SUPREME COURT DID NOT WEIGH THE CONFLICTING EXPERT TESTIMONY ABOUT WHETHER PETITIONER SEX-OFFENDER SUFFERED FROM A MENTAL ABNORMALITY REQUIRING CONFINEMENT PURSUANT TO THE MENTAL HYGIENE LAW; MATTER SENT BACK FOR A NEW HEARING BEFORE A DIFFERENT JUDGE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court in this sex-offender Mental-Hygiene-Law proceeding, determined the court did not base its decision to discharge and release the petitioner on the expert evidence presented at the hearing. The matter was sent back for a new hearing before a different judge:

The State’s expert here diagnosed petitioner with ASPD [antisocial personality disorder] with narcissistic features and the condition of psychopathy, and the expert testified that those diagnoses, together with petitioner’s enduring hostility towards women, collectively constitute a mental abnormality within the meaning of Mental Hygiene Law § 10.03 (i). She acknowledged that the scientific community has been debating for decades whether psychopathy is a distinct condition from ASPD, but she opined that they were indeed separate conditions. Petitioner’s expert, on the other hand, diagnosed petitioner with ASPD but testified that petitioner had no other conditions in addition to that diagnosis that would render him a sex offender within the meaning of Mental Hygiene Law article 10. He further testified that psychopathy was simply an extreme variant of ASPD and should not be considered a condition separate from ASPD.

The court determined that a diagnosis of psychopathy or psychopathic features is still only a diagnosis of ASPD alone and thus, under Donald DD. (24 NY3d at 190), could not constitute an “other condition” to provide a basis for a finding of a mental abnormality. … [I] so holding, the court did not resolve the conflict between the experts regarding ASPD and psychopathy by weighing their testimony but rather made a determination that, generally speaking and without regard to petitioner’s specific case, a finding of ASPD and psychopathy can never provide a basis for a finding of mental abnormality. Contrary to the court’s apparent conclusion, “the Court of Appeals in Donald DD. did not state that diagnosis of ASPD with psychopathy is insufficient to support a finding of mental abnormality” … . When supported by expert testimony, a diagnosis of ASPD and psychopathy is legally sufficient to provide a basis for a finding of mental abnormality Inasmuch as there was conflicting expert opinion on the matter, the court should have weighed the testimony of the experts in rendering its determination whether petitioner suffers from a mental abnormality … . Matter of Application for Discharge of Doy S. v State of New York. 2021 NY Slip Op 04456, Fourth Dept 7-16-21