TWO PSYCHOLOGICAL DIAGNOSES INTRODUCED IN EVIDENCE IN APPELLANT’S MENTAL HYGIENE LAW CIVIL COMMITMENT TRIAL HAVE NOT BEEN ACCEPTED BY THE PSYCHOLOGICAL COMMUNITY; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, ordering a new trial in this Mental Hygiene Law civil commitment proceeding, determined two unreliable diagnoses were admitted in evidence. The matter had been sent back for a Frye hearing and Supreme Court issued a report finding the diagnoses are not accepted in the psychological community:

In June 2013, the State of New York commenced this proceeding pursuant to Mental Hygiene Law article 10 for the civil management of the appellant. Two psychologists evaluated the appellant at the State’s request and issued reports and testified that they diagnosed the appellant as suffering from, among other things, paraphilia not otherwise specified (nonconsent) (hereinafter PNOS [nonconsent]) and other specified paraphilic disorder (biastophilia or nonconsent), with sexually sadistic traits in a controlled environment (hereinafter OSPD [biastophilia or nonconsent] with sexually sadistic traits). * * *

… [T]he record supports the Supreme Court’s conclusion that the State failed to establish that the diagnoses of PNOS (nonconsent) and its successor diagnosis, OSPD (nonconsent), are generally accepted in the psychiatric and psychological communities. The evidence at the Frye hearing established that the diagnoses were repeatedly rejected for inclusion in the Diagnostic and Statistical Manual of Mental Disorders (hereinafter DSM), and that no consensus on the validity of the diagnoses had been reached subsequent to the publication of the latest edition of the DSM in 2013. There was no clear definition or criteria for the diagnoses. Accordingly, the court erred in admitting evidence of the PNOS (nonconsent) and OSPD (nonconsent) diagnoses at the appellant’s trial. Matter of State of New York v Ronald S., 2020 NY Slip Op 04845, Second Deptp 9-2-20