Opinion
Index 20-0443
02-15-2022
In the Matter of the Application of the The State of New York, Petitioner, v. M.M., DIN XXXXXXX, an inmate in the custody of the New York State Department of Corrections and Community Supervision, Respondent, for Civil Management Pursuant to Article 10 of the Mental Hygiene Law.
New York State Office of the Attorney General Attorneys for Petitioner The Capitol By: Joseph A. Muia, Jr., Esq., of Counsel New York State Mental Hygiene Legal Services Attorneys for Respondent By: Matthew Bliss, Esq., of Counsel
New York State Office of the Attorney General
Attorneys for Petitioner
The Capitol
By: Joseph A. Muia, Jr., Esq., of Counsel
New York State Mental Hygiene Legal Services
Attorneys for Respondent
By: Matthew Bliss, Esq., of Counsel
Julian D. Schreibman, J.
This is a proceeding under Article 10 of the Mental Hygiene Law. Respondent M. M. is an individual held by the New York State Department of Corrections and Community Supervision ("DOCCS") following his 2019 conviction for Attempted Sex Abuse in the 1st Degree. As set forth in its petition, the State of New York believes that Respondent is a sex offender requiring civil management. To grant the petition, the Court must find that Respondent is (a) a detained sex offender and (b) that he suffers from a mental abnormality as defined in Article 10. The burden is on the State to prove these elements by clear and convincing evidence. The Court conducted a hearing, virtually via MS Teams, on January 13, 2022 and January 14, 2022. Because the State failed to prove that the Respondent suffers from a mental abnormality, the petition is dismissed.
I. Detained Sex Offender
As a threshold matter, the parties stipulate and agree that Respondent is a detained sex offender within the meaning of Article 10.
II. Mental Abnormality
Our Mental Hygiene Law defines a mental abnormality as "a congenital or acquired condition, disease or disorder that affects the emotional, cognitive or volitional capacity of a person in a manner that predisposes him or her to the commission of conduct constituting a sex offense and that results in that person having serious difficulty in controlling such conduct." MHL § 10.03(i). To determine whether an individual meets this definition requires a multi-step analysis.
Frequently, the analysis required under Article 10 has been misdescribed as requiring, first, proof of a "mental abnormality" followed, second, by proof of a serious difficulty in controlling misconduct. (See, e.g., Pattern Jury Instructions, 8:8, Note B). This is incorrect. An individual cannot be said to have a mental abnormality within the meaning of Article 10 unless and until both prongs of the definition have been satisfied. As has been pointed out by a member of our high court, the term "mental abnormality" is a creature of this statute and not a term used or recognized by the professions of psychology or psychiatry. (Matter of State of New York v Floyd Y., 30 N.Y.3d 963, 973 [2017] (Wilson, J., dissenting) (noting that New York State Psychiatric Association had cautioned that definition of mental abnormality under Article 10 had "no scientific or clinical basis."). Incautious use of this term as a synonym for mental illness is accordingly improper and should be carefully avoided.
A. Respondent's Mental Illness Affects His Emotional, Cognitive and Volitional Capacity
First, the Court must consider whether Respondent suffers from a "condition, disease or disorder" that affects his "emotional, cognitive or volitional capacity." While the courts have set up some specific limitations, the condition need not be a defined mental illness under the Diagnostic and Statistical Manual of Mental Disorders ("DSM"). Also, significantly, the condition need not be a sexually-oriented disorder. (Matter of State of New York v Dennis K., 27 N.Y.3d 718, 743 [2016]).
At the hearing, three mental health professionals testified and submitted reports. The State submitted evidence from Pola Eisenstein-Rosan, Ph.D. and Stuart Kirschner, Ph.D. Respondent submitted evidence from Marc Martinez, Ph.D. The curriculum vitae of all three mental health professionals are in evidence and it is uncontested that each is qualified to give opinion testimony in this matter. All three agree that Respondent suffers from one or more mental illnesses, but they disagree on the correct diagnosis.
Dr. Eisenstein-Rosan provided detailed testimony concerning the Respondent's offense and mental health history. Her testimony was based on a comprehensive records review and a two-hour interview of the Respondent, in which he participated voluntarily. Dr. Eisenstein-Rosan concluded that Respondent met the criteria for four mental illness diagnoses, specifically: (1) schizoaffective disorder, depressive type; (2) other specified personality disorder, antisocial features; (3) unspecified neurodevelopmental disorder; and (4) mild alcohol and mild cannabis use disorders (as to which her diagnosis was provisional).
Dr. Kirschner's evaluation was based on a records review, including the findings of Dr. Eisenstein-Rosan; the Respondent declined the opportunity to participate in an interview with Dr. Kirschner. Dr. Kirschner also concluded that Respondent met the diagnostic criteria for four mental health disorders: (1) schizoaffective disorder, depressive type; (2) antisocial personality disorder; (3) unspecified neuro developmental disorder; and (4) opioid/benzodiazepine/ alcohol/cannabis use disorder (in a controlled environment). While Dr. Kirschner's diagnoses were not precisely identical to Dr. Eisenstein-Rosan's, overall the Court found Dr. Kirschner's testimony to be largely regurgitative of Dr. Eisenstein-Rosan's evaluation. Moreover, while Dr. Eisenstein-Rosan's analysis presented as nuanced, Dr. Kirschner seemed principally to pluck out and emphasize the elements of her analysis that were most detrimental to the Respondent. Given his experience, the Court will not disregard Dr. Kirschner's assessment, but it accords it very little evidentiary weight.
Dr. Martinez, a court-appointed evaluator, conducted a clinical interview and psychological testing of Respondent, comprising approximately 7.5 hours spread over two days. Dr. Martinez also reviewed records and conducted collateral interviews. Dr. Martinez concluded that Respondent met the diagnostic criteria of three mental health disorders: (1) antisocial personality disorder (with paranoid traits); (2) bipolar II disorder; and (3) alcohol use disorder, mild, in a controlled environment.
The most significant point of disagreement among the professionals was whether Respondent suffered from schizoaffective disorder or bipolar II disorder. The second important distinction was the inclusion of a neurodevelopmental disorder by Drs. Eisenstein-Rosan and Kirschner, which diagnosis Dr. Martinez did not make.
The State is not required to prove a specific diagnosis. Either schizoaffective disorder or bipolar II disorder would plainly suffice. Accordingly, the Court concludes that it is unnecessary to resolve the diagnostic disagreements. Indeed, Respondent's medical history is replete with uncertainty about the precise label to apply to his conditions. Prior diagnoses have included bipolar disorder and major depressive disorder. What is clear, therefore, is that the Respondent suffers from one or more mental illnesses. He has been under mental health care, inconsistently, for more than two decades. He has received in-patient care on half a dozen occasions. He reports long-term auditory hallucinations-although there is no evidence he acts on them and Dr. Martinez questions their clinical significance. Respondent has been prescribed multiple psychiatric medications over the years. In addition, Respondent's medical history suggests congenital problems that were manifested in the developmental delays that repeatedly impacted his truncated formal schooling. Accordingly, the Court finds that the record contains clear and convincing evidence that the Respondent suffers from at least one mental health "condition, disease or disorder."
This does not mean that any diagnosis will be sufficient on the facts of a particular case nor is it in derogation of our high court's determination that a diagnosis of antisocial personality disorder, standing alone, is legally insufficient to make a finding of mental abnormality. (Matter of State of New York v Donald DD, 24 N.Y.3d 174, 190 [2014]).
The next inquiry is whether such conditions affect Respondent's "emotional, cognitive or volitional capacity." The evidence similarly confirms that they do. As summarized by Dr. Eisenstein-Rosan:
The respondent's history is replete with impulsive acts. His sex offenses appear to be largely impulsive and/or opportunistic. He has never held a job for a long period of time. He has always failed at community supervision. He has committed petty crimes to pay for drugs. He has led a marginal existence, mostly financially supported by his family and this allowed him to remain impulsive and immature. Of note, during the interview for the SOTNA, "He reported he gave no consideration for his probation conditions and justified ongoing engagement with young girls 'because I wanted to.' He stated, 'I just don't think.'" He reported some of the same phrasing in the current evaluation, often saying, "I don't know" when asked why he did things.(Pet.Ex.4, p.33). It is plain that Respondent's behavioral problems, both criminal and non-criminal, are rooted in his mental health struggles. Accordingly, the Court finds, by clear and convincing evidence, that Respondent's conditions affect his emotional, cognitive or volitional capacity.
B. The State Has Failed to Prove that Respondent's Mental Health Conditions Predispose Him to Commit Sex Offenses
It is insufficient for a Respondent's mental illness to impair his volitional capacity generally. Rather, the impairment must specifically predispose him to commit sex offenses. It is at this point that the State's evidence fails.
As a starting point, the Court agrees with Dr. Martinez that the Court should first consider whether the Respondent's conditions themselves indicate such a predisposition, without regard to his prior behavior. Significantly, none of the experts diagnose Respondent with a sexually-focused mental illness. While such a diagnosis is not required, the absence of such a diagnosis requires the Court to be particularly attentive to ensuring that there is a proven, causal link between the individual's mental health conditions and sexual misbehavior. It is affirmatively not the case that persons diagnosed with bipolar II disorder, schizoaffective disorder or neurodevelopmental disorders are thereby predisposed to commit sex crimes. It is, however, appropriate to next consider whether the manifestation of such disorders in this particular Respondent predispose him to commit sex offenses.
"Sex offense" is a defined term under the MHL; it does not refer to every incident of criminal conduct that may involve sexual desire or gratification. With a few exceptions not relevant here, "sex offenses" for purposes of Article 10 are limited to sexual felonies. MHL 10.03(p). The State must prove, by clear and convincing evidence, that Respondent has a disposition to commit such felonies.
The Respondent has a lengthy history of committing offenses that have a sexual component, mostly in the form of what might be generally categorized as sexual harassment. In particular, Respondent has a history of grabbing or swatting the buttocks of teenage girls, through their clothing, in public places. Respondent's sexual misconduct resulted in several misdemeanor charges being filed against him over the years. The Court has reviewed the details of the conduct as set forth in the Petition and the reports of the medical experts and it appears that the misdemeanor charges accurately fit the alleged conduct-as opposed, for example, to reflecting plea bargaining notwithstanding more serious offense conduct. Respondent's qualifying offense largely involved similar conduct to that in his criminal history but was rendered a felony by virtue of the age difference between himself and the victim.
The Court again agrees with Dr. Martinez' analytical framework, to wit, that it is insufficient simply to look at the nature of a person's arrest record which, in this case, is tilted toward sexual misconduct. Rather, it is important to bear in mind that an individual's mental illness-induced impulsiveness may be revealed in non-criminal settings. For example, Dr. Martinez points to Respondent's schooling history, which is replete with non-sexual misbehavior that was likely grounded in his mental illness. Although insightful, however, this information is not legally determinative. The law does not state that an individual must be predisposed solely to commit sex offenses. Rather, it appears to this Court sufficient if the Respondent's predispositions regularly encompass sex offenses.
The State's evidence has established that the Respondent, despite himself being a victim of years' long childhood sexual abuse and despite suffering from serious mental illnesses since his teenage years, has committed exactly one sex offense in his lifetime. Combined with the fact that none of the experts have diagnosed him with a sexual disorder, the State's evidence falls far short of establishing by clear and convincing evidence that the Respondent is predisposed to commit sex offenses. Moreover, there is nothing in the evidence to suggest that the nature of his behavior has been escalating. Indeed, by effectively proving that the Respondent is predisposed to commit sexual misdemeanors, the State has essentially established that the Respondent has the volitional capacity to refrain from committing the more serious offenses encompassed by Article 10.
In their reports, both Dr. Eisenstein-Rosan and Dr. Kirschner refer to Respondent's prior misdemeanors as "sex offenses." For purposes of Article 10, they are not. While in another setting it might be entirely understandable to conceive of Respondent's offenses as such, it is problematic for the State's witnesses to use a legally defined term to mean something other than its legal definition. Dr. Martinez' report uses the term "sexual offense," which, while not technically the same as the statute, gives rise to the same potential for confusion.
In light of the Court's conclusion that Respondent does not have a condition, disease or disorder that predisposes him to commit sex offenses, it is unnecessary to consider the final question of whether he has serious difficulty in refraining from such misconduct.
Based on the foregoing, it is hereby
ORDERED that the petition is DISMISSED.
This shall constitute the Decision and Order of the Court. The original Order is being delivered to the Supreme Court Clerk for transmission to the Greene County Clerk for filing. The signing of this Order shall not constitute entry or filing under CPLR §2220. Counsel is not relieved from the applicable provisions of that rule regarding notice of entry.
SO ORDERED.