagnosis of psychopathy which transformed a petition which would have been invalid on its face (under Donald DD. ) to a petition which was legally sufficient. Obviously, inherent in that decision was the finding that psychopathy was a valid diagnosis. No Frye hearing was requested in that case. Other appellate courts have reached similar conclusions. See, e.g., State v. Ezikiel R., 147 A.D.3d 959, 48 N.Y.S.3d 181 (2d Dept.2017) (diagnoses of ASPD, psychopathy and other conditions legally sufficient to sustain Article 10 petition); State v. Richard L., 143 A.D.3d 519, 38 N.Y.S.3d 801 (1st Dept.2016) (similar); Suggs v. State, 142 A.D.3d 1283, 39 N.Y.S.3d 553 (4th Dept.2016) (diagnosis of ASPD plus "psychopathic traits" sufficient to constitute Mental Abnormality under Article 10).
These decisions reflect the fact that although significant criticisms have been leveled at the PCL–R (see e.g., State v. Gary K., supra, 2016 N.Y. Slip Op. at 16) and there continues to be debate about the precise definition of psychopathy (Id.,; State v. Kevin F., 51 Misc.3d 911, 31 N.Y.S.3d 756 (Kings County Supreme
Court 2016 [Riviezzo, J.] ), both the diagnosis and the instrument generally used to measure it are generally accepted.
The Respondent argues that these diagnoses or specifiers should be rejected because, although psychopathy is noted in the DSM–5 as being a synonym for ASPD, it is also the subject of a more extended discussion and analysis under the DSM–5 section: "Alternative DSM–5 Model for Personality Disorders". That section of the DSM–5 provides "a new approach that aims to address numerous shortcomings of the current approach to personality disorders" and provides alternative criteria for a number of disorders including ASPD and psychopathy. DSM–5, p. 761. The Respondent argues that both of the State's experts appear to have placed significant reliance on this "alternative" DSM–5 model in their diagnosis or specifier of psychopathy or psychopathic traits and asserts this must lead to the conclusion that these findings are not generally accepted or at least merit a Frye hearing. This Court does not agree.
There is nothing invalid, in this Court's view, in the reliance by an expert, in part, on the...
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...providing a "new approach" designed to avoid problems with the current approach to diagnoses.38 In its decision in State v. Nicholas T. , 55 Misc 3d 884, 888–889 (New York County Supreme Court 2017) this Court denied the respondent's motion to preclude the reliance, in part, by the State's ......