Opinion
10925 Index 30140/16
01-30-2020
In re STATE of New York, Petitioner–Appellant, v. GARY K. (Anonymous), Respondent–Respondent.
Letitia James, Attorney General, New York (Amit R. Vora of counsel), for appellant. Marvin Bernstein, Mental Hygiene Legal Service, New York (Sadie Zea Ishee of counsel), for respondent.
Letitia James, Attorney General, New York (Amit R. Vora of counsel), for appellant.
Marvin Bernstein, Mental Hygiene Legal Service, New York (Sadie Zea Ishee of counsel), for respondent.
Richter, J.P., Gische, Mazzarelli, Gesmer, JJ.
Order, Supreme Court, New York County (Daniel P. Conviser, J.), entered August 16, 2018, which, after a nonjury trial, determined that respondent does not suffer from a mental abnormality under Mental Hygiene Law article 10, and bringing up for review a ruling, same court and Justice, dated February 20, 2018, that the diagnosis of unspecified paraphilic disorder is not generally accepted in the relevant community, unanimously reversed, on the law, without costs, the order vacated, and the matter remanded for further proceedings in accordance herewith.
The motion court was constrained to follow the decision of the Second Department in Matter of State of New York v. Hilton C. , 158 A.D.3d 707, 70 N.Y.S.3d 565 (2d Dept. 2018) since, at that time, we had not yet addressed the issue before it (see D'Alessandro v. Carro , 123 A.D.3d 1, 6, 992 N.Y.S.2d 520 [1st Dept. 2014] ). However, in Matter of State of New York v. Jerome A. , 172 A.D.3d 446, 98 N.Y.S.3d 191 (1st Dept. 2019), we rejected the position taken by the Second Department and held that the type of evidence presented at the Frye hearing (see Frye v. United States , 293 F. 1013 [D.C. Cir.1923] ) in that case, such as the evidence that unspecified paraphilic disorder (USPD) was included as a diagnosis in the Diagnostic and Statistical Manual of Mental Disorders (DSM–5), which signals its general acceptance by the psychiatric community, is sufficient to satisfy the State's burden of showing that the USPD diagnosis meets the Frye standard ( 172 A.D.3d at 447, 98 N.Y.S.3d 191 ) (see also Matter of Luis S. v. State of New York , 166 A.D.3d 1550, 1552–1553, 88 N.Y.S.3d 748 [4th Dept. 2018] ). The Frye evidence presented in Jerome A. is identical to the Frye evidence in this case.
Consistent with our decision in Jerome A. , we decline to rule that the instant record establishes conclusively that the USPD diagnosis would have been found unreliable or that its admission at trial would have made no difference to the outcome of the case.
Accordingly, the verdict that respondent does not suffer from a mental abnormality, rendered after an article 10 trial from which USPD evidence was excluded, must be vacated and the matter remanded for further proceedings, including a determination whether the evidence meets the threshold standard of reliability and admissibility (see Jerome A. , 172 A.D.3d at 447, 98 N.Y.S.3d 191 ).