Opinion
5188/2016
10-15-2017
In the Matter of the Application of the State of New York, Petitioner, v. Frederick M., Respondent, For Civil Management Pursuant to Article 10 of the Mental Hygiene Law.
For the petitioner: Jeffrey Jackson, Esq. Office of the Attorney General 120 Broadway New York, New York 10271 For the respondent: Alison Kuhlman, Esq. Mental Hygiene Legal Service One Metrotech Center North, 3rd Floor Brooklyn, New York 11201
For the petitioner: Jeffrey Jackson, Esq. Office of the Attorney General 120 Broadway New York, New York 10271 For the respondent: Alison Kuhlman, Esq. Mental Hygiene Legal Service One Metrotech Center North, 3rd Floor Brooklyn, New York 11201 Dineen A. Riviezzo, J.
Issue Presented
In this proceeding under Article 10 of the Mental Hygiene Law, the respondent, Frederick M., moved by motion, dated May 19, 2017, for an order precluding testimony at trial concerning portions of the diagnoses that form the basis of the Petition for Civil Management filed by the State of New York ("the State") on March 16, 2016. Specifically, respondent moves to preclude the testimony of the State's expert, Dr. Hannah Geller, in its entirety asserting 1) that the diagnosis of other specified paraphilic disorder (non-consent) ("OSPD (nonconsent)"), contained in the Diagnostic and Statistical Manual, Fifth Edition, ("DSM-V"), is not generally accepted by the relevant scientific community under Frye v United States (293 F 1013, 54 App DC 46 [DC Cir 1923]); and 2) that the remaining diagnoses which were "considered but not assigned" must be precluded because they cannot be testified to "with an acceptable level of scientific certainty" to be admissible at trial. Lastly, respondent moves to preclude the State's experts from testifying about the diagnosis of unspecified paraphilic disorder (USPD) or in the alternative asks this court to grant a Frye hearing (Id.).
The State, in a four-page response, asserts that it will not offer into evidence testimony concerning the diagnosis of OSPD (nonconsent). Petitioner further states that "respondent's motion to preclude diagnoses considered but not assigned should be denied as moot as petitioner will not offer testimony regarding such conditions" (State's Response at 4). Finally, the State asserts that unspecified paraphilic disorder (USPD) is generally accepted in the psychiatric community citing People v. Harris, 48 Misc 3d 950 (2015 Bronx County Supreme Court, [Gross, J.]). The State also makes reference to two additional cases — Kareem M. and State v. Hilton Cohen — in support of its position that USPD is generally accepted, but provides no citations or other references.
In reply, respondent asserts that antisocial personality disorder (ASPD) is the only diagnosis remaining as part of Dr. Geller's examination and that that diagnosis alone is an insufficient to form the basis of a mental abnormality pursuant to Matter of Donald DD, 24 NY3d 174 (2014). Accordingly, respondent argues that Dr. Geller's testimony must be precluded in its entirety.
For the reasons discussed below, the Court grants that part of respondent's motion to preclude testimony concerning the diagnosis of OSPD (nonconsent). On account of the State's concession, the Court grants that portion of respondent's motion to preclude testimony of diagnoses or conditions that are "considered but not assigned". However, the Court denies the remainder of respondent's motion in its entirety.
The State's Experts' Diagnoses of Respondent Frederick M .
According to the petition, respondent's qualifying offenses are three separate incidents, two in Brooklyn and one in Queens, involving the sexual assault of three female strangers in empty subway trains. Respondent was convicted and sentenced in October and November of 1991 to one term of ten to twenty years in prison and another term of eleven to twenty-two years in prison, each term to run concurrent with the other.
On December 20, 1989, while on the F train in Kings County, respondent, then aged 26, grabbed a female, tore off her stockings and underwear, threw her down on the subway floor face down and forced his penis inside her vagina while he slapped her and stood on her legs. The victim was able to escape when respondent looked out the subway windows in a station. Three weeks later, on January 10, 1990, respondent again approached a female in Kings County on the F train, placed her in a choke hold, and stole her jewelry and money. He fondled her vagina through her clothes, attempted to kiss her, and punched her in the face when she struggled. After the victim grabbed respondent' groin and scratched his face, respondent bit her on the hand and fled. Approximately one month later, on February 16, 1990, while on the F train in Queens County, respondent struck a third female in the face, placed a knife to her neck, and threatened to cut her. He ripped her blouse, fondled her breasts, inserted his finger in her vagina and forced his erect penis into her mouth. The victim managed to escape and run to the conductor. Respondent was arrested and later charged with the previous offenses.
Respondent's prior criminal history dates back to 1980 with youthful offender adjudications at the age of 16 for offenses involving sexual abuse in the third degree and petit larceny. In two separate incidents in February and March of 1981, respondent, then aged 17, robbed two females on the M train. In the March 1981 incident, the victim was only 13 years old and the respondent ripped the victim's blouse, grabbed her breasts, ripped victim's pants and underwear and grabbed her vagina. For these two 1981 offenses, respondent pleaded guilty to robbery in the second degree and sexual abuse in the first degree and was sentenced to three to nine years and twenty-eight months to seven years, respectively.
On February 29, 1980, respondent grabbed a 14-year-old inside of a subway station, threatened that he had a knife, forced her to kneel down, rubbed his penis against her buttocks and grabbed her breasts and vagina. Respondent was not arrested for these acts until July 31, 1981 and was convicted after trial on September 27, 1983 of sexual abuse in the first degree and robbery in the third degree and sentenced to sixteen months to four years incarceration. As part of the Petition, the State included the evaluation of Dr. Hannah Geller who interviewed the respondent for four hours and ten minutes on February 29, 2016, and opined in a written report, dated March 9, 2016, that respondent suffers from antisocial personality disorder ("ASPD") and other specified paraphilic disorder (nonconsent)("OSPD (nonconsent)"), also known as paraphilic coercive disorder. She considered but did not assign two other diagnoses: borderline personality disorder and posttraumatic stress disorder.
Dr. Stuart Kirschner is the State's court appointed examiner. Respondent refused to be interviewed by Dr. Kirschner. In a written report dated February 5, 2017, Dr. Kirschner opined that respondent suffered from unspecified paraphilic disorder ("USPD"); antisocial personality disorder; avoidant personality disorder; other specified disruptive, impulse control and conduct disorder (recurrent behavioral outbursts of insufficient frequency to meet the full criteria intermittent explosive disorder).
Dr. Leonard Bard is the respondent's court appointed examiner. After interviewing respondent for approximately two hours and fifteen minutes and reviewing the relevant documents regularly supplied in Article 10 proceedings, he opined that respondent does not meet the criteria for any psychiatric disorder at this time and does not, therefore, have a mental abnormality.
Discussion
Frye Hearing: Elements and Burden of Proof
In general, the inquiry under Frye is "whether the accepted techniques, when properly performed, generate results accepted as reliable within the scientific community generally" (People v Wesley, 83 NY2d 417, 422, 611 NYS 2d 97, 633 NE 2d 451 [1994]). The burden of proving general acceptance in the relevant scientific community rests upon the proponent of the disputed testimony (See Zito v Zabarsky, 28 AD3d 42, 812 NYS 2d 535 [2d Dept 2006]; People v Kanani, 272 AD2d 186, 709 NYS 2d 505 [1st Dept 2000], lv denied 95 NY2d 935, 744 NE 2d 148, 721 NYS 2d 612 [2000]). Admissibility under Frye requires a showing that:
1) the expert is competent in the field of expertise which he or she purports to address at trial. This element is not disputed in this case;
2) the testimony is based on scientific principles or procedures which have been sufficiently established to have gained general acceptance in the particular field involved. In this regard, the hearing court does not determine whether or not a novel scientific theory is reliable, but only whether it is generally accepted in the relevant scientific community. The emphasis is on "counting scientists' votes" ( Wesley, 83 NY2d at 439 [Kaye, Ch. J., concurring]).
3) the proffered expert testimony is "beyond the ken" of the jury (See Matott v Ward, 48 NY2d 455, 459, 399 NE 2d 532, 423 NYS 2d 645 [1979]; People v Cronin, 60 NY2d 430, 433, 458 NE 2d 351, 470 NYS 2d 110 [1983]). It is not disputed by the parties, and it is evident, that the subject of a DSM diagnosis is beyond the ken of the ordinary person; and,
4) the testimony is relevant to the issues and facts of the individual case, and more probative than prejudicial. Evidence is relevant if it has any tendency in reason to prove the existence of any material fact, i.e., if it makes determination of the action more probable or less probable than it would be without the evidence. However, even if relevant, the probative value must outweigh the prejudice to the other side. A trial court may exercise its discretion and preclude "technically relevant" evidence "if its probative value is substantially outweighed by the danger that it will unfairly prejudice the other side or mislead the jury" ( People v Scarola, 71 NY2d 769, 777, 525 NE 2d 728, 530 NYS 2d 83 [1988]).
In engaging in a Frye analysis, the court may consider scholarly articles on the subject matter for the purpose of understanding "general acceptance." Because Frye is concerned with "head counting" of experts, the state of knowledge in the profession is at issue and scholarly articles and journals are, therefore, admissible as reflecting those matters which are generally accepted in the relevant scientific community (See, e.g., People v Wernick, 215 AD2d 50, 52, 632 NYS 2d 839 [2d Dept. 1995], affd 89 NY2d 111, 651 NYS 2d 392, 674 NE 2d 322 [1996]; Fraser v 301-52 Townhouse Corp., 57 AD3d 416, 870 NYS 2d 266 (1st Dept 2008).
Further, the Court of Appeals has ruled that:
A court need not hold a Frye hearing where it can rely upon previous rulings in other court proceedings as an aid in determining the admissibility of the proffered testimony. Once a scientific procedure has been proved reliable, a Frye inquiry need not be conducted each time such evidence is offered [and courts] may take judicial notice of reliability of the general procedure. People v. LeGrand, 8 NY3d 449,458 (2007)(internal citations omitted).
OSPD (nonconsent)
This Court held an extensive Frye hearing on the diagnosis of OSPD (nonconsent), at which six experts were called to testify. The Court concluded, in a published opinion, that the general diagnosis of "Other Specified Paraphilic Disorder" (OSPD) contained within the DSM-V is a generally accepted diagnosis in the relevant scientific community (Matter of State v. Jason C., 51 Misc 3d 553 [2016]). However, as to the specifier, "non-consent," this Court held that the State had not met its burden to prove under Frye that the specific diagnosis of OSPD (non-consent) is generally accepted in the relevant scientific community (Id.) This Court is aware of three additional trial courts who have reached the same conclusions after conducting Frye hearings. (See Matter of State v. Kareem M., 51 Misc 3d 1205 (a) (Supreme Court, New York County , 2016 [Conviser, J.]); Matter of State v. Smalls, Unreported Decision SP No.180/2012 (Supreme Court, Queens County, February 17, 2017 [Holder, J.]); Matter of State v Donald G., 2017 NY Misc LEXIS 2704 (Supreme Court, Cayuga County, June 28, 2017).
Accordingly, as the State concedes, the State is precluded from eliciting at trial testimony concerning the diagnosis of paraphilic coercive disorder or OSPD (nonconsent). USPD
As to the diagnosis of unspecified paraphilic disorder (USPD), respondent argues that the diagnosis of USPD, although contained in the DSM-V, is an unreliable diagnosis that has not been accepted by the relevant scientific community. Specifically, respondent argues that there is no scientific literature that supports the use of this diagnosis in a forensic setting, no consensus on its reliability as a diagnosis, and that the diagnosis is too imprecise to offer a basis for civil confinement.This Court rejects these arguments, denies respondent's motion to preclude the State from eliciting testimony concerning this diagnosis, and further denies respondent's request for a Frye hearing. First, this Court is persuaded by the opinions of two other trial judges who both conducted Frye hearings on this specific diagnosis and found it to be generally accepted in the relevant scientific community (See Matter of State v. Harris., 48 Misc 3d 950 (Bronx County Supreme Court, April 27, 2015 Gross J.) rev'd on other grounds, Matter of State v Howard H., 2017 NY App Div LEXIS 5222 (June 29, 2017); Matter of State v. Hilton C., SP#00005X-2014 (Supreme Court, Nassau County March 10, 2017 Corrigan, J.).
As evidenced by these decisions and the portions of the transcripts of these two Frye hearings submitted by the respondent as appendices to this motion, this Court rejects respondent's contention that those Frye hearings did not address whether USPD is generally accepted within the forensic setting as opposed to the clinical setting.
Second, this Court refers to its own factual findings in both Matter of State v. Jason C., 51 Misc 3d 553 (2016), referenced above, and Matter of State v. Mercado, 2015 NY Misc LEXIS 4018, 2015 NY Slip Op 25367, 19 NYS3d 658 [Sup Ct, Kings County, August 11, 2015]). In the Mercado case, this Court presided over another Frye hearing in which this Court also concluded that the DSM-V diagnosis of "Other Specified Paraphilic Disorder," formerly called paraphilia, not otherwise specified in DSM-IV-TR (a previous edition of the DSM-V) is generally accepted in the relevant psychological community. While in neither Frye hearing did this Court specifically hold that the diagnosis of USPD was generally accepted, this Court received extensive testimony from numerous experts during both hearings about unspecified paraphilic disorder, or USPD, in conjunction with the testimony concerning other specified paraphilic disorder or OSPD. Some of the relevant factual findings from this Court's published decision in Mercado are summarized here in support of this Court's conclusions.
As it did in Jason C., this Court found in Mercado, that while OSPD was generally accepted, the specifier that accompanied that diagnosis was not. In Mercado, the specifier was "sexual attraction to female teenagers."
In Jason C. the Court heard from six experts. The State called, Dr. Robin Wilson, Dr. Christopher Kunkle and Dr. David Thornton. The respondent called Dr. Leonard Bard, Dr. Raymond Knight and Dr. Cynthia Calkins. In Mercado, the State called the same three experts and the respondent, in addition to Dr. Cynthia Calkins, also called Dr. Allen Francis and Dr. Karen Franklin. --------
In both Frye hearings, there was extensive testimony concerning the years-long process by which the DSM-V was drafted and eventually published in 2013. This process involved working groups of respected psychiatrists and psychologists and periods of public comments on a website for input by the psychological community. This vetting process occurred until the Board of the American Psychiatric Association reached a consensus about the changes. As this Court stated in Mercado, it was clear that in the opinion of all the testifying experts (except for one) that the diagnoses that are included in the DSM-V are, in general, considered valid and reliable diagnoses.Because there is a clear understanding that not every diagnosable disorder is contained within the DSM-V, each chapter contains two "catch-all" diagnoses meant to be used to explain conditions or disorders that fall under the general category of that chapter but do not fit specific criteria for the diagnoses mentioned within the chapter. These two catch-all diagnoses in the DSM-V are "Other Specified Disorder" and "Unspecified Disorder." Under the DSM-IV- TR there was only one catch-all diagnosis, "Not Otherwise Specified" or "NOS."
At issue here, as in Mercado and Jason C., is the chapter on paraphilic disorder which is defined in the DSM-V as an intense and persistent sexual interest in something other than normophilic sexual interest that causes distress or impairment to the individual or causes harm to others. Within the chapter on paraphilic disorders, the DSM-V contains criteria for only eight specifically named paraphilic disorders such as pedophilic disorder, exhibitionistic disorder and sexual sadism disorder. However, the prefatory language in the paraphilas' chapter of the DSM-V acknowledges that there are dozens of other potential paraphilic conditions (DSM-V at 685).
Applying those "catch-all" provisions to the chapter on paraphilic disorders, the diagnoses would be entitled, "other specified paraphilic disorder" and "unspecified paraphilic disorder". In the DSM-IV-TR, the diagnosis is called "paraphilia, NOS." Other specified paraphilic disorder is a diagnosis given when there are indications that an individual meets the general overall diagnostic criteria for a paraphila that is not one of the eight enumerated disorders, however, there is literature or research which can be pointed to that can supply a specific diagnostic name. In other words, the specific diagnosis might be one that is not common enough to have warranted a description in the DSM, but the presentation is such that it is seen in clinical practices and has been researched (Id.) The DSM lists various examples of other specified paraphilic disorders such as necrophilia (dead persons), telephone scatophilia (making obsence phone calls), partialism (attraction to body parts, ie. — hands and feet) and zoophilia (animals) (Mercado, 2015 NY Misc LEXIS 4018, 2015 NY Slip Op 25367, 19 NYS3d 658 [Sup Ct, Kings County, August 11, 2015]) .
While recognizing that USPD was not at issue in Mercado, this Court nevertheless found that unspecified paraphilic disorder is used when a patient clearly has a paraphilia, however, there is no specifier that would attach to the general category. This Court specifically rejected in Mercado and Jason C. the argument that these diagnoses were "wastebasket categories" that could "(n)ever achieve a level of reliability that would allow for them to be meaningful as expert testimony in legal cases - in any context - not just SVP proceedings" (Matter of State v. Jason C., 51 Misc 3d 553 (2016), referenced above, and Matter of State v. Mercado, 2015 NY Misc LEXIS 4018, 2015 NY Slip Op 25367, 19 NYS3d 658 [Sup Ct, Kings County, August 11, 2015]).Rather, this Court noted that with regard to these "catch-all" diagnoses, the DSM-V makesclear that they are legitimate, indeed, necessary diagnoses. The DSM-V, in fact, instructs in its prefatory chapter that:
When full criteria are not met, clinicians should consider whether the symptoms presentation meets criteria for an 'other specified' or 'unspecified' designation.(American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders at 21 [5th Edition 2013]). Within the chapter on paraphilic disorders, the DSM-V authors confirm that while only eight specific paraphilic disorders are listed with criteria in the DSM-V:
Many dozens of distinct paraphilias have been identified and named, and almost any of them could, by virtue of its negative consequences for the individual or for others, rise to the level of a paraphilic disorder. The diagnoses of other specified and unspecified paraphilic disorders are therefore indispensable and will be required in many cases.
(Id. at 685). Indeed, even respondent's current expert, Dr. Bard, who testified before this Court at the Frey hearing in Mercado, testified there that not otherwise specified and other specified disorders are categories that are useful in clinical practice, especially in the context of paraphilias where it is used with the "lesser or rarely seen paraphilias" along with a specifier (Matter of State v. Mercado, 2015 NY Misc LEXIS 4018, 2015 NY Slip Op 25367, 19 NYS3d 658 [Sup Ct, Kings County, August 11, 2015])(Bard tr at 381-382).
Because this Court has heard extensive testimony on this issue, and two other judges conducted extensive Frye hearings directly on this topic, this Court is convinced that relying upon prior judicial decisions to establish general scientific acceptance is not a "hollow ritual" because the issue of the scientific acceptance of USPD has been adequately litigated (Donaldson v. Central Illinois Public Service Co., 199 Ill 2d 63; 767 NE 2d 314; 2002 Ill LEXIS 283 [2002]). As to respondent's remaining contentions concerning the use of USPD, the Court finds these are issues of weight and not admissibility. Preclusion of Dr . Hannah Geller's testimony
While respondent appears to be correct in his contention that, given the State's concessions, the only relevant diagnosis remaining in Dr. Geller's report is ASPD, this fact does not compel preclusion. While the Court of Appeals has held in Donald DD that ASPD alone cannot form the basis for a finding of mental abnormality, the State is still entitled to call Dr. Geller to corroborate Dr. Kirschner's finding of ASPD (Matter of State of New York v Donald DD. & Kenneth T., 24 NY3d 174, 996 N.Y.S.2d 610, 21 N.E.3d 239 (2014) ("Donald DD. & Kenneth T."). Further, the State is also entitled to present more than one witness who, together, could arguably testify about a "combination" of conditions, diseases or disorders that could convince a fact finder that respondent suffers from a mental abnormality (Matter of the State of New York v. Dennis K. & Anthony N. & Richard TT., 27 NY3d 718, 727 (2016)). Conclusion
Respondent's motion is granted in part and denied in part.
This constitutes the decision and order of the court. SO ORDERED: October 15, 2017 Hon. Dineen Ann Riviezzo