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FRYE HEARING REQUIRED TO DETERMINE WHETHER “OTHER UNSPECIFIED PARAPHILIC” DISORDER IS A DIAGNOSIS WHICH IS GENERALLY ACCEPTED IN THE PSYCHIATRIC AND PSYCHOLOGICAL COMMUNITIES.

The Second Department determined a Frye hearing was necessary “to resolve the question of whether the diagnosis of ‘other unspecified paraphilic disorder’ has achieved general acceptance in the psychiatric and psychological communities so as to make expert testimony on that diagnosis admissible …”. Two psychologists evaluated the appellant sex offender and found he suffered from “other unspecified paraphilic” disorder. The defense asked for a Frye hearing to ascertain whether the diagnosis was generally accepted in the psychiatric and psychological communities. The request was denied. The jury found appellant suffered from a mental abnormality within the meaning of the Mental Hygiene Law and the court determined appellant was a sex offender requiring strict and intensive supervision and trreatment:

“[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 the Court of Appeals had not yet decided “the question that would be decided at a Frye hearing: whether the diagnosis of paraphilia NOS . . . has received general acceptance in the psychiatric community ” … . However, the Court of Appeals declined to reach this issue in Donald DD. because no Frye hearing had been requested or held … . Here, given the fact that “other unspecified paraphilic disorder” was the primary diagnosis upon which the State’s experts relied to show that the appellant’s attempted kidnapping offense was sexually motivated and that he suffered from a mental abnormality, the Supreme Court should have conducted a Frye hearing to resolve the question of whether the diagnosis of “other unspecified paraphilic disorder” has achieved general acceptance in the psychiatric and psychological communities … . Matter of State of New York v Hilton C., 2016 NY Slip Op 05158, 2nd Dept 6-29-16

MENTAL HYGIENE LAW (FRYE HEARING REQUIRED TO DETERMINE WHETHER “OTHER UNSPECIFIED PARAPHILIC” DISORDER IS A DIAGNOSIS WHICH IS GENERALLY ACCEPTED IN THE PSYCHIATRIC AND PSYCHOLOGICAL COMMUNITIES)/EVIDENCE (MENTAL HYGIENE LAW, FRYE HEARING REQUIRED TO DETERMINE WHETHER “OTHER UNSPECIFIED PARAPHILIC” DISORDER IS A DIAGNOSIS WHICH IS GENERALLY ACCEPTED IN THE PSYCHIATRIC AND PSYCHOLOGICAL COMMUNITIES)/EXPERT EVIDENCE (MENTAL HYGIENE LAW, FRYE HEARING REQUIRED TO DETERMINE WHETHER “OTHER UNSPECIFIED PARAPHILIC” DISORDER IS A DIAGNOSIS WHICH IS GENERALLY ACCEPTED IN THE PSYCHIATRIC AND PSYCHOLOGICAL COMMUNITIES)/MENTAL ABNORMALITY (MENTAL HYGIENE LAW, FRYE HEARING REQUIRED TO DETERMINE WHETHER “OTHER UNSPECIFIED PARAPHILIC” DISORDER IS A DIAGNOSIS WHICH IS GENERALLY ACCEPTED IN THE PSYCHIATRIC AND PSYCHOLOGICAL COMMUNITIES)/FRYE HEARING (MENTAL HYGIENE LAW, FRYE HEARING REQUIRED TO DETERMINE WHETHER “OTHER UNSPECIFIED PARAPHILIC” DISORDER IS A DIAGNOSIS WHICH IS GENERALLY ACCEPTED IN THE PSYCHIATRIC AND PSYCHOLOGICAL COMMUNITIES)/SEX OFFENDERS (MENTAL HYGIENE LAW, FRYE HEARING REQUIRED TO DETERMINE WHETHER “OTHER UNSPECIFIED PARAPHILIC” DISORDER IS A DIAGNOSIS WHICH IS GENERALLY ACCEPTED IN THE PSYCHIATRIC AND PSYCHOLOGICAL COMMUNITIES)

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