It has since been held that OSPD (nonconsent) and PNOS (nonconsent) are not generally accepted in the psychiatric and psychological communities and, thus, should not be considered in determining whether a detained sex offender suffers from a mental abnormality (seeMatter of State of New York v. Anthony B., 180 A.D.3d 688, 690, 118 N.Y.S.3d 230 [2020], lv denied 35 N.Y.3d 913, 2020 WL 5176148 [2020] ; Matter of State of New York v. Richard S., 158 A.D.3d 710, 712, 70 N.Y.S.3d 562 [2018] ).
In reviewing a finding made after a nonjury trial, the power of this Court is as broad as that of the trial court, and this Court may render the judgment that it finds warranted by the facts, taking into account that in a close case the trial judge had the advantage of seeing and hearing the witnesses (seeNorthern Westchester Professional Park Assoc. v. Town of Bedford, 60 N.Y.2d 492, 499, 470 N.Y.S.2d 350, 458 N.E.2d 809 ; Matter of State of New York v. Claude McC., 163 A.D.3d 686, 81 N.Y.S.3d 133 ). Here, contrary to the appellant's contention, the State presented clear and convincing evidence that the appellant suffered from a mental abnormality, as it proved that he suffered from several predicate disorders and linked those disorders, in combination, to his predisposition to commit conduct constituting a sex offense (seeMatter of State of New York v. Dennis K., 27 N.Y.3d 718, 743–745, 37 N.Y.S.3d 765, 59 N.E.3d 500 ; Matter of State of New York v. Anthony B., 180 A.D.3d 688, 690–691, 118 N.Y.S.3d 230 ). Further, the State demonstrated that the appellant had serious difficulty in controlling his sexual conduct based upon the interaction of these disorders and other factors, including, among other things, his failure to make meaningful progress in treatment and his commission of prison disciplinary infractions involving lewd behavior and threatening female staff members (seeMatter of State of New York v. Claude McC., 163 A.D.3d at 687, 81 N.Y.S.3d 133 ).
The 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" (§ 10.03 [i] ). Here, viewing the evidence in the light most favorable to respondent (seeMatter of State of New York v. John S. , 23 N.Y.3d 326, 348, 991 N.Y.S.2d 532, 15 N.E.3d 287 [2014] ), we conclude that it is legally sufficient to establish by clear and convincing evidence " ‘the predisposition prong of the mental abnormality test’ " ( Matter of State of New York v. Anthony B. , 180 A.D.3d 688, 691, 118 N.Y.S.3d 230 [2d Dept. 2020] ; see alsoMatter of Vega v. State of New York , 140 A.D.3d 1608, 1608-1609, 34 N.Y.S.3d 810 [4th Dept. 2016] ). Respondent's expert diagnosed petitioner with pedophilic disorder, zoophilia, alcohol use disorder, and cannabis use disorder, which, when viewed in combination, predisposed petitioner to commit sex offenses and were sufficiently connected to his sex offending behavior (seeMatter of State of New York v. Richard TT. , 132 A.D.3d 72, 76-77, 14 N.Y.S.3d 824 [3d Dept. 2015], affd 27 N.Y.3d 718, 37 N.Y.S.3d 765, 59 N.E.3d 500 [2016], cert denied ––– U.S. ––––, 137 S. Ct. 836, 197 L.Ed.2d 75 [2017] ; Matter of State of New York v. Peters , 144 A.D.3d 1654, 1654-1655, 46 N.Y.S.3d 298 [4th Dept. 2016] ).
Considered in the light most favorable to the State (see Matter ofState of New York v. Floyd Y., 30 N.Y.3d 963, 964, 65 N.Y.S.3d 111, 87 N.E.3d 143 ; Matter of State of New York v. John S., 23 N.Y.3d 326, 348, 991 N.Y.S.2d 532, 15 N.E.3d 287 ), the evidence at trial was legally sufficient to establish that the appellant suffers from a mental abnormality within the meaning of Mental Hygiene Law § 10.03(i). The State presented clear and convincing evidence that the appellant has "a congenital or acquired condition, disease or disorder that affects [his] emotional, cognitive, or volitional capacity" in a manner that predisposes him to the commission of conduct constituting a sex offense, and that he has serious difficulty in controlling such conduct ( Mental Hygiene Law § 10.03[i] ; see Matter ofState of New York v. Floyd Y., 30 N.Y.3d at 965, 65 N.Y.S.3d 111, 87 N.E.3d 143 ; Matter of State of New York v. Anthony B., 180 A.D.3d 688, 690–691, 118 N.Y.S.3d 230 ). The appellant's contention that the Supreme Court's determination was contrary to the weight of the evidence is without merit.
The experts were properly permitted to render an opinion on this issue based on hearsay basis evidence of the appellant's admissions (seeMatter of State of New York v. Floyd Y., 22 N.Y.3d at 109, 979 N.Y.S.2d 240, 2 N.E.3d 204 ). The State presented clear and convincing evidence that the appellant suffers from a mental abnormality, as it proved that he suffers from several predicate disorders and linked those disorders, in combination, to his predisposition to commit conduct constituting a sex offense (seeMatter of State of New York v. Dennis K., 27 N.Y.3d 718, 743–745, 37 N.Y.S.3d 765, 59 N.E.3d 500 ; Matter of State of New York v. Benjamin M., 199 A.D.3d at 691, 155 N.Y.S.3d 598 ; Matter of State of New York v. Robert H., 192 A.D.3d 1117, 1118–1119, 141 N.Y.S.3d 355 ; Matter of State of New York v. Anthony B., 180 A.D.3d 688, 690, 118 N.Y.S.3d 230 ). Further, the State demonstrated that the appellant had serious difficulty in controlling his sexual conduct based upon the interaction of these disorders and other factors, including his regression during sex offender treatment, his repeated violations of parole soon after being released, and his commission of a prison disciplinary infraction involving the rape of another inmate (seeMatter of State of New York v. Robert H., 192 A.D.3d at 1119, 141 N.Y.S.3d 355 ; Matter of State of New York v. Claude McC., 163 A.D.3d 686, 687, 81 N.Y.S.3d 133 ).
The State established that petitioner's narcissistic personality disorder (NPD) "manifests with a strong sexual component, and linked [his] NPD diagnosis to his predisposition to commit sex offenses. Thus, ‘the State established by clear and convincing evidence the predisposition prong of the mental abnormality test’ " ( Matter of State of New York v. Anthony B. , 180 A.D.3d 688, 690-691, 118 N.Y.S.3d 230 [2d Dept. 2020] ; see alsoMatter of State of New York v. Horowitz , 176 A.D.3d 1404, 1404-1405, 113 N.Y.S.3d 286 [3d Dept. 2019], lv denied 34 N.Y.3d 913, 2020 WL 1466143 [2020] ). The State also established by clear and convincing evidence that petitioner has "serious difficulty in controlling" his sexual conduct (§ 10.03 [i]; seeJames R.C. , 165 A.D.3d at 1613, 85 N.Y.S.3d 314 ; see generallyMatter of Allan M. v. State of New York , 163 A.D.3d 1493, 1494, 80 N.Y.S.3d 838 [4th Dept. 2018], lv denied 32 N.Y.3d 908, 2018 WL 5932602 [2018] ).
New York courts permit expert testimony based on scientific principles or procedures only after the principle, procedure, or theory has gained general acceptance in the relevant scientific field (seePeople v. Wesley, 83 N.Y.2d 417, 422, 611 N.Y.S.2d 97, 633 N.E.2d 451 ; Frye v. United States, 293 F. 1013 ). Under the Frye standard, the burden of proving general acceptance rests upon the party offering the disputed expert testimony (seeMatter of State of New York v. Anthony B., 180 A.D.3d 688, 689, 118 N.Y.S.3d 230 ; Matter of State of New York v. Richard S., 158 A.D.3d 710, 712, 70 N.Y.S.3d 562 ). The test of reliability is "not whether a particular procedure is unanimously indorsed by the scientific community, but whether it is generally accept[ed] as reliable" ( People v. Middleton, 54 N.Y.2d 42, 49, 444 N.Y.S.2d 581, 429 N.E.2d 100 ).
Respondent's expert further linked those diagnoses to petitioner's predisposition to engage in conduct constituting the commission of sex offenses (seeMatter of State of New York v. Dennis K. , 27 N.Y.3d 718, 744, 37 N.Y.S.3d 765, 59 N.E.3d 500 [2016], cert denied ––– U.S. ––––, 137 S. Ct. 579, 196 L.Ed.2d 452 [2016] ). Thus, viewing the evidence in the light most favorable to respondent (seeMatter of State of New York v. John S. , 23 N.Y.3d 326, 348, 991 N.Y.S.2d 532, 15 N.E.3d 287 [2014] ), we conclude that it is legally sufficient to establish by clear and convincing evidence " ‘the predisposition prong of the mental abnormality test’ " ( Matter of State of New York v. Anthony B. , 180 A.D.3d 688, 691, 118 N.Y.S.3d 230 [2d Dept. 2020], lv denied 35 N.Y.3d 913, 2020 WL 5176148 [2020] ; see generallyMatter of Vega v. State of New York , 140 A.D.3d 1608, 1608-1609, 34 N.Y.S.3d 810 [4th Dept. 2016] ). We reject petitioner's further contention that Supreme Court's determination that he suffers from a mental abnormality is against the weight of the evidence.
Respondent, however, did not request a Frye hearing with respect to that diagnosis. To the extent that respondent contends that the court erred in refusing to hold a Frye hearing with respect to the diagnosis of hebephilia, which respondent did request in his motion, we conclude that, even assuming, arguendo, that the court erred in denying that request, any such error is harmless (seeMatter of State of New York v. Anthony B. , 180 A.D.3d 688, 690, 118 N.Y.S.3d 230 [2d Dept. 2020], lv denied 35 N.Y.3d 913, 2020 WL 5176148 [2020] ; Matter of State of New York v. James N. , 171 A.D.3d 930, 931-932, 95 N.Y.S.3d 563 [2d Dept. 2019], lv denied 33 N.Y.3d 913, 2019 WL 4266093 [2019] ). There is ample evidence in the record, aside from the diagnosis of hebephilia, to support the determination that respondent suffers from a mental abnormality, and we therefore conclude that there is no reasonable possibility that the exclusion of testimony regarding the hebephilia diagnosis would have resulted in a different verdict (see generallyMatter of State of New York v. Charada T. , 23 N.Y.3d 355, 362, 991 N.Y.S.2d 9, 14 N.E.3d 362 [2014] ).
In State v. Dennis K., the Court of Appeals held that the combined diagnoses of ASPD and Borderline Personality Disorder ("BPD") with respect to respondent Anthony N. were sufficient Mental Abnormality predicates because the BPD diagnosis had a "strong sexual component" and resulted in a predisposition to commit sex crimes. 27 N.Y.3d at 743-744, 37 N.Y.S.3d 765, 59 N.E.3d 500. see alsoState v. Anthony B., 180 A.D.3d 688, 690-691, 118 N.Y.S.3d 230 (2nd Dept. 2020) (ASPD plus Narcissistic Personality Disorder ("NPD") sufficient to constitute Mental Abnormality where NPD had a "strong sexual component" and was "linked" to the predisposition to commit sex offenses.)In State v. Timothy R., 168 A.D.3d 146, 151, 89 N.Y.S.3d 678 (2nd Dept. 2018) the Second Department held that in order for an Article 10 diagnosis for an offender with ASPD to be sufficient, the State must prove "another diagnosis that suggests a particular tendency to commit a sex offense as defined by the statute".