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A DIAGNOSIS OF ANTISOCIAL PERSONALITY DISORDER WITH NARCISSISTIC AND PARANOID FEATURES IS SUFFICIENT TO SUPPORT CIVIL COMMITMENT IN A SECURE FACILITY PURSUANT TO CPL 330.20.

In finding that respondent suffers from a dangerous mental disorder requiring civil commitment in a secure facility, the Third Department first determined a diagnosis of antisocial personality disorder (ASPD) with narcissistic and paranoid features was sufficient to justify civil commitment pursuant to Criminal Procedure Law 330.20:

… [R]espondent contends, among other things, that the fact that ASPD, alone, is a legally insufficient diagnosis for the purposes of civil confinement pursuant to Mental Hygiene Law article 10 (see Matter of State of New York v Donald DD., 24 NY3d 174, 191 [2014]) merits the conclusion that a diagnosis of ASPD with narcissistic and paranoid features is a legally insufficient diagnosis for the purposes CPL 330.20. The Supreme Court of the United States has established that “[s]tates retain considerable leeway in defining the mental abnormalities and personality disorders that make an individual eligible for [civil] commitment” … . The constitutional guarantee of due process limits that discretion, however, by ensuring that civil commitment is not used as a mechanism to identify and confine the dangerous but “typical [criminal] recidivist[s]” … . With this in mind, proof sufficient to satisfy due process requires proof of a mental condition that causes a person to have serious difficulty in controlling his or her dangerous behavior … .

* * * CPL 330.20 (1) (c) … does not limit the relevant form of dangerousness in the same manner; it only requires a relationship between respondent’s current mental condition and “a physical danger to himself [or herself] or others.”

Further, the diagnosis of ASPD with narcissistic and paranoid features is more specific than a generic ASPD diagnosis. Accordingly, this case does not force us to confront a generic ASPD diagnosis that, as elucidated by expert evidence, “means little more than a deep-seated tendency to commit crimes” … . Therefore, we turn to the expert evidence further clarifying respondent’s ASPD diagnosis and its attendant narcissistic and paranoid features.

Expert testimony established that ASPD causes individuals to have “distortions related to their thoughts [and] behaviors, and . . . a reckless disregard for societal norms.” Individuals are diagnosed with narcissistic features when they engage in “grandiose” thinking, have a “sense of self-importance” and feel “entitled” and possibly omnipotent. Finally, individuals with paranoid features often have feelings that “people are out to get them.” Considering this evidence, we conclude that a mental condition marked by a disregard for societal norms and specifically amplified by an unreasonably inflated sense of self worth and an irrational attribution of hostile intentions to other people sufficiently distinguishes a respondent from the typical recidivist and has a relationship to the requisite dangerousness pursuant to CPL 330.20. Accordingly, we conclude that the diagnosis of ASPD with narcissistic and paranoid features is not legally insufficient to support civil confinement pursuant to CPL 330.20. Matter of John Z. (Commissioner of Mental Health), 2016 NY Slip Op 01234, 3rd Dept 2-18-16

 

CRIMINAL LAW (CIVIL COMMITMENT JUSTIFIED BY DIAGNOSIS OF ANTISOCIAL PERSONALITY DISORDER WITH NARCISSISTIC AND PARANOID FEATURES)/CIVIL COMMITMENT (JUSTIFIED BY DIAGNOSIS OF ANTISOCIAL PERSONALITY DISORDER WITH NARCISSISTIC AND PARANOID FEATURES)/DANGEROUS MENTAL DISORDER (CIVIL COMMITMENT JUSTIFIED BY DIAGNOSIS OF ANTISOCIAL PERSONALITY DISORDER WITH NARCISSISTIC AND PARANOID FEATURES)

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HEARSAY EVIDENCE OF CHARGES OF WHICH SEX OFFENDER WAS ACQUITTED AND CHARGES WHICH WERE DISMISSED SHOULD NOT HAVE BEEN CONSIDERED, NEW TRIAL ORDERED.

The First Department determined respondent sex-offender was entitled to a new civil-commitment trial because the state’s expert relied on sex-offense charges of which respondent was acquitted and other sex-offense charges which were dismissed. The acquittal was completely off-limits. And no evidence to demonstrate respondent had committed the dismissed offenses was presented. The court noted that, in order to preserve a challenge to the sufficiency of the evidence in these Mental Hygiene Law proceedings, a motion for a directed verdict must be made at the close of the state’s proof:

 

Respondent failed to preserve his remaining claims that the trial evidence was legally insufficient to support the jury’s verdict. In order to challenge the sufficiency of the evidence on appeal, a party must first have moved for a directed verdict under CPLR 4401 … . Here, respondent never moved before the trial court for a directed verdict or otherwise challenged the legal sufficiency of the evidence. Thus, his claims are unpreserved for appellate review, and we decline to reach them.

… [T]he court erred in allowing the State’s experts, in explaining the basis for their opinions, to testify regarding two sets of sex offense charges against respondent that did not result in convictions (see Matter of State of New York v Floyd Y., 22 NY3d 95 [2013]). In Floyd Y., the Court held that hearsay basis evidence satisfies due process only if it is demonstrated to be reliable and its probative value outweighs its prejudicial effect (id. at 109). Here, one set of charges resulted in an acquittal, and so was categorically precluded from providing the basis for reliability (id. at 110). The second group of charges, which resulted in dismissal, also failed to meet the reliability threshold, because they were unaccompanied by indicia that respondent committed the charged acts notwithstanding the lack of a conviction (see id.). Accordingly, a new trial is required. Matter of State of New York v David S., 2016 NY Slip Op 00777, 1st Dept 2-4-16

 

MENTAL HYGIENE LAW (EVIDENCE OF CHARGES OF WHICH SEX OFFENDER WAS ACQUITTED AND CHARGES WHICH WERE DISMISSED SHOULD NOT HAVE BEEN CONSIDERED IN ARTICLE 10 TRIAL)/EVIDENCE (HEARSY EVIDENCE OF CHARGES OF WHICH SEX OFFENDER WAS ACQUITTED AND CHARGES WHICH WERE DISMISSED SHOULD NOT HAVE BEEN CONSIDERED IN ARTICLE 10 TRIAL)/APPEALS (TO PRESERVE CHALLENGE TO LEGAL SUFFICIENCY OF EVIDENCE IN A MENTAL HYGIENE LAW ARTICLE 10 SEX-OFFENDER CIVIL-COMMITMENT PROCEEDING, SEX OFFENDER MUST MOVE FOR A DIRECTED VERDICT)

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SEX OFFENDER CAN NOT BE KEPT IN PRISON AFTER SERVING HIS MAXIMUM SENTENCE ON THE GROUND SUITABLE HOUSING HAD NOT YET BEEN FOUND.

The Third Department, in a full-fledged opinion by Justice Lynch, determined a sex offender could not be kept in prison after he had served his maximum sentence on the ground that suitable housing had not yet been found:

 

There is no dispute here that, due to petitioner’s status as a risk level III sex offender, his release was subject to the mandatory condition that he have suitable housing located more than 1,000 feet from school grounds (see Executive Law § 259-c [14]…). Further, petitioner concedes that the Board of Parole (hereinafter the Board) was authorized to order, on January 15, 2015, that he be transferred to an RTF [residential treatment facility] (see Penal Law § 70.45 [3]; Correction Law § 73 [10]). In response to the petition, respondents explain that petitioner was assigned, but never actually transferred, to Woodbourne Correctional Facility, an RTF, due to an unspecified mental health condition … . Accordingly, there is no dispute that petitioner remained confined in a maximum security correctional facility for more than eight months past the expiration of his three-year determinate sentence. Respondents provide no convincing authority for this unilateral decision, nor do we discern any.

We have previously held that the Board has discretion to deny parole release to an inmate who has not secured an approved residence on his or her conditional release date … . In contrast, we recently held that DOCCS does not have the authority to retain an inmate beyond the inmate’s maximum expiration date in order to finalize the terms of PRS [postrelease supervision], because it was conclusively bound by the sentence and commitment order … . … [W]e find that when a risk level III sex offender reaches his or her maximum expiration date, DOCCS must release the individual to either an approved residence or to an RTF. Where an individual needs mental health treatment not otherwise available at an RTF, DOCCS must, prior to the release date, seek a court order authorizing continued hospitalization pursuant to Mental Hygiene Law article 9 or admission to a secure detention facility pursuant to Mental Hygiene Law article 10 (see Correction Law § 404). People ex rel. Green v Superintendent of Sullivan Corr. Facility, 2016 NY Slip Op 00417, 3rd Dept 1-21-16

 

CRIMINAL LAW (SEX OFFENDER CAN NOT BE KEPT IN PRISON AFTER SERVING MAXIMUM SENTENCE ON GROUND SUITABLE HOUSING HAS NOT YET BEEN FOUND)/SEX OFFENDERS (SEX OFFENDER CAN NOT BE KEPT IN PRISON AFTER SERVING MAXIMUM SENTENCE ON GROUND SUITABLE HOUSING HAS NOT YET BEEN FOUND)/MENTAL HYGIENE LAW (SEX OFFENDER CAN NOT BE KEPT IN PRISON AFTER SERVING MAXIMUM SENTENCE ON GROUND SUITABLE HOUSING HAS NOT YET BEEN FOUND)

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PETITIONER’S MOTION FOR A DIRECTED VERDICT IN AN ARTICLE 10 TRIAL SHOULD NOT HAVE BEEN GRANTED; A TRIABLE ISSUE HAD BEEN RAISED CONCERNING PETITIONER’S ABILITY TO CONTROL HIS SEXUAL CONDUCT.

The Fourth Department, over a two-justice dissent, reversing Supreme Court, determined that petitioner-sex-offender’s motion for a directed verdict in an Article 10 trial should not have been granted. Petitioner had been deemed a dangerous sex offender and was committed to a secure facility. In the instant proceeding, petitioner sought release under a regimen of strict and intensive supervision and treatment. The state presented evidence petitioner had been diagnosed with antisocial personality disorder, paraphila otherwise specified, and cannabis dependence.  The majority concluded that the state’s expert, Dr. Prince, had presented sufficient additional evidence, including a history of defendant’s sexual behavior, his response to treatment, and the results of psychological tests, to raise a triable issue of fact whether defendant had serious difficulty in controlling difficulty controlling his sexual conduct:

When coupled with the evidence of petitioner’s clear, well-defined cycle of offending that begins with becoming frustrated, the deficits in his recent treatment plan on that specific area, and his stagnating course of treatment, we conclude that Dr. Prince’s opinion and the supporting evidence, ” when viewed in light of such features of the case as the nature of the psychiatric diagnosis, and the severity of the mental abnormality itself, [establish that petitioner is a] . . . dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment[, rather than a] dangerous but typical recidivist convicted in an ordinary criminal case’ ” … . Thus, respondents submitted sufficient evidence that, if it is credited by the factfinder, would establish that petitioner has a condition, disease or disorder “that predisposes him . . . to the commission of conduct constituting a sex offense and that results in [petitioner] having serious difficulty in controlling such conduct” (§ 10.03 [i] …). Consequently, we conclude that, if the factfinder accepts that evidence, there is a “rational process by which the [factfinder] could find for [respondents] as against” petitioner … . Matter of Wright v State of New York, 2015 NY Slip Op 09711, 4th Dept 12-31-15

MENTAL HYGIENE LAW (TRIABLE QUESTION OF FACT WHETHER PETITIONER HAD SERIOUS DIFFICULTY CONTROLLING SEXUAL CONDUCT)/SEX OFFENDERS (MENTAL HYGIENE LAW, TRIABLE QUESTION OF FACT WHETHER PETITIONER HAD SERIOUS DIFFICULTY CONTROLLING SEXUAL CONDUCT)

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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

 

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Pedophilia Diagnosis, in Combination with Anti-Social Personality Disorder (ASPD), Substance Abuse Disorders, Failed Treatment and History of Sexual Misconduct, Constituted Sufficient Proof Respondent Had Serious Difficulty Controlling His Behavior Warranting Civil Commitment

The First Department, in a full-fledged opinion by Justice Richter, reversed Supreme Court (which had set aside the jury verdict) and determined civil commitment of respondent sex offender was supported by the evidence. The case is another attempt to interpret and implement the criteria for civil commitment laid out by the Court of Appeals in Matter of State of New York v Donald DD. (Kenneth T.), 24 NY 3d 174 (2014). The respondent here was diagnosed with pedophilia, which, combined with anti-social personality disorder (ASPD), substance abuse disorders, respondent’s history of sexual misconduct, and his failure to benefit from treatment programs, was deemed sufficient proof respondent had difficulty controlling his behavior:

In Kenneth T., the State’s expert testified that Kenneth T. suffered from paraphilia not otherwise specified (paraphilia NOS) and ASPD, and that, together, these disorders predisposed him to committing sexual misconduct and resulted in his having serious difficulty controlling that conduct. In concluding that Kenneth T. had the requisite serious difficulty, the expert identified two factors: the fact that Kenneth T. had carried out two rapes under circumstances allowing for identification by his victims, and the fact that he committed the second rape despite having spent significant time in prison for the earlier rape. In finding this evidence legally insufficient, the Court stated that the serious difficulty prong could rarely, if ever, be satisfied from the facts of a sex offense alone … .

Here, in contrast, [the State’s expert] did not solely rely on the facts of respondent’s sex offenses in concluding that he had serious difficulty controlling his urges. Instead, Dr. [the expert] based his opinion on respondent’s triple diagnosis (pedophilia, ASPD and substance abuse disorders), his pattern of sexual misconduct, and his abject failure to satisfactorily progress in treatment. Notably, the underlying sexual disorder in Kenneth T. was paraphilia NOS, not pedophilia. The distinction is critical because, unlike paraphilia, pedophilia can only be diagnosed where the individual has actually acted upon sexual urges towards prepubescent children (or has experienced significant distress at those urges) for more than six months. Thus, pedophilia, by definition, involves an element of difficulty in control. Further, the DSM-5 explicitly recognizes that the dangerous combination of respondent’s ASPD and pedophilia increases the likelihood that he will act out sexually with children (see DSM-5 at 699). In addition, the diagnosis of respondent’s substance abuse disorders, not present in Kenneth T., provides a further basis for the jury’s finding of serious difficulty. * * *

By this decision, we do not hold that all offenders who suffer from pedophilia are automatically, by virtue of that diagnosis alone, subject to mandatory civil management. We simply hold that the State’s evidence in this case — including respondent’s multiple diagnoses, his history of sexual misconduct, his admitted inability to control his pedophilic urges, his lack of satisfactory progress in sex offender treatment and his failure to have a viable relapse prevention plan — was legally sufficient to uphold the jury’s conclusion that respondent has difficulty controlling his sexually offending behavior. Matter of State of New York v Floyd Y., 2015 NY Slip Op 08102, 1st Dept 11-10-15

 

Need for Appointment of a Guardian of Property Not Demonstrated, Criteria Explained

The Second Department, reversing Supreme Court, determined the appellant’s sister, Marie F., did not meet her burden of proving by clear and convincing evidence appellant was incapacitated. The sister had been appellant’s property guardian and, in being removed, requested that another guardian be appointed. The court explained the relevant criteria:

“Mental Hygiene Law article 81 confers upon the court the discretion to determine whether a guardian should be appointed for an alleged incapacitated person” … . “In exercising its discretion to appoint a guardian for an individual’s property . . . , a court must make a two-pronged determination: first, that the appointment is necessary to manage the property or financial affairs of that person, and, second, that the individual either agrees to the appointment or that the individual is incapacitated’ as defined in Mental Hygiene Law § 81.02(b)” … . A person is incapacitated when the person is likely to suffer harm because: (1) the person is unable to provide for property management, and (2) the person cannot adequately understand and appreciate the nature and consequences of such inability (see Mental Hygiene Law § 81.02[b]). A determination that a person is incapacitated under the provisions of Mental Hygiene Law article 81 “must be based on clear and convincing evidence” (Mental Hygiene Law § 81.12[a]). When a party seeks to terminate a guardianship, “the burden of proof shall be on the person objecting to such relief” (Mental Hygiene Law § 81.36[d]).

Here, although Marie F. wished to be removed as guardian, she was the only person who objected to the termination of the guardianship position and asked the Supreme Court to appoint a new guardian. However, Marie F. failed to meet her burden of proving by clear and convincing evidence that the appellant was incapacitated. The hearing testimony demonstrated that the appellant managed her own checking account, paid bills relating to her apartment with her social security disability income, and was taking steps to challenge the Medicaid lien. While the appellant was currently unemployed, she holds a Master’s degree and testified that she was “interviewing consistently.” Although Marie F. testified that the appellant had delusions and difficulty maintaining employment, her testimony was vague, unsupported by additional evidence, and did not rise to the level of clearly and convincingly demonstrating the appellant’s inability to provide for property management and a lack of understanding about the nature and consequences of such inability. Similarly, although Marie F. testified as to the appellant’s spending habits, she failed to sufficiently demonstrate that the appellant’s expenditures over the years were wasteful and thereby indicative of an inability on the part of the appellant to provide for her own property management and understand her budgetary constraints.

Since the record does not contain clear and convincing evidence that the appellant was unable to manage her finances or understand and appreciate her limitations, the Supreme Court erred in determining that the appellant was incapacitated, appointing a new guardian of her property, and denying her motion to terminate the guardianship. Matter of Deborah P. (Marie F.), 2015 NY Slip Op 07977, 2nd Dept 11-4-15

 

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Expert Who Evaluated Sex Offender As Part of the Initial Case Review Team Was Properly Allowed to Testify at the Civil Commitment Hearing

The Third Department, in a full-fledged opinion by Justice Garry, determined that the psychologist/psychiatrist (Barnes), who was part of the sex offender’s (respondent’s) case review team which recommended civil commitment, was properly allowed to testify at the Article 10 hearing. The respondent had sought to prevent Barnes from testifying because another psychiatrist (for the state) had been appointed for the hearing. The Third Department held that nothing in the Mental Hygiene Law prevented both experts from testifying for the state, and nothing in the Mental Hygiene Law prevented Barnes from having access to relevant diagnostic information generated after he had completed his evaluation for the case review team:

The degree to which Mental Hygiene Law article 10 authorizes a psychiatric examiner who has evaluated a respondent pursuant to Mental Hygiene Law § 10.05 (e) to continue to participate in subsequent proceedings involving the same respondent appears to be a question of first impression. However, nothing in the statute affirmatively precludes such continued participation, and the Court of Appeals has held that relevant evidence may be admissible in article 10 proceedings when “no statute prohibits its use” (Matter of State of New York v John P., 20 NY3d 941, 943 [2012]). As for whether a psychiatric examiner may supplement his or her evaluation report by investigating records of the respondent’s progress following completion of the report, and then rely on such updated information in testifying on the question of confinement, as Barnes did here, Mental Hygiene Law § 10.05 (e) provides the case management team and assigned psychiatric examiner with extensive access to relevant records as part of the initial evaluation. To limit the psychiatric examiner’s subsequent access to relevant information would be inconsistent with the statutory provisions that permit the parties to offer additional evidence on the question of a respondent’s dangerousness at the dispositional hearing and further direct that, “[i]n making a finding of disposition, the court shall consider . . . all available information about the prospects for the respondent’s possible re-entry into the community” (Mental Hygiene Law § 10.07 [f] [emphasis added]).

Contrary to respondent’s argument, petitioner was not required to demonstrate that Barnes’ testimony was “necessary.” Instead, in the absence of any rule prohibiting such evidence, the test for admissibility is whether the testimony is material and relevant to the issues posed … . Here, Barnes possessed knowledge of respondent’s pathology that was clearly material and relevant on the issue of whether he required confinement. * * *

Likewise, we find no abuse of discretion in the denial of respondent’s motion for the appointment of a second expert. Matter of State of New York v James K., 2015 NY Slip Op 07874, 3rd Dept 10-29-15

 

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Anti-Social Personality Disorder (ASPD) Alone Will Not Support Civil Commitment of Sex Offender

The Second Department noted that the diagnosis that a sex offender suffers from anti-social personality disorder (ASPD) is insufficient to justify civil commitment:

A diagnosis of anti-social personality disorder (hereinafter ASPD) “has so little relevance to the controlling legal criteria of Mental Hygiene Law § 10.03(i) that it cannot be relied upon to show mental abnormality for [Mental Hygiene Law] article 10 purposes” … . Since ASPD was the sole diagnosis underlying the jury’s finding that the appellant suffers from a mental abnormality as defined in Mental Hygiene Law § 10.03(i), the finding was not supported by legally sufficient evidence, and the petition must be dismissed … .  Matter of State of New York v Odell A., 2015 NY Slip Op 07851, 2nd Dept 10-28-15

 

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Patient Held In a Mental Health Facility After the Court Order Authorizing Confinement Had Expired Was Entitled to Habeas Corpus Relief Pursuant to CPLR Article 70

The Court of Appeals, in a full-fledged opinion by Judge Stein, over a dissent, reversing the appellate division, determined that a patient, who was held in a mental health facility pursuant to a court order which the facility neglected to extend, was entitled to release pursuant to a CPLR article 70 habeas corpus proceeding. The hospital unsuccessfully argued that the only habeas-corpus relief available to the patient was pursuant to Mental Hygiene Law 33.15 which required an inquiry into the patient’s mental state:

CPLR 7001 provides that article 70 applies to common-law and statutory writs of habeas corpus “[e]xcept as otherwise prescribed by statute” (CPLR 7001). However, nothing in the plain language of Mental Hygiene Law § 33.15 purports to limit the availability of the common-law writ in Mental Hygiene Law proceedings. Rather, section 33.15 enhances the efficacy of the writ of habeas corpus, as our case law dictates, and thereby ensures that patients are not committed and retained without due process of law. That is, Mental Hygiene Law § 33.15 allows patients to seek a writ of habeas corpus when they are being held pursuant to a court order but, nevertheless, believe they have sufficiently recovered from their mental illness so that their continued retention is unwarranted; in such cases, determining the legality of their retention would require an inquiry into their mental state. On the other hand, patients whose detention is otherwise unauthorized may proceed under the habeas corpus provisions of CPLR article 70 since the legality of their detention can be determined on the basis of, for example, whether the appropriate procedures have been followed, without the need for a hearing into their mental state.  People ex rel. DeLia v Munsey, 2015 NY Slip Op 07697, CtApp 10-22-15

 

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