| Matter of State of New York v Spencer D. |
| 2012 NY Slip Op 04350 [96 AD3d 768] |
| June 6, 2012 |
| Appellate Division, Second Department |
| In the Matter of State of New York, Respondent, v SpencerD., Appellant. |
—[*1] Eric T. Schneiderman, Attorney General, New York, N.Y. (Richard Dearing and MatthewW. Grieco of counsel), for respondent.
In a proceeding pursuant to Mental Hygiene Law article 10 for the civil management ofSpencer D., a sex offender allegedly suffering from a mental abnormality and requiring civilmanagement, Spencer D. appeals from an order of the Supreme Court, Westchester County(Cacace, J.), dated May 25, 2011, which, upon a finding, made after a nonjury trial, that hesuffers from a mental abnormality as defined in Mental Hygiene Law § 10.03 (i), and adetermination, made after a dispositional hearing, that he is a sex offender requiring strict andintensive supervision, in effect, granted the petition and directed that he be subject to a regimenof strict and intensive supervision and treatment.
Ordered that the order is affirmed, without costs or disbursements.
Following a nonjury trial, the Supreme Court found that Spencer D. (hereinafter theappellant) suffers from a mental abnormality within the meaning of Mental Hygiene Law §10.03 (i) and, after a dispositional hearing, determined that he is a sex offender requiring strictand intensive supervision. In the order appealed from, the Supreme Court, in effect, granted theState of New York's petition for the civil management of the appellant, and directed that he besubject to a regimen of strict and intensive supervision and treatment.
On appeal, the appellant contends that the term "mental abnormality" as defined in MentalHygiene Law § 10.03 (i) is unconstitutionally vague both on its face and as applied to him.A "mental abnormality" is defined as "a congenital or acquired condition, disease or disorder thataffects the emotional, cognitive, or volitional capacity of a person in a manner that predisposeshim or her to the commission of conduct constituting a sex offense and that results in that personhaving serious difficulty in controlling such conduct" (Mental Hygiene Law § 10.03 [i]).
"[C]ivil as well as penal statutes can be tested for vagueness under the due process clause"(Montgomery v Daniels, 38 NY2d 41, 58 [1975]; see Matter of Kaur v New York State Urban Dev. Corp., 15 NY3d235, 256 [2010], cert denied sub nom. Tuck-It-Away, Inc. v New York State Urban Dev.Corp., 562 US —, 131 S Ct 822 [2010]; Goldberg v Corcoran, 153 AD2d 113,118-119 [1989]). "In addressing vagueness challenges, courts have developed a two-part test.The first essentially restates [*2]the classical notice doctrine: Toensure that no person is punished for conduct not reasonably understood to be prohibited, thecourt must determine whether the statute in question is sufficiently definite to give a person ofordinary intelligence fair notice that [her or] his contemplated conduct is forbidden by thestatute" (People v Stuart, 100 NY2d 412, 420 [2003] [internal quotation marks omitted];see Grayned v City of Rockford, 408 US 104, 108-109 [1972]; People v Nelson,69 NY2d 302, 307 [1987]; Town of Islip v Caviglia, 141 AD2d 148, 163 [1988],affd 73 NY2d 544 [1989]). "Second, the court must determine whether the enactmentprovides officials with clear standards for enforcement" (People v Stuart, 100 NY2d at420; see Grayned v City of Rockford, 408 US at 109; People v Nelson, 69 NY2dat 307; Town of Islip v Caviglia, 141 AD2d at 163).
A statute may be challenged as unconstitutionally vague on its face or as applied (seePeople v Stuart, 100 NY2d at 421). A challenge to a statue as applied requires the court toconsider whether the statute can be constitutionally applied to the party challenging it under thefacts of the case (id. at 421). In contrast, "a facial challenge requires the court to examinethe words of the statute on a cold page and without reference to the . . . conduct [ofthe party challenging the statute]. In pursuing a facial challenge, the [party challenging thestatute] must carry the heavy burden of showing that the statute is impermissibly vague in all ofits applications" (id. at 421 [internal quotation marks and citations omitted]).
"Because facial challenges to statutes are generally disfavored and legislative enactmentscarry a strong presumption of constitutionality, a court's task when presented with both a facialand as-applied argument is first to decide whether the assailed statute is impermissibly vague asapplied to the [party challenging it]" (id. at 422 [citations omitted]). "If it is not and thestatute provides the [party challenging the statute] with adequate notice and the [agencyenforcing the statute] with clear criteria, that is the end of the matter" (id. at 422). " '[T]hecourt will not strain to imagine marginal situations in which the application of the statute is notso clear' " (id. at 422, quoting People v Nelson, 69 NY2d at 308; see People vShack, 86 NY2d 529, 538 [1995]; Town of Islip v Caviglia, 141 AD2d at 163).
Here, the appellant argues that Mental Hygiene Law § 10.03 (i) is unconstitutional asapplied to him because the phrase "condition, disease or disorder" is undefined and the diagnosismade by the State's expert—paraphilia not otherwise specified (hereinafter NOS)(hebephilia)—is not listed as a specifically designated diagnosis in the AmericanPsychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition(hereinafter DSM-IV). However, Mental Hygiene Law § 10.03 (i) does not require adesignated diagnosis under the DSM-IV for a finding of a mental abnormality (cf. MentalHygiene Law § 1.03 [52]). All that is required is a congenital or acquired condition,disease, or disorder that affects the emotional, cognitive, or volitional capacity of a person in amanner that predisposes him or her to the commission of conduct constituting a sex offense.Contrary to the appellant's contention, the terms "condition," "disease," and "disorder" aresufficiently definite to give a person of ordinary intelligence a reasonable opportunity to make thedetermination.
Here, the State's expert psychiatrist concluded that the appellant suffered from paraphiliaNOS, a "disorder of sexual arousal," based upon hebephilia, an attraction to post-pubescentteenage boys, which predisposes him to committing sexual offenses, and that the appellant hashad serious difficulty controlling his conduct. The State's expert explained that while hebephiliawas not a specifically defined subcategory of paraphilia listed in the DSM-IV, paraphilia NOS,which is a specifically defined subcategory of paraphilia, encompassed hebephilia. Under thecircumstances of this case, the term "mental abnormality" as defined in Mental Hygiene Law§ 10.03 (i) is not unconstitutionally vague as applied.
Thus, since there exists at least one constitutional application of the statute, it is not invalidon its face (see People v Stuart, 100 NY2d at 429).
"In reviewing a determination made after a nonjury trial, the power of the Appellate Divisionis as broad as that of the trial court and it may render the judgment it finds warranted by the facts,taking into account that in a close case the trial judge had the advantage of seeing and hearing[*3]the witnesses" (Matter of State of New York v Clarence D., 82 AD3d 776, 777[2011]; see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d492, 499 [1983]; Matter of State of NewYork v Leon F., 84 AD3d 1098, 1100 [2011]). Contrary to the appellant's contention,the testimony of one of the witnesses of the State was not incredible (cf. Matter of Robert D., 69 AD3d714, 716-717 [2010]). The State established, by clear and convincing evidence, that theappellant suffered from a "mental abnormality" (Mental Hygiene Law § 10.03 [i]; see Matter of State of New York vStein, 85 AD3d 1646 [2011], lv granted 17 NY3d 894 [2011]; Matter ofState of New York v Leon F., 84 AD3d at 1100; Matter of State of New York v Gierszewski, 81 AD3d 1473[2011]). Balkin, J.P., Leventhal, Hall and Austin, JJ., concur.