Frye Hearing to Determine Acceptance of Paraphilia NOS Diagnosis Required

The Second Department determined defendant sex offender’s request for a Frye hearing in Mental Hygiene Law proceedings for civil commitment should have been granted. Defendant questioned the general acceptance in the psychiatric community of a “paraphilia NOS” diagnosis:

“[E]xpert testimony based on scientific principles or procedures is admissible but only after a principle or procedure has gained general acceptance in its specified field” … . Recently, in Matter of State of New York v Donald DD. (24 NY3d 174), the Court of Appeals noted that paraphilia NOS “is a controversial diagnosis,” and that it had not yet decided “the question that would be decided at a Frye hearing: whether the diagnosis of paraphilia NOS . . . has gained general acceptance in the psychiatric community'” (id. at 186-187). However, the Court of Appeals declined to reach this issue in Matter of Donald DD. because no Frye hearing had been requested or held (id. at 187). Here, however, a Frye hearing was requested and the appellant supported his request with scientific literature. Under these circumstances, a Frye hearing should be conducted to resolve the question of whether the diagnosis of paraphilia NOS has achieved general acceptance in the psychiatric and psychological communities. Matter of State of New York v Richard S., 2015 NY Slip Op 08179, 2nd Dept 11-12-15