| Matter of Christopher PP. v State of New York |
| 2017 NY Slip Op 04935 [151 AD3d 1334] |
| June 15, 2017 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Christopher PP., Appellant, v State of NewYork, Respondent. |
Sheila E. Shea, Mental Hygiene Legal Service, Albany (Brent R. Stack of counsel), forappellant.
Eric T. Schneiderman, Attorney General, Albany (Frederick A. Brodie of counsel), forrespondent.
Lynch, J. Appeal from an order of the Supreme Court (Ellis, J.), entered September 17, 2015in Franklin County, which dismissed petitioner's application, in a proceeding pursuant to MentalHygiene Law article 10, for his discharge from confinement at a secure treatment facility.
Petitioner has a history of sexually inappropriate behavior, beginning as early as 2001 whenhe was 13 years old. In 2009, petitioner was convicted of sexual abuse in the first degreefollowing an incident involving a five-year-old girl. He was sentenced to a prison term of fouryears, followed by 10 years of postrelease supervision. In August 2013, respondent commenced aMental Hygiene Law article 10 proceeding seeking an order finding petitioner to be a dangeroussex offender in need of civil commitment. Petitioner was then diagnosed by two psychologistswith antisocial personality disorder (hereinafter ASPD), and they also noted a history of sexualpreoccupation. Subsequently, petitioner waived his right to a jury trial, stipulated to a finding thathe has a mental abnormality on the basis of his ASPD diagnosis, was determined to be adangerous sex offender and has been civilly confined in a secure treatment facility since April2014 (see Mental Hygiene Law § 10.01 et seq.).
Thereafter, the Court of Appeals held that ASPD is a diagnosis with "so little relevance to thecontrolling legal criteria of Mental Hygiene Law § 10.03 (i) that it cannot be reliedupon to show mental abnormality for [Mental Hygiene Law] article 10 purposes" (Matter of State of New York v DonaldDD., 24 NY3d 174, 190 [2014]). As a result of this decision, petitioner moved, [*2]pursuant to CPLR 5015 (a), for an order vacating Supreme Court'sApril 2014 order and dismissing the proceeding; the court converted the motion for vacatur to apetition for discharge (see Mental Hygiene Law § 10.09 [f]). The courtbifurcated the proceeding and, following an evidentiary hearing in May 2015 solely as to theissue of whether petitioner suffers from a mental abnormality (see Mental Hygiene Law§ 10.09 [d]), the court determined that petitioner does suffer from a mentalabnormality (see Mental Hygiene Law § 10.03 [i]). In September 2015,petitioner filed an affidavit waiving his right to a dispositional hearing and consenting to an orderdetermining that he is a dangerous sex offender requiring confinement, while retaining his rightto appeal from the finding that he suffers from a mental abnormality. The court, upon petitioner'sconsent, entered an order finding that petitioner was a "dangerous sex offender requiringconfinement" and, thus, continued his confinement (see Mental Hygiene Law§ 10.09 [h]). Petitioner now appeals.
Petitioner contends that respondent failed to establish that he suffers from a mentalabnormality predisposing him to commit sex offenses, specifically arguing that, because therewas not clear and convincing evidence that sexual preoccupation is a "condition, disease ordisorder" within the meaning of Mental Hygiene Law § 10.03 (i), the resultingfinding of a mental abnormality is improperly based solely upon his ASPD diagnosis.[FN*] We disagree. In order todemonstrate that petitioner is a dangerous sex offender requiring civil confinement, respondentmust prove by clear and convincing evidence that petitioner "has a mental abnormality involvingsuch a strong predisposition to commit sex offenses, and such an inability to control his behavior,that he is likely to be a danger to others and to commit sex offenses if not confined to a securetreatment facility" (Matter of State ofNew York v Richard TT., 132 AD3d 72, 75 [2015] [internal quotation marks, bracketsand citations omitted], affd 27NY3d 718 [2016]; see Mental Hygiene Law § 10.07 [f]). A mentalabnormality is defined as "a congenital or acquired condition, disease or disorder that affects theemotional, cognitive, or volitional capacity of a person in a manner that predisposes him or her tothe commission of conduct constituting a sex offense and that results in that person havingserious difficulty in controlling such conduct" (Mental Hygiene Law § 10.03 [i]; see Matter of Rene I. v State of NewYork, 146 AD3d 1056, 1057 [2017]). In Matter of State of New York v DonaldDD. (supra), the Court of Appeals clarified that "[a] diagnosis of ASPDalone—that is, when the ASPD diagnosis is not accompanied by a diagnosis of any othercondition, disease or disorder alleged to constitute a mental abnormality—simply does notdistinguish the sex offender whose mental abnormality subjects him to civil commitment fromthe typical recidivist convicted in an ordinary criminal case" (id. at 190). However, in2016, the Court of Appeals upheld a finding that an individual suffered from a mentalabnormality based upon, in relevant part, a diagnosis of ASPD, coupled with borderlinepersonality disorder and psychopathic conditions, when an expert testified as to how thosedisorders acted together to predispose that individual to commit sex offenses (see Matter ofState of New York v Dennis K., 27 NY3d 718, 749-752 [2016], cert denied 580 US&mdash, 137 S Ct 579 [2016]).
Here, respondent offered the testimony and reports of psychologists Alison Prince and JacobHadden, who relied on prior records in their evaluations because petitioner declined to beinterviewed by them. In determining that petitioner met the criteria for having a mentalabnormality as defined by Mental Hygiene Law article 10, Prince and Hadden both diagnosed[*3]petitioner with ASPD and sexual preoccupation, opining thatthe combination of the two predisposed petitioner to commit sex offenses. Prince characterizedsexual preoccupation as a "condition," noting that it was not included in the AmericanPsychological Association's Diagnostic and Statistical Manual of Mental Disorders because itwas "very difficult" to operationally define what would constitute such behavior. Hadden referredto sexual preoccupation as a "behavioral condition," a "behavioral pattern," as well as a"long-term vulnerability," noting that one reason that it was not considered a mental disorder wasdue to the risk of moral attitudes coming under the guise of science, but explaining that sexualpreoccupation factors into a finding of mental abnormality because it is a condition that "impactsthe way the [ASPD] is expressed." In contrast, petitioner offered the testimony and report offorensic psychologist Erik Schlosser, who interviewed petitioner and reviewed his records indetermining that, while petitioner has ASPD and possibly attention deficit hyperactivity disorder,petitioner does not have a mental abnormality for purposes of Mental Hygiene Law article 10.Schlosser characterized sexual preoccupation as a "cognitive or thought process," but would notdiagnose it as a condition, disorder or disease because "there is no diagnosis or criteria" for doingso. While Schlosser testified that petitioner occasionally has problems controlling his sexualbehavior, he opined that petitioner's sexual inappropriateness had decreased in frequency andintensity in the year preceding the hearing.
It is uncontested that petitioner has exhibited a troubling range of inappropriate sexualbehavior since childhood that has remained persistent into adulthood, including while on parole,during periods of incarceration and throughout his stays at treatment facilities. The fact thatsexual preoccupation is not included in the American Psychological Association's Diagnostic andStatistical Manual of Mental Disorders does not foreclose its relevance in finding a mentalabnormality under Mental Hygiene Law article 10 (see Matter of State of New York v Ian I., 127 AD3d 766, 767[2015]). Here, respondent's psychologists characterized sexual preoccupation as a "condition"and opined that petitioner's ASPD diagnosis, when coupled with his sexual preoccupation,predisposes him to commit sex offenses. Viewing this testimony in a light most favorable torespondent, we find this evidence was legally sufficient to support the determination thatpetitioner suffered from a mental abnormality within the meaning of Mental Hygiene Law article10 (see Matter of State of New York v Dennis K., 27 NY3d at 726, 751-752; Matter of State of New York vWilliams, 139 AD3d 1375, 1377 [2016], lv denied 28 NY3d 910 [2016]; compare Matter of State of New York vKenneth W., 131 AD3d 872, 873 [2015]; Matter of State of New York v Gen C., 128 AD3d 467, 467[2015]).
McCarthy, J.P., Egan Jr., Devine and Clark, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *:Petitioner did not request aFrye hearing to determine whether the diagnosis of sexual preoccupation is sufficientlyestablished to have gained general acceptance in the psychiatric community, resulting inrespondent's evidence concerning sexual preoccupation coming into evidence without objection.