Opinion
SMZ No. 71436/2021
08-15-2024
In the Matter of the Application of The State of New York, Petitioner, v. Jeremiah D., Respondent, For Commitment Under Article 10 of the Mental Hygiene Law.
New York State Attorney General Letitia James (Jeffrey Jackson and Elizabeth Prael, of counsel) for the Petitioner. Mental Hygiene Legal Services First Judicial Department (Jessica Botticelli, of counsel) for the Respondent.
Unpublished Opinion
New York State Attorney General Letitia James (Jeffrey Jackson and Elizabeth Prael, of counsel) for the Petitioner.
Mental Hygiene Legal Services First Judicial Department (Jessica Botticelli, of counsel) for the Respondent.
Daniel Conviser, J.
In State v. Donald DD. & Kenneth T., 24 N.Y.3d 174 (2014) the Court's four judge majority held that "evidence that a respondent suffers from antisocial personality disorder cannot be used to support a finding that he has a mental abnormality [under Article 10 of the Mental Hygiene Law ("Article 10")]... when it is not accompanied by any other diagnosis of mental abnormality." 24 N.Y.3d at 177. From almost the moment it was announced, courts began to dramatically scale back the sweeping parameters of the decision, finding that a wide range of not only diagnoses but many other descriptors were sufficient, along with Antisocial Personality Disorder ("ASPD"), to constitute valid diagnostic predicates under Article 10.
A "Mental Abnormality" is not a diagnosis or a psychiatric term. It is the legal standard which defines which offenders may be subject to Article 10. See discussion infra.
If Donald DD. continues to mean anything, however, it means that the Respondent in this case cannot be subject to sex offender civil management. In this case, the only diagnoses, conditions or descriptors the court credited were ASPD with "psychopathic traits" [ not psychopathy]. These conditions are not sufficient to constitute a "condition, disease or disorder" under Article 10. Mr. D. is" the dangerous but typical recidivist convicted in an ordinary criminal case." Donald DD., 24 N.Y.3d at 189.
STATEMENT OF FACTS
The court conducted a virtual bench trial with the consent of the parties. Dr. Pola Eisenstein-Rosan and Dr. Stuart Kirschner testified for the State and both opined Mr. D. had a Mental Abnormality under Article 10. Dr. John Shields testified for the Respondent and opined Mr. D. did not have a Mental Abnormality. Mr. D. was born on June 10, 1991 and so is 33 years old.
Testimony of the Expert Witnesses
Dr. Eisenstein-Rosan is a psychologist employed by the New York State Office of Mental Health ("OMH"). In about 167 initial examinations to determine if a respondent had a Mental Abnormality, she found a Mental Abnormality about 45% of the time. She interviewed Mr. D. by video on January 19, 2021 for 5 hours and 22 minutes. She diagnosed him with ASPD. Mr. D. declined to be interviewed by Dr. Kirschner and he conducted his analysis through a record review. Dr. John Shields testified on behalf of the Respondent and opined that Mr. D. did not have a Mental Abnormality. He interviewed Mr. D. on August 31, 2022, in May of 2023 and in September of 2023. He testified that Mr. D. had a consistently calm and pleasant demeanor. He said Mr. D. did not manifest as having any psychiatric issues and "seemed like a fairly well adjusted adequately functioning young man". Transcript, p. 13. Dr. Shields testified that he had conducted about 20 Article 10 evaluations and found a respondent had a Mental Abnormality about half the time.
Mr. D.'s Criminal History
Dr. Eisenstein-Rosan said that Mr. D. was first arrested at age 16 for Forcible Touching and Sexual Abuse in the Third Degree for a crime which occurred on May 1, 2008 in the subway. Those charges were later dismissed on speedy trial grounds. Mr. D. discussed this offense in his written homework from the Prison Based Sex Offender Treatment Program (the "PBSOTP"). He said he was flirting, put his hands on the victim's mid-back and slid his hand down to her buttocks. The victim screamed and he was arrested. He said he was feeling stressful at the time, that no one loved him and that he needed to fulfill his needs and feel wanted. He said he wanted to have sex with the victim. He said words to the effect that if he wanted something he should have it. He reported that he had made a bet with his friends to do it.Dr. Kirschner described Mr. D.'s report of this incident in a completely different manner. He said Mr. D. reported he was talking to three people, two of whom were females, and that he felt one was disrespecting him and kicked her in the buttocks.
About one month later, while still 16-years-old, Mr. D. committed his second sexual offense. This offense was also dismissed on speedy trial grounds. In that case he was charged with Criminal Possession of a Weapon in the Third Degree, Forcible Touching, Attempted Sexual Abuse in the Third Degree and Public Lewdness for an incident on the subway. He reported that he had been wearing baggy pants with a pocketknife. He said the police didn't like his pants and thought he was too close to other people. Dr. Eisenstein-Rosan said Mr. D. had smacked the victim on her butt. Dr. Kirschner again described the incident differently. He testified that Mr. D. was arrested by an undercover police officer after he flirted with the victim in a subway station and put his hands down to the victim's buttocks.
Dr. Shields said Mr. D. told him the first victim was in her 30's and that his actions were impulsive. Mr. D. said he slapped the woman on the butt, thought it would be exciting and thought the woman would laugh. In the second charged crime, Mr. D. reported that he smacked a woman on the butt and had a knife he used working in construction. Dr. Eisenstein-Rosan said that in many cases teenagers will commit one sexual offense and then stop. However, if offenses continue, and the person offends while an adult, the younger the offender was when committing the first offense, the greater the risk of re-offending will be. The fact that Mr. D. was arrested for his second sexual offense a month after being arrested for the first one demonstrated antisociality and the fact that the first arrest didn't matter to him.
Six months after his second sexual offense he was arrested at age 17 for a robbery in which he left a group home, said he needed money for food, snatched a purse, obtained hundreds of dollars and used what appeared to be a firearm. He threatened to shoot the victim although there was no evidence he had a gun. He pled guilty to Attempted Robbery in the First Degree and was sentenced to 3 ½ years in prison on April 13, 2009. He was released to post-release supervision on November 16, 2011 when he was about 20 years old. He received no sexual-related disciplinary infractions in prison. He was released to a shelter, then a group home and was sent to barber school and a GED program.
After being on parole for 4 months, he committed another sexual offense on March 13, 2012. He was arrested on March 19th for Forcible Touching, Sexual Abuse in the Third Degree and Harassment in the Second Degree. He pled guilty to Attempted Assault in the Third Degree [a non-sexual offense misdemeanor] and received a jail sentence of 90 days consecutive to a sentence of one year for a violation of his post-release supervision.
In that case, Mr. D. was reported to have followed a woman walking to the subway and talked to her. The woman went into a store and he followed. He offered to buy her anything. He was reported to have denied that he said: "it is small world, I'll see you again". Id., p. 43. He followed her to the subway platform, tried to hug her and was pushed away. He then hugged her and grabbed her buttocks. She got on to the train and he did not follow. Mr. D. did not previously know the victim. Dr. Eisenstein-Rosan said that Mr. D. committed this offense while under supervision, in public view with a victim who did not want contact with him and that this demonstrated antisociality. The fact that this offense happened so quickly after Mr. D.'s earlier release from prison demonstrated his strong push to engage in offending. Mr. D. had an on-and-off sexual relationship with a teenage girl who became pregnant and had an abortion but it is not clear whether that relationship was ongoing at the time of this offense.
Dr. Eisenstein-Rosan testified that Mr. D. has said various things about this incident. He has denied offending but said he was attracted to the woman, spoke to her and that she was rude. He also reported at one point that he smacked her butt, that he had kicked her butt and that he was clowning with his friends. He reported that the victim was both age 16 and in her 20's. Mr. D. did not take responsibility for this offense. Dr. Eisenstein-Rosan opined that "once he [Mr. D.] is set on his path, he kind of goes - it is automatic. He is just going to do what he does until something stops him in his tracks." Id. p. 47. She described Mr. D's actions as stalking and said he did not react to normal hints like the fact that the victim apparently indicated she did not want to have contact with him. Mr. D. told Dr Shields that he had felt disrespected by the victim, grabbed her butt and made a stupid decision.
His next offense occurred when he was off parole for 7 months and was 24 years old. The crime occurred in June of 2015 and he was arrested for it on January 20, 2016. He was arrested for Rape in the First Degree, Sexual Abuse in the First Degree, Strangulation in the Second Degree, Assault in the Third Degree and Criminal Obstruction of Breathing and Blood Circulation. He was convicted by guilty plea on June 18, 2016 of two counts of Forcible Touching, one for this offense and one for a second offense occurring later, his 4th and 5th offenses.
In the first of these two offenses, he encountered a woman sleeping on the subway, flirted with her, followed her to her building and was very friendly. He said good-bye at the building, chastised the victim for not hugging him and followed her into the building stairs. He fondled her legs and buttocks. She told him to stop and pushed him away. He pulled her shirt down, exposing her breasts and fondled them. She tried to fight him off and he choked her to unconsciousness.
When the victim regained consciousness, she found him lowering his pants and demanded she lower hers. He threatened to kill her if she did not comply. She started screaming, he put his hands around her neck and she fought, scratching his face at which point he left. Dr. Eisenstein-Rosan testified that Mr. D. has said various things about this crime. He admitted being attracted to the victim. He denied forcing himself on or choking her. He admitted to fondling her butt. He said she hit him. He denied she scratched him and also denied touching her buttocks or breasts. He denied being in the Bronx [apparently where the crime occurred] and said the victim gave him her phone number and asked him to walk her home. He has also reported these allegations were a lie, said he believed the victim was high, said she told him her father would fight him and slapped his face. He said he pushed her and she fell down but denied everything else. He denied he had been arrested. Mr. D. did not previously know the victim and she was unable to identify him in a lineup.
He committed his 6th offense in January of 2016. In that case he was initially charged with Rape in the First Degree, Sexual Abuse in the First Degree and Burglary in the Third Degree. He was convicted of Forcible Touching for this crime on June 18, 2017 and sentenced in October of 2017. He apparently received two one year concurrent sentences for the two forcible touching convictions which satisfied the charges for his 5th and 6th offenses. In the 6th offense, Mr. D. met the victim on the subway and she invited him to her apartment to exchange phone numbers because her phone had run out of battery life. She then asked him to leave. He pulled down the victim's pants and raped her. He denied raping the victim because he said he "didn't put it in your [the victim's] butt." Id., p 53. Mr. D. admitted having sex and said it was consensual. He said she invited him to her apartment. He said she then asked him for money. He said that the victim asked him to stay the night and he refused. He reported that the victim then continued calling and texting Mr. D. for money.
The victim called the police the day after the assault and said she had texted Mr. D. She refused a rape kit. Mr. D. reported that he took responsibility for cheating on his wife. He has given a number of versions of these events, which all assert the sex was consensual. He told Dr. Shields that the victim texted and called him so much he had to block her. While these two offenses were pending Mr. D. was arrested for the "instant" Article 10 qualifying offense while he was still 24 years old.
He was arrested for this offense on March 7, 2016 for burglary, Sexual Abuse in the First Degree and Stalking in the Third Degree. He was convicted by plea of Sexual Abuse in the First Degree on June 21, 2017. He received a sentence of 5 years prison and 5 years of post-release supervision. At the time he had been working in a gym for over a year and doing well. Mr. D. followed the victim by walking from 59th to 112th streets. Once inside the victim's apartment elevator, he grabbed her from behind and put his hand inside the back of her pants and grabbed her buttocks. This occurred about 1 ½ months after his arrest for the previous two offenses.
He also was reported to have put his hands over the victim's shoulder and pinned her against the wall. She struggled and broke free. He was reported to have said he was sorry, said she was pretty, offered her money and asked for her phone number. Dr. Eisenstein-Rosan testified that Mr. D. has given numerous inconsistent accounts of this incident. He has said he had consensual sex with the victim. He admitted he was guilty of sexual abuse. He has denied sexual contact. He has said he and the victim were making out on the staircase of the building and got caught. He has said they met on the train, were flirting and the victim touched his chest and invited him to her apartment. He has said they agreed to have sex but the victim wanted to eat first. He has said an old lady reported him for kissing the victim in the stairwell. He has said he knew the victim and that her brother owed him money. He said he had frightened the victim so her brother would contact him. Dr. Eisenstein-Rosan said this incident demonstrated more blatant misrepresentations and minimizations of his crime than he had exhibited previously.
Dr. Eisenstein-Rosan opined that Mr. D. pushed to commit these crimes even under circumstances where he was likely to be caught and that "there is no compunction for him to attempt to control his impulses". Id., p. 60. Mr. D.'s more recent offenses were an escalation from his earlier crimes. He also committed sexual offenses in close proximity. The long walk he took to follow the victim in the instant offense evidenced his determination. The fact that he said he had been unfaithful to his wife indicated he apparently had an available sexual partner at the time. This reflected serious difficulty in controlling his sexually offending behavior. Dr. Kirschner said it was significant that the instant offense and an earlier crime occurred during the day when apprehension was more likely. Dr. Shields said it was common for accounts of sexual offenses to differ between victims and perpetrators. He said these differences did not directly impact his thinking about whether Mr. D. had a Mental Abnormality.
History in Prison and OMH Custody/Sex Offender Treatment
Mr. D. entered the PBSOTP in January of 2019. He received a disciplinary ticket while incarcerated for the instant offense by having 80 pictures of females in violation of PBSOTP rules. He was allowed to keep 12 of these pictures, which were of his children. On March 9, 2020 he was found with a pornographic magazine in his cubicle. He said he was keeping the magazine for someone else. Dr. Eisenstein-Rosan said she believed Mr. D. would not have received a sanction for possessing the magazine if he were not in sex offender treatment. He was suspended from the PBSOTP for 30 days for this. There was no indication that the pornographic magazine contained illegal or deviant content. The possession of the pictures and magazine violated the PBSOTP agreement he had signed and was an example of Mr. D.'s attitude that if he wanted something he should have it.
After the 30 day suspension, Mr. D. was assigned homework which he worked on and was then granted re-entry to the program after a total of 2 months. Upon returning to the program he was put on a "support plan" to address issues and after 30 days he was taken off the support plan and was doing well. In his homework, Mr. D. reported that entitlement and grandiosity were problems for him. It was positive that during treatment Mr. D. saw things about himself and understood that he argued, threatened and raged to get things he wanted. He continued to minimize his sexual offending, however.
In treatment he went through phase one and then entered phase two where he was a "team leader". He also complained and was moderately irritated. He worked on being too loud or aggressive and on issues of power and control and a lack of empathy for his peers. In August of 2020 he was reported to have met expectations in treatment and did better in accepting feedback. He was also reported to have been verbally aggressive and judgmental. He had problems completing assignments and it was unclear to his treaters whether he was internally motivated to engage in the treatment program. He was reported to be doing a lot better but got another "support plan" on September 29, 2020 in an effort to address some of the issues he was confronting. He was reported to have made threats to peers although Dr. Eisenstein-Rosan could provide no examples. Mr. D. was doing work in treatment. But his treaters did not know whether this was making a deep impact on him. Mr. D. was in phase 3 of the PBSOTP program when he was transferred to the New York State Office of Mental Health ("OMH") Secure Treatment and Rehabilitation Center at Oakview [in Oneida County] ("STARC-Oakview" or "STARC") in February of 2022. Dr. Eisenstein-Rosan said that Mr. D. was generally reported to be doing well at STARC but also occasionally continued to be irritable and aggressive.
Dr. Eisenstein-Rosan recounted four problematic incidents at STARC in 2023, only the last of which resulted in Mr. D. being sanctioned. In one, he was on a line to receive medication and initially refused to take the medication and became angry and started yelling. In the second incident, on July 1, he insisted he was entitled to receive two breakfasts and when a female worker said he was not, he threatened to jump over a counter and make a disturbance. This was reported by a food service worker. However, video footage of the incident did not appear to indicate Mr. D. was talking in a threatening or elevated tone or blocking other persons from receiving food. Treatment aides at the facility who were present reported that they did not hear Mr. D. make any threats or hold up the breakfast line. In a third incident, Dr. Eisenstein-Rosan said Mr. D. kicked a trash can but she provided no further information, having initially conflated this report with the disturbance she reported on the breakfast line. Dr. Eisenstein-Rosan said it was difficult for Mr. D. to take issues in stride.
In a final incident in December of 2022 he was in an elevator with 4 patients and a staff member and punched one of his peers. The person Mr. D. hit had hit Mr. D. in October of 2022 but Mr. D. refused medical attention at the time and said he did not want to press charges. Mr. D. received a loss of privileges for 30 days for hitting the peer. Mr. D. asked about his request to be separated from this person in January of 2023, saying he did not want to get into further trouble with him. That person then threw a basketball towards Mr. D. in April of 2024 when Mr. D. was working in the laundry. Staff restrained the person and no fight ensued. Mr. D. in April of 2024 then again asked about his request to be separated from this person but received no response. Mr. D. attends all of his treatment sessions.
Mr. D. has been reported to have done an excellent job at accepting feedback at STARC although he sometimes does not connect it to what is going on in his life. He has improved. He is making moderate progress. He told Dr. Eisenstein-Rosan that music and parties were risk factors for him because he flirts with women, is unfaithful and feels frustrated and helpless. He reported feeling he had been "played" by women. Id., p. 72. She pointed out, however, that none of his offending was related to music or parties. With respect to preventing a relapse, Mr. D. said he needed to stay away from strangers, not have sex or flirt with women, get treatment, be family oriented, have support, get a job and stay focused.
Dr. Eisenstein-Rosan opined that the goal of not talking to strangers was not realistic and that the challenges Mr. D. faced did not have to do with interacting with strangers but arose from inside him. She opined that he did not currently have an adequate relapse prevention plan. Regarding treatment, she said she saw "some benefit" and that his ability to connect to some of his problematic behaviors was "really great". Id., p. 77. An offender can benefit from sex offender treatment while denying offending. What Mr. D. has not yet done and needs to do is to address the circumstances surrounding his offending.
Mr. D. reported that his mother and father were his biggest supports but Dr. Eisenstein-Rosan said his mother was a severe alcoholic and in and out of mental hospitals and that he had two altercations with his father while Mr. D. was on parole which resulted in his father calling the police two days in a row. No charges were filed against Mr. D. in those incidents. Mr. D. has reported that he now has a good relationship with his father. He has reported close relationships with a few women but Dr. Eisenstein-Rosan did not know how stable these were.
Dr. Eisenstein-Rosan said Mr. D.'s crimes have all involved strangers. His more recent crimes have all involved subways. His offenses have featured following women, sometimes when invited and sometimes not. His offending has escalated over time. He has briefly talked about forcible touching in treatment but not his more serious crimes. He needs to get close to acknowledging his offending. His offenses have been very close in time to each other.
Dr. Eisenstein-Rosan opined that Mr. D. was sexually preoccupied when he was on parole, based on information he provided at that time, although she also said this was not clear. She said she could not conclude he was currently sexually preoccupied. She opined that Mr. D. uses sex to cope and that it improves his self-esteem when he feels bad. The need to relieve negative feelings might push him to commit sex offenses. The reasons for Mr. D.'s offending are multi-dimensional.
Dr. Kirschner said that his review of the most recent Individual Service Plan ("ISP") report from STARC outlining Mr. D.'s status for the 6 month period ending in November of 2023 indicated he was doing "very well". Id., p. 21. He has been engaged in groups and providing and accepting feedback. However, Dr. Kirschner said that Mr. D. still had a lot of work to do. He said that Mr. D. had only recently been given the goal of addressing his sex offending. He has not yet addressed his sexual offense triggers and his motivations to sexually offend. Dr. Kirschner said that while the PBSOTP records gave precise information, the information contained in the STARC records were general and did not give specific information about the extent to which Mr. D. was addressing his offense-related issues. In the PBSOTP records Mr. D. gave conflicting accounts regarding his offenses and did not take responsibility for them. Dr. Kirschner said these conflicting accounts and the failure to take responsibility were cognitive distortions or cognitive problems.
Dr. Shields testified that Mr. D. spoke with great enthusiasm about his sex offender treatment and he opined Mr. D. was committed to it. He said Mr. D. has participated actively in treatment in both DOCCS and at STARC. Mr. D. is in contact with his father and children. Mr. D. and his father had a rupture in their relationship which they are trying to repair. Dr. Shields testified that this occurred, according to Mr. D., when he obtained some photographs of Muhammad Ali he thought his father would like because of his father's great interest in boxing. His father then returned the gift with an obscenity.
Mr. D. has said that it is important to him to show his father, siblings and children that he is a different person today than when he offended. He told Dr. Shields that during sex offender treatment he had learned how to treat women more respectfully. Dr. Shields noted that Mr. D. had two young daughters and had expressed the hope that they would be treated with respect. He said Mr. D. intended to "keep his hands to himself" and continue to engage in sex offender treatment were he released. Id., p. 10. Dr. Shields opined that Mr. D. had learned that he had been incarcerated because he had behaved disrespectfully towards women and did not have boundaries. He said that Mr. D. learned during his upbringing that women were abused and then modeled that behavior as an adult. Dr. Shields said that he was not aware that Mr. D. had completed a relapse prevention plan. He said that offenders will sometimes relapse when they engage in substance abuse or are under stress. Dr. Shields opined that Mr. D. did not have a sex offense "cycle" which reflected patterns in his offending behavior.
Mr. D.'s ISP from STARC for the 6 month period ending on November 24, 2023 as well as STARC treatment notes from November 10, 2023 until January 9, 2024 were received in evidence. The records indicated Mr. D. was making moderate progress in sex offender treatment. He was noted to attend treatment sessions, be active and engaged, provide appropriate feedback and be motivated. After initially having difficulty completing assignments and with reacting harshly at times, his work had improved. Among other issues, he has worked on his anger and his view, arising from his childhood, that the world has been unfair to him. His behavior and demeanor were noted as appropriate.
Diagnoses and Conditions
Dr. Eisenstein-Rosan scored Mr. D. with 25.3 of the Psychopathy Checklist Revised (the "PCLR"). She described this as a moderate to high score, said the general standard for assigning psychopathy was 30 and that Mr. D. had "some psychopathic traits or features". Id., p. 90. She noted entitlement, grandiosity and impulsivity as particularly relevant. She noted she scored Mr. D. with a "1" on those traits rather than the higher score of "2" but that her score indicated those traits were present. The PCLR has an error rate of plus or minus 3 points. She did not assign the condition of psychopathy to Mr. D. She scored Mr. D. with "1" rather than "2" points on a number of items.
The PCLR is divided into four "facets" with the antisocial facet being the fourth and including five scoring items. She scored Mr. D. with 8 points under this facet which was the highest score she gave for a facet. She omitted any score for Mr. D. for "early behavioral problems" under this facet, meaning behavioral problems under the age of 12, because she said she did not have sufficient information about them.
She outlined the characteristics which supported her ASPD diagnosis as a failure to comply with social norms, deceitfulness, lying and impulsiveness. Mr. D. fails to plan ahead and in the community has moved from place to place and woman to woman. He is irritable and aggressive. He has a reckless disregard for himself and others. He has some degree of irresponsibility and has had women support him. He has a lack of remorse and has rationalized what he has done. As an example, she pointed to his explanation that he stole a purse using a weapon to obtain food. She said he could have stolen food in less violent ways.
With respect to the requirement for an ASPD diagnosis that a person have evidence of conduct disorder prior to age 15 she said there was not a lot of evidence on this point but noted his being out past curfew at ages 12-13, fighting and running away from his foster family prior to age 15, stealing as a youth, having police contact between ages 12-17, being in fights at a group home which resulted in police being called and chasing a man with a toy gun at age 12-13. She said there were 15 criteria for conduct disorder but that the requirement that a person have evidence of conduct disorder prior to age 15 in order to be diagnosed with ASPD did not require that any particular conduct disorder criteria be met. She said she would not find evidence of conduct disorder because a minor had one fight.
Dr. Eisenstein-Rosan said ASPD is a lifelong condition and that its behaviors diminish beginning at age 40. She agreed that some research indicates that up to 80% of men in prison can be diagnosed with ASPD. Child abuse or neglect or erratic parenting may increase the likelihood that conduct disorder can lead to ASPD. Mr. D. was aggressive at STARC recently. She opined that Mr. D. has a Mental Abnormality under Article 10. He does not control his sexual feelings. His grandiosity and sense of entitlement means he believes he is entitled to have things he wants including sexually abusing an unwilling victim. "[H]e has self-regulation deficits because of his aggressiveness and irritability and dysphoria". Id., p. 99. "So there is nothing in there that stops him" [from sexually offending]. Id. He objectifies women and says he is working on that issue.
She opined that his psychopathic traits were part of the basis for her conclusion that Mr. D. has a predisposition to commit sexual offenses. Psychopathic traits are not a diagnosis and "there is no criteria for [psychopathic] traits". Id., p. 131. Dr. Eisenstein-Rosan said she "might" assign a person with psychopathic traits if he had a moderate degree of psychopathy. It would depend on whether the traits were "very prominent in the personality". Id., p. 133. In this case, she opined, grandiosity and entitlement were sufficiently prominent for the designation of psychopathic traits. "Moderate" psychopathy under the PCLR is applicable if a PCLR score is between 17 and 24 and Mr. D.'s score was 25, which, presuming a possible error rate of 3 points, put him in the moderate to high range.
Dr. Eisenstein-Rosan agreed that for persons convicted of rape in prison the mean (or average) PCLR score under the "standard" measure was 25.5. Under the "file review" the average was 21.3. [It was not clear during the testimony what the difference between the "standard" and "file review" categories were]. Thus Mr. D.'s PCLR score was almost the same as the average score using the "standard" criteria for men in prison who were convicted of rape. "I think he has few internal resources for, you know - given his history it makes sense". Id., p. 101. He has committed sexual offenses on parole. He has a hard time learning from experience. He is getting better at that at STARC but needs to do more work. Mr. D. has not sexually offended in prison or at STARC but at those facilities he has much more support than he would have in the community. Mr. D. has offended against strangers and in confinement he does not encounter strangers. The fact that Mr. D. had willing sexual partners when he offended means his sexual offenses were about more than sexual satisfaction. Dr. Eisenstein-Rosan agreed that Mr. D.'s inconsistent accounts of his past could be explained to a degree by his childhood trauma. She described him as "a quite bright young man". Id., p. 108.
Dr. Kirschner diagnosed Mr. D. with ASPD and outlined the bases for that conclusion. He said Mr. D. had evidenced conduct disorder prior to age 15 through "deviant behavior, fighting, placed in group homes, things such as that.". Id., p. 15. He said Mr. D. had a lack of remorse and was deceitful. He acknowledged that Mr. D. at one point had been removed to a group home as an infant and that he had been removed from such a home and placed in foster care due to allegations he had been abused. Dr. Kirshner agreed that up to 80% of offenders in prison can be diagnosed with ASPD. "That's why it is useless. It doesn't really say anything about an individual.... Antisocial covers a heterogenous group of people. I have never been in favor of the diagnosis personally". Id., p. 38.
Dr. Kirschner diagnosed Mr. D. with Narcissistic Personality Disorder ("NPD"). He said the diagnosis required that at least 5 of 7 of the disorder's characteristics be met. He said Mr. D. had a "grandiose sense of self-worth". Id., p. 14. As an example, he said Mr. D. aspired to be a boxing champion within 5 or 10 years and reported he was a boxer and trainer. Dr. Kirschner opined that this goal demonstrated a grandiose sense to self-worth because Mr. D. would be in his late 30's or early 40's in 5-10 years.
He said Mr. D. is preoccupied with being respected and has very often offended because he felt women ignored him and refused to hug him. He believes he should have what he wants when he wants it. He has a lack of empathy. He exploits others for his own gain. He is arrogant. After recounting these points, Dr. Kirschner said: "I think that's the sum and substance of the various things that motivate him and are related to his narcissistic personality disorder". Id., p. 15. Mr. D. was not given diagnoses in the PBSOTP program. He was not assigned an NPD diagnosis at either Rikers Island or at STARC although he was apparently diagnosed with other conditions at these facilities. At STARC, notes indicated that Mr. D. was diagnosed with ASPD but that other diagnoses were "deferred". Id., p. 42.
Dr. Kirschner assigned the condition of hypersexuality to Mr. D. He said hypersexuality was "excessive sexual drive". Id., p. 16. He discussed the Diagnostic and Statistical Manual of Mental Disorders (the "DSM"), 5th Edition, Text Revision (hereinafter the "DSM-5-TR"; the most recent version of the manual). He said this condition, although not a diagnosis under the DSM, was in a volume of the DSM's former glossary of terms and was a diagnosis in the International Classification of Diseases (the "ICD") published by the World Health Organization. He noted that the DSM was now using diagnostic codes from the ICD so the ICD was a valid diagnostic tool in the United States.
He said Mr. D. was hypersexual because he had reported having sex four times per week. He impregnated two women at the "same time". He has two children who are the same age. He had multiple sexual relationships at the same time. He had numerous one-night stands. Dr. Kirschner thus opined that much of Mr. D.'s life revolved around sex. He also noted that Mr. D.'s father harbored prostitutes and that Mr. D. was around prostitutes when he was growing up. He opined Mr. D. was "preoccupied with sex". Id., p. 17. Dr. Kirschner acknowledged that while the DSM-5 had a glossary of terms which included hypersexuality, the most recent version of the document, the DSM-5-TR, did not have a glossary and thus did not have hypersexuality as a glossary term. Hypersexuality was proposed for inclusion in the DSM-5 but rejected. It is included in the ICD under the term "excessive sexual drive". He said that Dr. Eisenstein-Rosan had opined in her report that "sexual preoccupation" or "hypersexuality" "may apply". Id., p. 49.Dr. Kirshner said that Dr. Eisenstein-Rosan in her report had said Mr. D. had been diagnosed with bipolar disorder at Rikers, and that this disorder was treated with medication, but that this diagnosis was discontinued when Mr. D. was placed in DOCCS. Dr. Kirschner described Mr. D. as an "antisocial narcissist" which he said was equivalent to the condition of psychopathy. He said the PCLR score Dr. Eisenstein-Rosan assigned did not make Mr. D. a psychopath but was a "fairly high" score. Id., p. 19. He said it was his practice not to score the PCLR without an interview and agreed that the mean PCLR score for persons with ASPD was in the 20's.
Dr. Kirschner outlined why he believed Mr. D. had a Mental Abnormality. He began offending at age 16 and his sexual offending has escalated. He has offended in broad daylight indicating difficulty in controlling sexually offending behavior. He has a sense of entitlement. Dr. Kirschner said Mr. D. was young and could turn his life around if he successfully worked in sex offender treatment. The fact that Mr. D. offended on one occasion while he was on parole and another while other charges were pending indicated serious difficulty in control. Dr. Kirschner said Mr. D.'s Mental Abnormality arose from ASPD, NPD and hypersexuality. He also has psychopathic traits. Mr. D. did not take responsibility for his sexual offending while in the PBSOTP and gave inconsistent accounts of what he had done. The STARC records do not indicate the degree to which Mr. D. has taken responsibility for his sexual crimes.
Dr. Shields did not assign any diagnoses or conditions to Mr. D. He said an ASPD diagnosis under the DSM-5-TR requires "evidence of conduct disorder with onset before age 15 years". Id., p. 33. He said he interpreted this provision as meaning there must be evidence from which a full diagnosis of conduct disorder could be assigned for a respondent prior to age 15. However, he said, experts in New York had interpreted this provision in a less exacting manner, opining that there simply must be some evidence of conduct disorder prior to age 15, rather than evidence which would support the full diagnosis. He said he did not believe such a diagnosis must have actually been made prior to age 15 for this criterion to be met. He said his view was reflected in a number of publications and referenced one specifically. None of these publications were received in evidence. Dr. Shields also said that problematic behaviors like those Mr. D. engaged in as a teenager had to be carefully evaluated since acting out against bad situations did not necessarily constitute conduct disorder. If a teenager violates social rules in order to avoid being harassed or bullied, Dr. Shields said, that would not constitute evidence of conduct disorder. Dr. Shields was not able to cite any research literature on this point and agreed that children diagnosed with conduct disorder prior to age 15 had generally experienced trauma.
Dr. Shields said that for one of the criteria for conduct disorder to be met, Mr. D. would have to be out of the house past a parental curfew at night multiple times over a significant period of time before the age of 13 and there was not evidence of that. Mr. D. ran away from foster care placements more than once. Dr. Shields said that if Mr. D. could be diagnosed with conduct disorder prior to age 15 that would provide a much stronger argument for a current ASPD diagnosis. He opined, however, that even with such a conduct disorder diagnosis, he would be skeptical Mr. D. could be diagnosed with ASPD now because of the lack of evidence of antisocial behavior in his recent past [while confined].
Dr. Shields said that the DSM-5-TR with respect to conduct disorder indicated that the context in which behaviors occurred had to be considered, which, in Mr. D.'s case, arose from being mistreated in group homes. Dr. Shields also said that if behaviors occurred in reaction to racial bias that had to be considered in evaluating whether a person had conduct disorder. He said he did not see racial bias as an immediately apparent explanation for Mr. D.'s behavior in running away from out-of-home placements, however.
Dr. Shields also didn't diagnose Mr. D. with Other Specified Personality Disorder with antisocial traits because he didn't see evidence of antisociality in Mr. D.'s early developmental history. He also opined that Mr. D. had not evidenced antisocial traits for a long time. He has not displayed problematic sexual or other kinds of antisocial behavior in confinement. Some people who conform their behavior to norms in confinement also have appropriate behavior in the community and some do not. He said Mr. D.'s criminal behaviors were due to "trauma history and the modeling that he had when he was growing up in his own home about how women were treated as objects and disrespected". Id., p. 43. He acknowledged that Mr. D.'s crimes manifested antisocial traits. He said Mr. D.'s crimes and antisocial behavior spanned an 8 year period from the ages of 16-24 but that it had not occurred since then. Mr. D. has often described sexual relations he had with his victims as consensual but also admitted to grabbing a woman's butt and putting his hands in a victim's pants. Dr. Shields opined that these latter two descriptions did not appear to claim such conduct was consensual.
Dr. Shields outlined why he did not diagnose Mr. D. with Narcissistic Personality Disorder ("NPD"). He did not see evidence of NPD during his 7 hours of interviews with Mr. D. which he said he would have seen were the diagnosis appropriate. He said that no one had ever diagnosed Mr. D. with NPD before Dr. Kirschner who, Dr. Shields opined, created the diagnosis as an "invention" "out of the blue based on little or no evidence". Id., p. 51. He also said it would have been difficult for Dr. Kirschner to discern narcissism without an interview. He said that all criminal offenders with a victim manifest a degree of narcissism since they ignore the rights of others. He testified that NPD "is characterized by a sense of entitlement, grandiosity and self-importance that you see across time and across settings". Id., p. 52. He did not think it was significant, as Dr. Kirshner said, that Mr. D. said he wanted to be a boxing champion. Dr. Shields testified that adolescents often had such unrealistic goals and that a single statement like this did not reflect a narcissistic personality. Such a goal, he opined, might simply be the result of immaturity brought on by the problems in Mr. D.'s developmental history.
Dr. Shields opined that a notation in Mr. D.'s sex offender treatment homework that he was grandiose was insufficient for an NPD diagnosis. The diagnosis "requires that you have a grandiose [SIC] of self-importance that manifests, again, through various sources. When you exaggerate your achievements, you go on about your accomplishments, you start telling stories that are not true about how wonderful and great you are." Id., p. 56.
Dr. Shields did not assign "psychopathic traits" to Mr. D. He said such traits are a combination of antisocial and narcissistic character. He testified that there was nothing in Mr. D.'s records or in his interview which suggested he had a narcissistic character, other than the facts of the offenses themselves. He said assigning both ASPD and psychopathic traits to an individual was misleading, since psychopathic traits are inherent in ASPD. About 75% of incarcerated persons meet the criteria for ASPD. Of those, about one third meet the criteria for psychopathy, since they score 30 points or more on the PCLR. In the alternative model for ASPD [contained in the DSM], items from the PCLR are criteria for ASPD. He opined that assigning both ASPD and psychopathic traits was" a way to get around some of the case law restrictions on antisocial personality disorder alone". Id., p. 60.
Dr. Shields said he had just received the PCLR scored by Dr. Eisenstein-Rosan prior to his trial testimony and believed some of the scores may have been inaccurate since they did not reflect behaviors across time. He also said the score of 25 was about the average for incarcerated persons. He said that 75% of persons in the prison system not only have ASPD but high psychopathy scores. Dr. Shields said that a significant number of the points Dr. Eisenstein-Rosan scored on the PCLR were scored on antisocial characteristics and a comparatively fewer number came from narcissistic features.
Dr. Shields said he believed there were definitional problems with the manner in which Dr. Kirschner assigned the condition of hypersexuality to the Mr. D. He opined that Dr. Kirshner's conclusion that Mr. D. was preoccupied with sex was not supported by any evidence. Dr. Kirschner's conclusion in this regard was not consistent with the diagnosis of Compulsive Sexual Disorder in the ICD. Dr. Shields said this diagnosis required that there be a prolonged period of time spent in sexual behaviors or fantasies during periods a person was contending with a mood disorder or stressful life event. Dr. Kirschner described the condition as a stronger than usual urge for sexual activity, a definition from a glossary term in the DSM-5 which no longer exists.
Dr. Shields asserted that Mr. D did not evidence hypersexuality. He said that there were standardized tools for assigning the condition but that Dr. Kirschner did not use them. Dr. Shields did not consider the fact that Mr. D. at one point was found with pornography in prison to be important. He said many incarcerated persons possess pornography at some point and that such possession is not associated with having a Mental Abnormality. He said that a conflict between Mr. D. and another peer who had harassed and bullied him was not significant. He said he did not believe Mr. D. currently has serious difficulty controlling his sexually offending behavior because that has not been manifest for the past 7 years he has been confined. He acknowledged that behavior in a custodial setting is subject to greater controls but gave examples of sex offenders who continued to act out sexually in confinement.
Mr. D.'s History
Mr. D.'s accounts of his early life have been inconsistent but Dr Eisenstein-Rosan said he had a chaotic childhood. He has consistently said that his mother and father were married and his father was a violent alcoholic who abused his mother. He has reported that his father abused him but also denied he was abused, saying he was only punched on his leg or arm. In the PBSOTP he said his father gave him "whoopings". Id., p. 109. He reported being in and out of the child protective system. He was apparently one of nine children. His father was arrested for being a pimp and his parents split at one time and also moved to South Carolina to try to work on their marriage. The couple then split with the father taking the boys and the mother the girls and moved back to New York. His father rented rooms in the house to prostitutes and new pimps. Mr. D. reported both that he was and was not in foster care for significant periods of time.
He reported the family was very poor and that he attended school wearing the same clothes. He also reported, however, that his father made a lot of money from being a pimp. When older, Mr. D. was placed in a foster family with his brothers where he felt like an outcast because the family and his brothers spoke Spanish and he didn't. He would run away and stay out past curfew. As a young teenager he was in group homes and engaged in fights. He reported being bullied and having things stolen at his first group home but then went to a second home which was positive. He talked about repressed anger, assaulting people and when he was very young, stealing things. He also discussed a history of breaking things and punching walls as a teen. He is both angry and desirous of a relationship with his parents. Dr. Eisenstein-Rosan said Mr. D. had reported an upbringing filled with both neglect and abuse and that he had a "terrible, sad childhood". Id., p. 110. Dr. Kirschner also said Mr. D. had a chaotic childhood, that his father was an alcoholic who physically abused him and that his parents fought.
Dr. Shields said Mr. D. had described growing up in "a horrifically abusive environment" where domestic violence was prevalent and he saw his father facilitating prostitution and mistreating women. Id. p. 15. "His [Mr. D.'s] developmental years were very disrupted by ongoing trauma certainly through no fault of his own". Id., p. 15. Mr. D. himself was a victim of physical abuse in the home as were his mother and siblings. As a child Mr. D. feared his father would kill his mother. He said he was bullied in group homes and ran away from them. He stopped attending school in the ninth grade.
Mr. D. has given inconsistent information about his romantic relationships. He reported three significant relationships, two with persons his age and one with a woman 9 or 10 years older. He has reported one romantic relationship at a time and also multiple relationships at the same time. One relationship began at age 14 with a girl who had a child with him. He lived with her briefly and was then unfaithful. She also had an abortion at age 14. He returned to her later and then met a second woman, then returned to the first woman. He denied ever abusing any of his romantic partners. He currently has a girlfriend he intends to marry. He also talked about a romantic relationship with another woman who became pregnant. He reported marrying one of these women and discussed his infidelity with partners. He has given various accounts of his number of sexual partners including 6, 16, 10, 47 one-night-stands, and 16 plus two prostitutes.
Dr. Shields described Mr. D.'s sexual offending as arising from causes other than psychiatric conditions. He grew up "where he had probably the worst modeling we could imagine for how to treat women". Id., p. 134-135. He did not learn how to form a positive relationship with a woman. He told Dr. Shields the thing he wanted most was to feel loved. Dr. Shields testified that Mr. D.'s criminality was not the result of a pathological psychiatric condition but "a product of a very disruptive chaotic developmental period from which he got all of the wrong messages". Id., p. 136. Dr. Shields said that there are some studies which link exposure to domestic violence as a child to a child's later commission of violence. There are also studies which discuss the relationship between being exposed to domestic violence with an absence of sexual boundaries as a child and later violence or sexual behavior although those studies do not establish a causal relationship.
Dr. Shields opined that Mr. D. did not have serious difficulty controlling his sexually offending behavior because no such difficulty had been displayed during the past 7 years in confinement. He also opined that Mr. D.'s continuing engagement and interest in sex offender treatment would mitigate his potential to re-offend. Dr. Shields acknowledged that Mr. D. had also served a shorter prison term after a robbery conviction in 2017, did not incur any disciplinary infractions in prison and then sexually offended after release.
CONCLUSIONS OF LAW
There was no argument at the trial that Mr. D. was not a "Detained Sex Offender" under Article 10, a necessary determination to subject him to sex offender civil management. See MHL § 10.03 (g). He was serving a sentence for the instant Article 10 offense when the petition was filed. The trial concerned the question of whether Mr. D. suffers from a Mental Abnormality. A Mental Abnormality is defined under the statute as "a congenital or acquired condition, disease or disorder that effects 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).
As explained more fully infra, the court credited the diagnosis and condition the State's expert Dr. Eisenstein-Rosan assigned: ASPD with psychopathic traits. The court did not agree with Dr. Shields' conclusion that Mr. D. could not be diagnosed with ASPD and did not have psychopathic traits. The court did not credit the additional diagnosis and condition assigned by Dr. Kirschner: Narcissistic Personality Disorder and Hypersexuality. Mr. D.'s diagnosis of ASPD with psychopathic traits does not constitute a valid "condition, disease or disorder" under Donald DD. For that reason, he does not have a Mental Abnormality.
RESPONDENT'S MOTION FOR A DIRECTED VERDICT IS DENIED
During the trial, the Respondent moved for judgment as a matter of law (a directed verdict) pursuant to CPLR 4401 and the court reserved decision on that motion. That motion is denied. For a directed verdict to be granted, there must be no rational process by which a fact-finder could base a finding in favor of the non-moving party and the evidence must be viewed in a light most favorable to the non-movant. Dorine Boriello v. Michael Laconte, 181 A.D.3d 856 (2nd Dept 2000); Herbold v. LaBarre, 176 A.D.3d 1428 (3rd Dept 2019). Here, viewing the evidence in a light most favorable to the State, the combined diagnoses and conditions assigned by Dr. Kirschner: ASPD, Narcissistic Personality Disorder and Hypersexuality would be sufficient Mental Abnormality predicates. Moreover, the trial evidence was also sufficient, viewing it in a light most favorable to the State, to demonstrate that these diagnoses and conditions resulted in a predisposition to commit and serious difficulty in controlling the commission of sexually offending behavior. Of course, as the trial fact-finder the court determined Mr. D. did not have a qualifying psychiatric diagnosis because it did not credit all of the diagnoses and conditions Dr. Kirschner assigned. But the court did not believe its determination was the only possible conclusion a rational fact-finder could have reached as a matter of law under the directed verdict standard.
DIAGNOSES AND CONDITIONS CREDITED BY THE COURT
The Court Credited the State's Experts' ASPD Diagnosis
The court credited the State's experts' diagnosis of ASPD. The diagnosis was amply supported by the evidence of Mr. D.'s conduct, including his crimes. It is true that Mr. D. has not manifested antisocial behavior in confinement but the court agreed with the State's witnesses that this did not mean such behavior would no longer occur in the community. The most significant dispute regarding ASPD was a definitional one, which was explained most clearly by Dr. Shields.
As Dr. Shields explained, an ASPD diagnosis under the DSM-5-TR requires "evidence of conduct disorder with onset before age 15 years". Id., p. 33. He said he interpreted this provision as meaning there must be evidence from which a full diagnosis of conduct disorder could have been assigned prior to age 15. However, he said, experts in New York had interpreted this provision in a less exacting manner, opining that there simply must be some evidence of conduct disorder prior to age 15 to satisfy this criterion. He clarified that he did not believe such a diagnosis must have actually been assigned for a respondent prior to age 15. He said his view was reflected in a number of publications and he referenced one. None of these publications were received in evidence. Dr. Shields also said that problematic behaviors like those Mr. D. engaged in as a teenager had to be carefully evaluated since acting out against bad situations did not necessarily constitute conduct disorder.
The State's experts disagreed on this definitional point. They rather interpreted the "conduct disorder" requirement as necessitating some evidence of conduct disorder prior to age 15. That view has been reflected in the testimony of every expert the court can recall testifying about this issue in recent years, for both the State and respondents, with the exception of Dr. Shields. In the court's view, none of the experts in this case provided persuasive evidence of what this term was intended to mean. The court, however, given what it has found to be the universal view of every expert it has heard opine on this issue in recent years other than Dr. Shields, construed the term as the State's experts used it: that there must be some evidence of conduct disorder prior to age 15 to satisfy this diagnostic criterion but not evidence which would necessarily support the full diagnosis.
The resolution of this question is often not critical. If a respondent cannot be diagnosed with ASPD because the conduct disorder requirement is not met, then the respondent can and often is diagnosed with "Other Specified Personality Disorder with Antisocial Features", a diagnosis which will have the same impact in Article 10 cases. It also may be difficult or impossible to retrospectively provide a full diagnosis of conduct disorder many years or decades later based primarily on a record review. Finally, the conduct disorder requirement is meant to ensure that ASPD may be diagnosed only when antisocial characteristics reflect a constellation of personality traits which begin in childhood or early adolescence and extend into adulthood. In this case, in the court's view, Dr. Eisenstein-Rosan persuasively explained why multiple behaviors Mr. D. engaged in prior to age 15 supported the "evidence of conduct disorder" requirement and the view that Mr. D.'s ASPD reflected an extended course which began in adolescence.
This court reached a different conclusion in State v. Charada T., 59 Misc.3d 1205 (A) (Sup Ct, NY County 2018). There, in a case with significantly less evidence of conduct disorder prior to age 15 than existed here, the court found an ASPD diagnosis had to be supported by facts which would have allowed a full conduct disorder diagnosis prior to age 15 to be made. The past 6 years of expert testimony have persuaded the court that its decision on that point was error.
Dr. Kirschner's Testimony Generally
The court's decision hinges on its view that Dr. Kirshner' diagnosis of NPD and, to a less important degree, his assignment of the condition of hypersexuality should not be credited. The court therefore believes it is important to first outline briefly some general issues concerning Dr. Kirschner's work in Article 10 cases. This court has presided over Article 10 cases since 2008. It has heard Dr. Kirschner testify on a multitude of occasions. He is consistently well-prepared and well-informed. He is an excellent trial witness. He has been featured in many of the leading appellate decisions interpreting Article 10, including three of the most important Court of Appeals cases, ten Appellate Division decisions and numerous trial court rulings.
See e.g. Donald DD. (in the Kenneth T. portion of the decision) ; State v. Floyd Y., 30 N.Y.3d 963 (2017); State v. Dennis K., 27 N.Y.3d 718 (2016), cert denied, Dennis K. v. New York, 137 S.Ct. 579 (2016).
Dr. Kirschner also has this striking characteristic: he has conducted over 350 Article 10 evaluations and concludes a respondent has a Mental Abnormality about 99% of the time. That is a more skewed percentage by far than any other Article 10 expert this court has encountered. Moreover, in this court's admittedly anecdotal experience, Dr. Kirschner often assigns diagnoses or conditions other experts do not. This court frequently credits such diagnoses and conditions. Sometimes it does not.
See State v. Lance S. (unreported decision of this Court), SMZ-71430/21, February 13, 2024 * 2. During a bench trial this court presided over last week on August 6, 2024, Dr. Kirshner recounted the same 99% figure. State v. Richard P., SMZ-73185/23.
The court does not believe Dr. Kirshner tailors his conclusions to achieve a tactical advantage by deliberately assigning diagnoses or conditions other than ASPD to evade the Donald DD. rule. It rather believes that Dr. Kirshner honestly imposes a template for evaluating Article 10 respondents which leads to a Mental Abnormality finding in virtually every case. In the court's view, the State generally does a good job of culling from persons convicted of felony sex offenses who are eligible for Article 10, the "worst of the worst" for Article 10 petitions. So, there are reasonable arguments in almost every case the State brings that a Mental Abnormality exists. This, in turn, is at least part of the reason why an extraordinarily large percentage of Article 10 petitions survive the probable cause stage of an Article 10 proceeding. New York courts have conducted at least 1039 probable cause hearings since the statute was enacted in 2007. Courts have found probable cause in 1033 of them, a 99.4% rate. So, when Dr. Kirshner finds virtually every Article 10 respondent has a Mental Abnormality he is not reaching obviously flawed conclusions. Yet his implicit template also differs significantly from the one judges and juries sometimes apply in making trial decisions. Since the statute was enacted there have been 530 Article 10 trials. Judges and juries have found a Mental Abnormality was not proven in 82 of them. Judges and juries sometimes find the State's evidence in Article 10 cases lacking. Dr. Kirshner almost never does.
New York State Attorney General, Annual Report on Sex Offender Civil Management for the period ending March 31, 2024, p. 15.
Id.
Another interesting point arose during Dr. Kirschner's testimony in this case. Regarding ASPD, Dr. Kirschner agreed that up to 80% of offenders in prison can be diagnosed with the disorder. He then allowed: "That's why it is useless. It doesn't really say anything about an individual.... Antisocial covers a heterogenous group of people. I have never been in favor of the diagnosis personally". Transcript, p. 38. The Donald DD. majority had a similar view. In conducting Article 10 evaluations, however, in cases where an offender's conduct is driven primarily by antisociality Dr. Kirshner may be incentivized to find other diagnoses or conditions. Otherwise, he would have to find no useful psychiatric diagnosis at all. When one's useful psychiatric hammer cannot land on an ASPD diagnosis, any respondent with ASPD may appear as a non-ASPD diagnostic nail.
The Court Did Not Credit Dr. Kirschner's Diagnosis of Narcissistic Personality Disorder
The court did not credit Dr. Kirshner's diagnosis of Narcissistic Personality Disorder ("NPD"). The DSM-5-TR defines NPD as "a pervasive pattern of grandiosity (in fantasy or behavior), need for admiration, and lack of empathy, beginning in early adulthood and present in a variety of contexts as indicated by five (or more) [of 9 listed characteristics]. First, of the three experts who testified at the trial, two (including the other State expert) did not assign this diagnosis. It has also never been assigned to Mr. D. by any psychologist before. Mr. D. was not given diagnoses in the PBSOTP program. He was not assigned an NPD diagnosis at either Rikers Island or at STARC although he was apparently diagnosed with other conditions at these facilities. At STARC, notes indicated Mr. D. was diagnosed with ASPD but that other diagnoses were "deferred". Transcript, p. 42.
DSM-5-TR "Narcissistic Personality Disorder", Diagnostic Criteria, p. 760. Provisions of the DSM-5-TR, including the diagnostic criteria for NPD, ASPD and Conduct Disorder were received in evidence during the trial.
The two experts who interviewed Mr. D. and had the opportunity to observe whether he manifested the grandiosity and entitlement characteristic of NPD determined he did not warrant the diagnosis. Dr. Shields recounted that during 7 hours of interviews he did not observe behaviors consistent with NPD. It was only Dr. Kirshner, who did not have the opportunity to interview Mr. D., who gave an NPD diagnosis. But Dr. Eisenstein-Rosan and Dr. Shields obviously had a more informed basis to make that judgment.
Dr. Kirshner first explained that he had reached this conclusion because Mr. D. aspired to be a boxer and since he was already 33 years old, this was an unrealistic goal. In the court's view, however, aspiring to a goal which would have to overcome long odds to be realized is not necessarily the manifestation of a personality pathology. It is certainly not a significant basis on which to diagnose a person with Narcissistic Personality Disorder. Dr. Shields noted that such an unrealistic aspiration might simply be a sign of developmental immaturity, a conclusion fully supported by Mr. D.'s highly dysfunctional upbringing.
Dr. Kirshner then outlined how Mr. D.'s offending reflected a lack of empathy and a sense of entitlement. He said Mr. D. is preoccupied with being respected and has very often offended because of his view that women have ignored and refused to hug him. He said Mr. D. believes he should have what he wants when he wants it. These were all relevant considerations. Dr. Kirshner outlined how the DSM-5-TR outlined 7 criteria for NPD and required that 5 of them be satisfied. [The excerpt from the DSM received in evidence indicated there were 9 characteristics and 5 had to apply]. He opined Mr. D. met 5 of those criteria. There was certainly evidence concerning Mr. D.'s offending which supported Dr. Kirschner's conclusion.
It has been observed and the court agrees that the DSM should not be treated like a "cookbook" by judges who go through its provisions, and make uniformed judgments about whether a diagnosis applies based on the court's assessment of whether every box in a DSM diagnosis has been checked. A cursory view of the DSM's diagnostic criteria, however, indicate some of the reasons why two of the three experts in this case did not diagnose Mr. D. with Narcissistic Personality Disorder.
Most significantly, the "pervasive pattern of grandiosity, need for admiration, and lack of empathy" which characterizes NPD is diagnosed when it is "present in a variety of contexts". DSM-5-TR, p. 761. Dr. Kirschner's diagnosis, however, focused on one context: Mr. D.'s sexual offenses and his own later assessment during sex offender treatment of his thoughts, emotions and behaviors during those crimes. These features were notably absent during his interview with Dr. Shields. More importantly there was almost no evidence these characteristics have arisen in other contexts in Mr. D.'s life. As Dr. Shields also testified, any offender who commits heinous sexual offenses like Mr. D., by definition, displays characteristics of both narcissism and antisociality. That does not mean, however, that all such offenders should be diagnosed with NPD.
Many of the characteristics of the disorder clearly do not apply to Mr. D. although for a diagnosis to apply not all of them have to. "Individuals with narcissistic personality disorder are often preoccupied with fantasies of unlimited success, power, brilliance, beauty, or ideal love". Id. The one example Dr. Kirshner provided to support characteristics outside Mr. D.'s sexual offending on this point was Mr. D.'s ambition to be a professional boxer. Individuals with NPD "may feel that they can only be understood by, and should only associate with, people of high status and may attribute 'unique', 'perfect', or 'gifted qualifies' to those with whom they associate". Id. "They are likely to insist on having only the 'top' person (doctor, lawyer, hairdresser, instructor) or being affiliated with the 'best' institutions but may devalue the credentials of those who disappoint them." Id. "These individuals are often envious of others or believe that others are envious of them". There was no evidence any of these characteristics applied to Mr. D. in any context.
Dr. Shields explained that he did not diagnose Mr. D. with NPD because there was insufficient evidence for it. It "requires that you have a grandiose [SIC] of self-importance that manifests, again, through various sources. When you exaggerate your achievements, you go on about your accomplishments, you start telling stories that are not true about how wonderful and great you are." Transcript, p. 56. The DSM notes that "[o]ther personality disorders [including ASPD] may be confused with narcissistic personality disorder because they have certain features in common". DSM-5-TR, p. 763. The court does not believe Dr. Kirschner was confused. But the significant overlap between ASPD and NPD can lead to different conclusions regarding these diagnoses. In crediting an OMH expert's conclusion that the respondent had "Other Specified Personality Disorder with Antisocial and Narcissistic Traits", rather than NPD, in its unreported decision earlier this year in State v. Lance S., this court credited the respondent's expert's conclusion that "the full disorder [of NPD] is not generally assigned if narcissistic traits are seen as part of an antisocial personality disorder rather than as the most prominent feature of a personality." Lance S., Unreported Decision * 26 (summarizing the testimony of Dr. Steven Erickson). That is exactly what occurred here.
Dr. Eisenstein-Rosan and Dr. Shields reviewed the same records as Dr. Kirshner. Both of these experts, however, saw the NPD characteristics which led Dr. Kirshner to assign the full NPD diagnosis as ones which were better explained as ASPD with psychopathic traits (Dr. Eisenstein-Rosan) or did not justify a psychiatric diagnosis at all (Dr. Shields). And of course, both were able to supplement the written records which were the sole basis for Dr. Kirschner's conclusion with extensive direct interactions with Mr. D. Indeed, there is an argument that an NPD diagnosis should not be made without an interview. See State v. Jerome A., 67 Misc.3d 1220 (A) (Sup Ct, NY County 2020 [decision of this court] SlipOp * 1 (noting that State expert Dr. Kostas Katsavdakis "did not diagnose Mr. A. with Narcissistic Personality Disorder ("NPD") because he was unable to interview him").
The Court Did Not Credit Dr. Kirschner's Assignment of Hypersexuality
The court also did not credit Dr. Kirshner's assignment of the condition of "hypersexuality". Again, neither of the other two experts assigned this condition. Again, there is no evidence that any evaluator has ever assigned this condition to Mr. D. before. There was also no evidence that Mr. D. was manifesting any behaviors consistent with "hypersexuality" in confinement. Even had this court credited this condition, however, it would not change the result here. As explained infra, the First Department has held that the ASPD along with hypersexuality are insufficient Mental Abnormality predicates.
Dr. Kirschner said hypersexuality was "excessive sexual drive". Id., p. 16. He provided no standard for how this might be measured. He said this condition, although not a diagnosis under the DSM, was in a volume of the DSM's glossary of terms under the DSM-5 [but not the more recent DSM-5-TR which did not have a glossary] and was a diagnosis in the International Classification of Diseases (the "ICD") published by the World Health Organization. The ICD defines the term as "excessive sexual drive". He noted that the DSM was now using the diagnostic code numbers contained in the ICD so the ICD was a valid diagnostic tool in the United States.
He said Mr. D. was hypersexual because he had reported having sex four times per week. He impregnated two women at the "same time". He has two children who are the same age. He had multiple sexual relationships at the same time. He had numerous one-night stands. Dr. Kirschner opined that much of Mr. D.'s life revolved around sex. He also noted that Mr. D.'s father harbored prostitutes when Mr. D. was growing up. He opined Mr. D. was "preoccupied with sex". Id., p. 17. Hypersexuality was proposed for inclusion in the DSM-5 but rejected. He said that Dr. Eisenstein-Rosan had opined in her report that "sexual preoccupation" or "hypersexuality" "may apply". Id., p. 49.
Sexual preoccupation or excessive sexual drive is a controversial designation. This court has credited the condition in a number of Article 10 cases in the past including when it was assigned by Dr. Kirschner. The condition has been upheld as being a generally accepted in Article 10 cases. See State v. Allan A., 207 A.D.3d 635, 637 (2nd Dept 2022). As Dr. Kirschner applied the concept in this case, however, it was standardless and not supported by persuasive evidence. He first said Mr. D. was hypersexual because he had sex four times per week. If healthy men in their 20's who have or aspire to have sex at least four times per week manifest sexual pathology, there is a far greater degree of sexual disorder in the world than anyone has yet suspected. Next, it was relevant to Dr. Kirshner that Mr. D. grew up in a home where his father promoted prostitutes. But the fact that Mr. D., as a child, lived in an extraordinarily disruptive household and saw his father promoting prostitution says nothing about his sexual behavior now.Next, Dr. Kirschner outlined relevant facts including that Mr. D. impregnated two women at about the same time and had multiple sexual partners. Mr. D.'s history of sexual offending is also obviously important. However, again, he provided no standard on which such conduct could be judged. The court would presume that many men in their 20's might have or aspire to have frequent sexual relations. Mr. D. has given wildly inconsistent accounts of his number of sexual partners ranging from 6 to 47. The court following the trial had no idea how many sexual partners Mr. D. has had, whether that number differed from any norm or what any such norm might be. There was also very little evidence during the trial concerning other possible bases for assigning a hypersexuality designation like Mr. D.'s sexual fantasies, masturbation frequency, engagement with prostitutes or consumption of pornography (other than the fact that he had one pornographic magazine in prison). Mr. D. has displayed no evidence of hypersexuality at all for the past 7 years in confinement.
Dr. Shields said there was not evidence that Mr. D. was hypersexual. He said there were standardized tools for assigning the condition but that Dr. Kirschner did not use them. State expert Dr. Eisenstein-Rosan considered the designation but did not apply it. Again, Dr. Kirshner was the outlier. The standards used to assign hypersexuality vary among evaluators. See State v. Victor H., 59 Misc.3d 1204 (A) (Sup Ct, Kings County 2018) (describing the results of an extensive Frye hearing concluding hypersexuality is a generally accepted condition). Given the absence of both discernable criteria and persuasive evidence, however, like the two other trial experts, the court did not agree with Dr. Kirschner's hypersexuality designation.
ATTICLE 10'S FOUNDATIONAL TENSION BETWEEN DIAGNOSTIC PREDICATES AND DANGEROUSNESS
The policy goal of Article 10 is obvious: to protect the public from convicted sexual offenders who have serious difficulty controlling sexually offending behavior. But that is not all the statute requires. Because Article 10 subjects offenders who have already completed their criminal sentences to potential lifetime confinement or supervision, more is necessary. What is required is an appropriate psychiatric diagnosis which justifies the extraordinary deprivation of liberty the law applies to sex offenders but no one else. The diagnostic requirement serves two related purposes.
It first reflects that the goal of sex offender civil management is not only incapacitation but treatment. Few sex offenders subject to such statutes likely feel that they are being confined for their benefit. But the law implicitly presumes they are. It presumes that civil management strictures are imposed not only to protect the community but benefit the offender. This differentiates such statutes from criminal sentences. Offenders are not confined as punishment. They are confined for treatment in order to make them and the community safer.
The diagnosis requirement also serves to link civil management statutes to analogous deprivations of liberty contained in traditional laws allowing persons to be confined in psychiatric facilities when they pose a danger to themselves or others. The difference is that to be subject to sex offender civil management, offenders need not manifest psychotic or incapacitating mental illnesses. Psychiatric pathology sufficient for sex offender civil management is far less exacting. It is enough that a valid diagnosable condition of some kind which creates a predisposition to commit and serious difficulty in controlling the commission of sexual offending is found.
What the law does not allow, however, is to simply confine sex offenders who are dangerous. And that is the dilemma. Many sex offenders are not driven by paraphilic sexual disorders. They are not pedophiles, sexual sadists, voyeurs or exhibitionists. They simply commit horrific sex crimes. They are often driven primarily by antisociality. They may manifest other tendencies not recognized as valid diagnoses, like an attraction to forcible sexual compulsion. But they may lack a diagnosis which allows sex offender civil management to be imposed. For their past and future victims, the extraordinary trauma these offenders exact is not lessened because they lack an identifiable psychiatric condition. But they may not constitutionally be subject to indefinite confinement or supervision. The attempt to reconcile these sometimes competing goals has consumed New York courts since Article 10 was enacted in 2007. It was the foundational issue in this case.
Sex offenders are obviously treated more harshly in important respects under our law than any other category of criminal, a pervasive policy which in academic parlance is called "sex offender exceptionalism". This is reflected most significantly in regulatory systems which have no analogues including the Sex Offender Registration Act and Article 10. Such systems are often justified by obviously incorrect premises, like the assertion that sex offenders have a higher recidivism rate than other criminals or are uniquely prone to uncontrollable behaviors based on unique psychiatric pathologies. The United States Supreme Court decision which originally upheld such statutes concerned a pedophile named Leroy Hendricks who had reported that when he got "stressed out" he could not "control the urge" to molest children and that the only way to be sure he would not repeat his crimes in the future would be for him "to die ". Kansas v. Hendricks, 521 U.S. 346, 355 (1997). Mr. Hendricks was a rarity among sexual offenders. But his example paved the way for systems like Article 10.
In reality, sex offenders are not as a group more driven by psychiatric pathology than drunk drivers with alcohol use disorders, narcotics offenders who have substance use disorders or the extremely rare violent criminals who offend in the grip of psychotic episodes. None of these offenders are subject to civil management under any system like Article 10. Nor are Article 10 qualifying offenses necessarily more serious than other crimes. The qualifying offense here was the Class D felony of Sexual Abuse in the First Degree. That is not a more serious crime than murder, kidnapping, disfiguring assaults or many other violent crimes. The reason sex offenders alone are subject to civil confinement or management after their prison sentences are over in this and many other states is simple. It is not based in recidivism data. It is not compelled by psychiatric knowledge. It is not because sex offenses are always more serious than other crimes. It is because we as society uniquely abhor what sex offenders do.
This court explored these issues in more detail in its decision in State v. Michael R. 42 Misc.3d 1222 (A) (Sup Ct, NY County 2014). Some of the analysis here is taken from that decision, without citation.
It is also notable in this case that multiple sexual offense charges against Mr. D. were dismissed on procedural grounds and that he was permitted to plead to misdemeanors for sexual assaults in which he was originally charged with far more serious conduct. Mr. D.'s first two sexual offense misdemeanor charges were both dismissed on speedy trial grounds. He was charged with first degree rape in 2016. The trial evidence indicated he forcibly raped the victim. He was permitted to plead guilty to the misdemeanor of Forcible Touching to resolve those charges. The next year he was again charged with first degree rape in a case where the trial evidence indicated he choked the victim into unconsciousness and tried to rape her. He was again allowed to plead guilty to Forcible Touching - a misdemeanor.
There are certainly valid reasons in some cases to allow defendants to plead guilty to crimes far less serious than they are initially charged with. Sexual offenses are also notoriously underreported. But had Mr. D. been convicted on multiple occasions of anything approaching the crimes he was initially charged with there might be no need for a sex offender civil management case now. He would likely still be in prison. The criminal justice system may have failed to adequately punish Mr. D. for his past crimes. But the remedy for that failure, if it occurred, is not this proceeding.
Constitutional Underpinnings of the Diagnosis Requirement
The requirement for a valid psychiatric diagnosis is rooted in the requirements of substantive due-process applicable to sex offender civil management statutes like Article 10 as reflected in the two landmark United States Supreme decisions outlining the constitutional requirements for such laws, Kansas v. Hendricks and Kansas v. Crane, 534 U.S. 407 (2002). The United States Supreme Court has held that to satisfy due-process, it is not enough that a civil management statute apply to offenders who are dangerous. "We have sustained civil commitment statutes when they have coupled proof of dangerousness with proof of some additional factor, such as a 'mental illness' or 'mental abnormality'". Kansas v. Hendricks, 521 U.S. at 358 (citations omitted).
While the Hendricks Court held that a "mental illness" was not a prerequisite for civil management, it did require some description of a respondent's mental condition which "narrows the class of persons eligible for confinement to those who are unable to control their dangerousness". Id. Thus, the Court noted, terms like "incompetency" or "insanity" had been held to satisfy the requisites of due-process in other contexts. Id. at 359. Hendricks, a pedophile, the Court held, was adequately distinguished "from other dangerous persons who are perhaps more properly dealt with exclusively through criminal proceedings". Id. at 360.
The notion that a psychiatric diagnosis was necessary to serve the essential constitutional function of distinguishing offenders subject to civil management from those who were simply dangerous was expanded in Kansas v. Crane. There the Court held, in discussing the requirement that sex offenders must lack the ability to control sexually offending behavior:
It is enough to say that there must be proof of serious difficulty in controlling behavior. And this, 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, must be sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case. 534 U.S. at 413. (emphasis added).
The emphasis is added here to point out that the Crane Court obviously presumed sex offenders subject to civil management would have some kind of valid psychiatric diagnosis, although, like the Hendricks Court, the Crane court also pointed out that legal constructs like "Mental Abnormality" need not precisely conform to psychiatric definitions. Like the Hendricks Court, the Crane Court relied on a psychiatric diagnosis to perform the essential constitutional function of distinguishing sex offenders who could be subject to civil management from dangerous but typical recidivists. As the New York Court of Appeals held in Donald DD.: "We must interpret the Mental Hygiene Law article 10 statute on the assumption that it accords with these constitutional requirements" 24 N.Y.3d at 189 (citing the above quoted passage).
The Debate About Whether Sex Offender Civil Management Statutes Are Valid
Despite Hendricks and Crane, controversy about whether sex offender civil management systems are valid remains. New York's law was most notably criticized by now Chief Judge Wilson dissenting in State v. Floyd Y., 30 N.Y.3d 963 (2017). Judge Wilson focused much of his critique on an issue this court has often written about: the impossibility of distinguishing a sex offender who has serious difficulty controlling sexually offending behavior, and can therefore be subject to Article 10, from an offender who can control his behavior but chooses not to, and therefore falls outside the statute's coverage. "The line between an irresistible impulse and an impulse not resisted is probably no sharper than that between twilight and dusk". Floyd Y., 30 N.Y.3d at 971 [Wilson J., dissenting] quoting Kansas v. Crane, 534 U.S. at 412, quoting American Psychiatric Association, Statement on the Insanity Defense (1982).
Floyd Y. was confined for 11 years awaiting a final Article 10 determination, then spent 6 years on Strict and Intensive Supervision and Treatment ("SIST") in the community before this court dismissed the petition against him over the State's objection in 2022. He was the subject of two jury trials, two appeals to the First Department and two decisions by the Court of Appeals concerning his individual case, as well as earlier Court of Appeals rulings about the class of sex offenders he was part of. In the Floyd Y., decision cited here, this court conducted a jury trial, then set-aside the jury's Mental Abnormality verdict. That decision was reversed by the First Department and the Court of Appeals affirmed the First Department's ruling in a 6-1 decision with Judge Wilson dissenting. State v. Floyd Y., 46 Misc.3d 1225 (A), rev'd, 135 A.D.3d 70 (1st Dept 2015), aff'd, Floyd Y.
Quoting the New York State Psychological Association writing to then Governor Elliot Spitzer in opposition to the enactment of Article 10 in 2007, Judge Wilson recounted:
[M]ental abnormality as defined is essentially a vague and circular determination that has no scientific or clinical basis and that usurps psychiatric terminology to achieve a social and political result. Because mental abnormality has no medical foundation, mental health professionals, including psychiatrists, have no special expertise in assessing individuals for the presence of mental abnormality as defined by the bill. Floyd Y., 30 N.Y.3d at 973 [Wilson, J. dissenting] (internal quotations, citations and punctuation omitted).
Judge Wilson summarized his own view of the statute at the end of his dissenting opinion:
Article 10's standard cannot properly distinguish between the typical recidivist of dangerous sexual crimes, for whom we have a criminal justice system, and something more. In Kansas v. Hendricks, Justice Kennedy observed: "if it were shown that mental abnormality is too imprecise a category to offer a solid basis for concluding that civil detention is justified, our precedents would not suffice to validate it." 521 U.S. at 373. It is time to admit that the emperor has no clothes. 30 N.Y.3d at 977 [Wilson, J. dissenting].
Judge Wilson also provided an extended critique of the analysis which had been provided by the State's expert in the case, a psychologist Judge Wilson opined had made similar errors in Donald DD. (in the Kenneth T. portion of the decision): Dr. Stuart Kirschner.
Portions of this Court's legal analysis here are copied or derived from the earlier decisions of this Court in State v. Kenneth W., 70 Misc.3d 831 (Sup Ct, NY County 2020) and State v. Jerome A., 67 Misc.3d 1220 (A) (Sup Ct, NY County 2020) without citations to those decisions.
Donald DD. held that ASPD alone could not serve as a sufficient Article 10 predicate in the absence of other conditions. This Court has long believed, respectfully, that Donald DD. was wrongly decided both because it is inconsistent with the Article 10 statute and because the rule that ASPD alone is an insufficient Article 10 predicate is not required to satisfy constitutional due-process. Almost from the moment Donald DD. was decided, however, courts began to significantly limit its scope because some sex offenders who are driven primarily by antisociality are also among the most dangerous. They are also, in this Court's view, among the offenders the Legislature intended to be covered under Article 10.
The legislative findings which accompanied the enactment of Article 10 nowhere allude to the kind of limitation announced in Donald DD. The Legislature, in their statement of purpose, instead focused on the need to protect the public from dangerous repeat offenders. See MHL § 10.01 ("recidivistic sex offenders pose a danger to society that should be addressed through comprehensive programs of treatment and management... some sex offenders have mental abnormalities that predispose them to engage in repeat sex offenses.... In extreme cases, confinement of the most dangerous offenders will need to be extended by civil process in order to provide them such treatment and to protect the public from their recidivistic conduct.")
Donald DD.
In Donald DD., the Court's four judge majority held "evidence that a respondent suffers from antisocial personality disorder cannot be used to support a finding that he has a mental abnormality... when it is not accompanied by any other diagnosis of mental abnormality." 24 N.Y.3d at 177. The Court noted that in Kansas v. Crane, the Supreme Court held that as a matter of substantive due-process, sex offender civil management statutes "must be sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case." 24 N.Y.3d at 189 (emphasis added in Donald DD.). The Donald DD. majority said the evidence during the trial indicated that up to 80% of persons who have been imprisoned could be diagnosed with ASPD. These statistics, the Court opined, indicated a diagnosis of ASPD alone was insufficient as a matter of constitutional due-process to distinguish sex offenders subject to civil management from ordinary recidivists.
Prior to Donald DD., the Second and Third Departments had held that an ASPD diagnosis alone was a sufficient Mental Abnormality predicate. Matter of State v. Andrew J.W., 85 A.D.3d 805 (2d Dept 2011); State v. Donald DD., 107 A.D.3d 1062 (3d Dept 2013), reversed, Donald DD. The Fourth Department had held that "personality disorders" could be a sufficient Article 10 predicate and rejected the argument that a condition under Article 10 had to include a sexual component. State v. Nervina, 120 A.D.3d 941 (4th Dept 2014) (subsequent history omitted). Courts in numerous other states have also found ASPD alone a valid predicate for sex offender civil management. Donald DD, 24 N.Y.3d at 198-199 [Graffeo, J., dissenting].
Simply because most prison inmates can be diagnosed with ASPD, however, does not mean most prison inmates could be subject to Article 10 because of such a diagnosis. As this court outlined in more detail in its decision in State v. Michael R., in a decision which preceded Donald DD., the vast majority of convicted offenders who have been diagnosed with ASPD are not even statutorily eligible for civil management. Of those who are eligible a much smaller fraction prior to Donald DD. had become subject to Article 10 and a still smaller percentage had been found to have a Mental Abnormality. Allowing ASPD alone to serve as a Mental Abnormality predicate would thus not expose 80% of the prison population to Article 10. This Court estimated in Michael R. that such a permissible sole diagnosis had served to subject less than 1/10 of 1% of the prison population to the statute. 2014 NY SlipOp at 17.
The Donald DD. majority clearly understood that only a small percentage of offenders with ASPD were subject to Article 10 but did not find this fact dispositive. See Donald DD., 24 N.Y.3d at 182-184 (discussing expert testimony on the subject).
Judge Graffeo's three judge dissenting opinion in Donald DD. asserted that "[t]he fundamental flaw [in the majority's reasoning] is that it equates a 'congenital or acquired condition, disease or disorder' with a 'mental abnormality,' thereby requiring that the predicate disorder itself inherently include the additional predisposition and impulse control elements of [Article 10]. (citation to majority opinion omitted). This interpretation directly conflicts with the language of the statute..." Donald DD., 24 N.Y.3d at 194 [Graffeo, J. dissenting]. It is also clear, in this Court's view, that as a factual matter ASPD alone can predispose a small minority of offenders with that diagnosis to commit sex offenses and result in serious difficulty in controlling such behavior. Few Article 10 experts, in this Court's experience, have expressed contrary views.
The Donald DD. majority's ruling also appeared to require that a diagnosis supporting a Mental Abnormality had to be a sexual disorder. The majority held:
Its use [that is, the use of ASPD as a predicate disorder under Article 10] in civil confinement proceedings, as the single diagnosis underlying a finding of mental abnormality as defined by Mental Hygiene Law Article 10, proves no sexual abnormality. It therefore cannot be the sole diagnosis that grounds such a finding. 24 NY at 190.
The majority favorably cited arguments by the Respondent that ASPD was not a valid Article 10 predicate because it was not a sexual disorder:
We believe that an ASPD diagnosis has so little relevance to the controlling legal criteria of [Article 10] that it cannot be relied upon to show mental abnormality... As Donald DD.'s counsel expressed the objection, ASPD is "not a sexual disorder ". Id.
* * * * *
Dr. Plaud, testifying for Donald DD., opined that while ASPD can act "in combination with... a diagnosable sexual disorder" to produce a potent abnormal condition, it cannot "in and of itself... predict sexual impulse control". Id. (emphasis added).
Psychopathy as an Insufficient Independent Predicate Under Donald DD.
Donald DD. also addressed the issue of psychopathy in a footnote which the majority inserted following their recitation that both of the State's expert witnesses had diagnosed the Respondent with ASPD:
In addition, both experts opined that Donald DD. suffered from an extreme form of ASPD known as psychopathy. However, they did not testify that this finding materially affected their conclusions regarding Donald DD.'s mental abnormality under Article 10. n. 3.
Thus, the Court found both that the psychopathy diagnosis in Donald DD., when combined with ASPD, did not result in a valid Mental Abnormality finding and that psychopathy was just "an extreme form of ASPD". That latter conclusion reflects how psychopathy is defined in the DSM-5-TR. In the period following Donald DD., as this Court outlined in its decision in State v. Jerome A., 48 Misc.3d 1229 (A) (2015), 2015 NY SlipOp 51303 (U) * 9 (Sup Ct, NY County) "[t]he clear weight of [trial court] authority... held that where a Respondent is diagnosed with ASPD and psychopathy but no sexual disorder, Donald DD. requires the petition's dismissal".
The DSM-5-TR notes that ASPD "has also been referred to as psychopathy ". p. 748.
Disavowing the "Sexual Disorder" Requirement
The initial series of judicial limitations on Donald DD. culminated in the Court of Appeals decision in State v. Dennis K. where the Court said its holding in Donald DD. had not required a sexual disorder diagnosis:
To be sure, we stated in Donald DD. that ASPD by itself "proves no sexual abnormality" but that was in the context of our observation that an ASPD diagnosis means nothing more than a person has a tendency to commit crimes. (citation omitted). As such, Donald DD. did not engraft upon the "condition, disease or disorder" prong a requirement that the "condition, disease or disorder" must constitute a "sexual disorder". 27 N.Y.3d at 743.
ASPD Legally Sufficient if the Respondent Has Another Condition
Post- Donald DD. cases also held that where a respondent had ASPD along with some other condition, that was sufficient to satisfy the Donald DD. rule. The analytic problem is that every respondent with ASPD can be assigned some additional descriptor relevant to sexual offending. Offenders can have other diagnoses, but can also be described as suffering from psychopathy, being "sexually preoccupied", having a deviant sexual arousal to non-consent, sadism or other abnormal preferences or suffering from alcohol or substance use disorders which promote sexual offending. Determining which such descriptors are sufficient under Donald DD. has never been clear.
Appellate division cases following Donald DD. have often upheld Mental Abnormality judgments where a respondent had ASPD plus some "condition" which did not rise to the level of a diagnosis. Donald DD. found the respondent's diagnosis of ASPD invalid even though he had also been assigned the condition of psychopathy. In State v. Jerome A., this Court, in an extended opinion, dismissed an Article 10 petition after a probable cause hearing. This court's determination was based both on the fact that the diagnosis by the State's sole expert witness, Dr. Charder, that Mr. A. had ASPD and psychopathy was the same diagnosis rejected as not meeting Article 10 requisites by the Court of Appeals in Donald DD. and because this court did not find Dr. Charder's testimony otherwise credible or sufficient to establish a Mental Abnormality.
This Court faulted Dr. Charder (a psychologist) for relying on speculative "brain scan" evidence (not involving Mr. A.) to support her contention that he suffered from a Mental Abnormality. This Court also outlined how Dr. Charder had testified that Mr. A.'s psychopathy provided him with greater volitional control than offenders with ASPD and negated Article 10's "serious difficulty" requirement. 2015 NY SlipOp at 12-14.
In State v. Jerome A., 137 A.D.3d 557 (1st Dept 2016), however, the First Department reversed this Court's dismissal. The Court held that "issues concerning the viability and reliability of the respondent's diagnosis are properly reserved for resolution by the jury unless the respondent's evidence is deficient" and "the expert's testimony at the [probable cause] hearing was not so deficient as to warrant dismissal of the petition at this early juncture" (citations omitted). The Court also held that because the State proffered the diagnosis of ASPD plus psychopathy, rather than ASPD alone, the evidence was legally sufficient under Donald DD.
Jerome A. had a tortured history after the First Department's decision. On remand this court conducted an extended Frye hearing on whether the State's diagnosis of Unspecified Paraphilic Disorder ("USPD") was generally accepted. In State v. Jerome A., Nicholas T. & Gary K, 58 Misc.3d 1202 (A) 2017 NY SlipOp 51762 (U) (Sup Ct, NY County 2017) , this Court held that USPD was generally accepted. In State v. Hilton C., 158 A.D.3d 707 (2nd Dept 2018), however, the Second Department held that USPD was not a generally accepted diagnosis. This Court then reversed its determination to conform to that controlling ruling. Jerome A. then proceeded to a bench trial before a different judge who determined Mr. A did not have a Mental Abnormality. In State v. Jerome A., 172 A.D.3d 446 (1st Dept 2019), however, the First Department reversed that verdict. It held USPD was a generally accepted diagnosis and since this court had precluded it, the verdict finding Mr. A. did not suffer from a Mental Abnormality had to be reversed. This Court then conducted a bench trial, where it found Mr. A. did suffer from a Mental Abnormality, even though this court rejected the State's USPD diagnosis at the trial - the diagnosis whose absence was the sole basis for the First Department's second reversal. After being confined for about 6 years awaiting a final determination, Mr. A. was placed on SIST by this court in 2021.
ASPD Plus Hypersexuality Insufficient Mental Abnormality Predicates
As noted supra, the court did not credit Dr. Kirshner's assignment of the condition of "hypersexuality" in this case. Even if it had, however, the result here would be the same. In Christopher PP. v. State, 151 A.D.3d 1334 (3d Dept 2017), lv. denied 30 N.Y.3d 903 (2017), the Court ruled that the State's experts' diagnoses of ASPD and "sexual preoccupation" were legally sufficient. Summarizing the testimony of the two state experts, the Court said:
Prince characterized sexual preoccupation as a "condition" noting that it was not included in the [DSM] because it was "very difficult" to operationally define what would constitute such behavior. Hadden referred to sexual preoccupation as a "behavioral condition," a "behavioral pattern," as well as a "long-term vulnerability"..." 151 A.D.3d at 1337, quoting testimony of Dr. Alison Prince.
The State's experts outlined how sexual preoccupation impacted ASPD. The Respondent's expert, Dr. Schlosser, said sexual preoccupation was a "cognitive or thought process" but not a "condition, disease or disorder" because there was "no diagnosis or criteria" for it. The Court outlined the Respondent's history of sexual offending and noted the State's experts' conclusion that sexual preoccupation was a "condition".
The First Department reached a contrary conclusion, however, in State v. Gen C., 128 A.D.3d 467 (1st Dept 2015). In Gen C., the Court found ASPD plus "hypersexuality/sexual preoccupation" were legally insufficient Mental Abnormality predicates. The Court found that "hypersexuality/sexual preoccupation" was not an "independent mental abnormality diagnosis" or "an independent mental abnormality". The Court held that, at most, "hypersexuality/sexual preoccupation" was a "recognized mental condition" but did not satisfy Article 10's predisposition and serious difficulty elements. In a very brief decision in State v. Kenneth W. 131 A.D.3d 872 (1st Dept 2015) the First Department likewise held that a rational fact-finder "could not conclude that sexual preoccupation is an independent mental abnormality" when combined with an ASPD diagnosis and that the judgment against the respondent had to be vacated as a result. This court is obviously bound to follow the First Department's rulings on this issue. ASPD plus hypersexuality together do not constitute a valid condition, disease or disorder under Article 10.
The "Strong" or "Particular Tendency" Sexual Component Rule
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. see also State v Anthony B., 180 A.D.3d 688, 690-691 (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 (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". Citing Donald DD. (emphasis added; additional citation omitted) . Unlike the "ASPD plus something else" rulings, these formulations attempted to articulate a principle which defined the conditions which might satisfy the diagnostic predicate requirement.
The "strong sexual component" rule presumes that what must be sexual in order to constitute a Mental Abnormality is not only a respondent's predisposition or serious difficulty, but his underlying diagnosis. It is not clear, however, how a non-sexual disorder diagnosis' sexual component "strength" should be measured, apart from an offender's behaviors. Such gradations are not part of any psychiatric lexicon. The related formulation, that in order to be legally sufficient, a non-paraphilic diagnosis must "suggest a particular tendency to commit a sex offense" is also, in this Court's view, subject to the same practical behavioral evidence requirement. The first question regarding the "particular tendency" test is what the phrase means. It apparently means that the diagnosis must have some measure of a unique (hence "particular") tendency to cause sexual offending when compared to other diagnoses. This, at least, answers the question of what a diagnosis' "sexual strength" must be compared to.
The root problem with these formulations is the same one Judge Graffeo identified in her Donald DD. dissenting opinion: the flawed enterprise of taking the statute's "predisposition" and "serious difficulty" prongs and attempting to import them, contrary to the statute's language, into the definition of a "condition, disease or disorder". Thus, in each case, the "strength" or "particularity" of a diagnosis' sexual component is determined not primarily by the definition of the disorder. BPD, the diagnosis which was found sufficiently strong in Dennis K., and NPD, the diagnosis found sufficiently strong in Anthony B., were found to have that strength not primarily because of the diagnoses themselves. A person with BPD or NPD, like a person with ASPD, may have that disorder manifest by sexual offending or may have never committed a sex crime. Indeed, while the DSM-5-TR outlines how ASPD may be manifested by dysfunctional sexual conduct, such sexual problems are not even mentioned as manifestations of NPD.
According to the DSM-5-TR, persons with ASPD "may also be irresponsible and exploitive in their sexual relationships. They may have a history of many sexual partners and may never have sustained a monogamous relationship". DSM-5-TR, p. 750; compare DSM-5-TR at p. 760-764 (defining the features of NPD without any mention of sexual dysfunction). Judge Rivera, dissenting in Dennis K., noted that some studies had suggested that the prevalence of BPD in the prison population was 25-50%, raising the same issues the Court found dispositive in rejecting ASPD in Donald DD. 28 N.Y.3d at 755.
These conditions became "strong" sexual disorder diagnoses only because of the respondent's behaviors, the degree to which the respondent was predisposed and had serious difficulty controlling sexual offending. Once imported into a non-sexual offense diagnosis, an offender's behaviors, if egregious enough, then justify whatever diagnostic predicate the State presents (other than ASPD). These formulations have served to effectively neutralize Donald DD. in the vast majority of cases without formally overruling it. Virtually every offender can be described as having some diagnosis or condition in addition to ASPD. As long as that something exists in a sexual offender who poses a significant enough threat to the community, it can often be validly described as having a "strong" or "particular" sexual component. Substance and alcohol use disorders are a particularly fertile ground routinely used to justify sex offender civil management for offenders whose primary diagnosis is ASPD. It has been estimated that 85% of the United States prison population either has a substance use disorder or was under the influence of drugs or alcohol at the time of their crimes.
National Institute on Drug Abuse: Criminal Justice DrugFacts, June, 1, 2020.
The final technical problem is the literal requirement that there be" another diagnosis that suggests a particular tendency to commit a sex offense as defined by the statute". (State v. Timothy R., emphasis added). This rule appears to require that the "particular tendency" must not emanate from ASPD. It must arise elsewhere. The problem is that sexual offending behaviors in reality are rarely confined within discrete diagnostic baskets. They arise from the offender's entire personality structure, including, where applicable, ASPD.
ASPD Plus Psychopathic Traits
The ultimate question in this case was whether the diagnosis and condition the court credited - ASPD plus psychopathic traits - was a sufficient Article 10 Mental Abnormality predicate. On that question two appellate cases are directly applicable. The first is State v. Ronald S., 186 A.D.3d 1227 (2nd Dept 2020). In Ronald S., the trial court initially denied the Respondent's request to conduct a Frye hearing on whether the diagnosis of Other Specified Paraphilic Disorder - Non Consent had achieved general acceptance in the psychiatric community and found the Respondent had a Mental Abnormality under Article 10. The Second Department found the denial of the Frye hearing error. It remitted the case to the trial court which then conducted a Frye hearing and found the diagnosis was not generally accepted. The Second Department agreed with this finding and reversed the judgment, since it held the admission of the now incorrect diagnosis invalidated the trial court's verdict.
The Second Department found that in addition to the voided diagnosis, the Respondent had been diagnosed with ASPD, and "personality disorder not otherwise specified, with antisocial and borderline traits". 186 A.D.3d at 1229. The assignment of ASPD and a personality disorder not otherwise specified "with antisocial and borderline traits" was similar to the diagnosis and condition the court credited here: ASPD plus psychopathic traits. Without otherwise explaining its ruling on the point, the Second Department held: "ASPD, by itself, is insufficient to establish mental abnormality as defined by the statute. (citations omitted). Additionally, the diagnosis of personality disorder not otherwise specified, with antisocial and borderline traits, is insufficient to establish a mental abnormality as defined by the statute". Id., (citation to the statute omitted).
The second relevant case is Suggs v. New York State Office of Mental Health, 142 A.D.3d 1283 (4th Dept 2016). In Suggs, the Fourth Department reversed a directed verdict finding the Respondent did not suffer from a Mental Abnormality at a confinement annual review hearing. Suggs was diagnosed with ASPD plus "psychopathic traits". The trial court directed a verdict for the Respondent since, pursuant to Donald DD., Suggs had never been diagnosed with a sexual disorder. The Court of Appeals in Dennis K. then said that Donald DD. had not required a sexual disorder diagnosis. The Fourth Department reversed the trial court's ruling for that reason. What the Fourth Department did not address, however, was the sufficiency of the Respondent's remaining diagnosis and condition. The Fourth Department remanded the case to the trial court for further proceedings.
This court presided over the Suggs Mental Abnormality jury trial. The verdict in the case was affirmed by the First Department and the Court of Appeals (in a 4-3 decision). State v. Suggs, 104 A.D.3d 511 (2013); aff'd, 23 N.Y.3d 326 (2014).
In Suggs, the Respondent had the same diagnosis and condition the court credited here: ASPD plus psychopathic traits. However, the Fourth Department ruled only on the question of whether a directed verdict was proper and, in addition, ruled only on whether that verdict was proper based on the trial court's conclusion that the Respondent had not been diagnosed with a sexual disorder. It then remanded the case to the trial court for further proceedings. The Suggs court did not reach the issue the court considered here: whether a diagnosis of ASPD plus psychopathic traits is a sufficient Article 10 predicate.
The annual review hearing trial court in Suggs later construed the ruling as providing that a diagnosis of ASPD plus psychopathic traits was a sufficient Mental Abnormality predicate, but in a case where the Respondent had psychopathy - not only psychopathic traits. Glen T. v. State, 59 Misc.3d 1219 (A) (Sup Ct, Oneida County 2016). As the same judge observed in a different case, moreover, "[t]he Fourth Department has made clear over time that directed verdicts at the close of the State's proof in an annual review proceeding under MHL Article 10 [what occurred in Suggs ] are disfavored". Richard R. v. State, 59 Misc.3d 94, 948 (Sup Ct, Oneida County 2018) (citing Suggs; additional citation omitted). This court does not believe the Suggs decision can be read as holding that ASPD plus psychopathic traits are a sufficient Mental Abnormality predicate. Presuming the court did so hold, however, for the reasons outlined next the court believes the Second Department's essentially contrary conclusion in Ronald S. is the correct one.
The Significance of "Psychopathic Traits"
As noted supra, although the Court of Appeals in Donald DD. found the diagnosis of ASPD along with psychopathy was not a legally sufficient "condition, disease or disorder" under Article 10, subsequent Appellate Division cases have found ASPD plus psychopathy are legally sufficient Mental Abnormality predicates. In this case, however, none of the experts assigned the condition of psychopathy. To the contrary, Dr. Eisenstein-Rosan scored the PCLR and concluded the condition of psychopathy could not be applied. Rather, in scoring the PCLR, Dr. Eisenstein-Rosan found that Mr. D. had a moderate to high degree of "psychopathic traits".
Psychopathic traits are not a diagnosis. Dr. Eisenstein-Rosan testified that "there is no criteria for [psychopathic] traits". Id., p. 131. She said she "might" assign a person with psychopathic traits if he had a moderate degree of psychopathy. It would depend on whether the traits were "very prominent in the personality". Id., p. 133. An offender with ASPD will also be expected to have psychopathic traits. The PCLR is divided into four "facets" with the antisocial facet being the fourth and including five scoring items. Dr. Eisenstein-Rosan scored Mr. D. with 8 points under this facet which was the highest score she gave for a facet. It is not clear to this court, however, why the assignment of psychopathic traits in the antisocial facet of the PCLR would say anything about Mr. D. other than that he manifested characteristics consistent with Antisocial Personality Disorder. Moreover, absent those 8 points, it would appear that the psychopathic traits descriptor might not have been given.
Dr. Shields testified that psychopathic traits are inherent in ASPD. He said that across the nation, about 75% of incarcerated persons meet the criteria for ASPD. Of those, about one third meet the criteria for psychopathy, since they score 30 points or more on the PCLR. In the alternative model for ASPD [in the DSM], he testified, items from the PCLR are actually taken as criteria for ASPD. He said that assigning both ASPD and psychopathic traits was" a way to get around some of the case law restrictions on antisocial personality disorder alone". Transcript, p. 60. The overlap, definitional unclarity and fungible criteria for conditions like ASPD, NPD, psychopathy and psychopathic traits were on vivid display in this case. Dr. Kirschner described Mr. D. as an "antisocial narcissist" which he said was equivalent to the condition of psychopathy [although, not the condition of psychopathy]. He said the PCLR score Dr. Eisenstein-Rosan assigned on the PCLR did not make Mr. D. a psychopath but that it was a "fairly high" score. Id., p. 19. He said it was his practice not to score the PCLR without an interview and agreed that the mean PCLR score for persons with ASPD was in the 20's.
Allowing a respondent to be subject to Article 10 because he had ASPD plus "psychopathic traits" would thus allow an offender to be subject to potential lifetime confinement based on a criteria: "psychopathic traits" which the State's own expert in this case testified had no criteria. It overlaps to a significant degree with the diagnosis of ASPD itself. In this case, given the 8 points Dr. Eisenstein-Rosan scored on the antisocial facet of the PCLR, it is not clear Mr. D. could even have been assigned the condition of psychopathic traits for characteristics which were not also subsumed in the definition of ASPD.
There is also not evidence that a diagnosis of ASPD with psychopathic traits, rather than ASPD alone, for a person like Mr. D. who does not have a deviant sexual interest increases the risk of recidivism. See William J. v. State, 56 Misc.3d 1206 (A), n. 2 (Sup Ct, Oneida County 2015), aff'd 151 A.D.3d 1890 (4th Dept 2017) (the fact that respondent had psychopathic traits does "not add much to the analysis of whether he suffers from a 'mental abnormality' as he does not have enough of such traits to be considered psychopathic"); John P. v. State, 64 Misc.3d 381, 385 (Sup Ct, Oneida County 2019) ("although the presence of a psychopathic personality style is not independently associated with sexual offending, elevated levels of psychopathic traits increase the risk of sexual reoffending among individuals who are identified as having some type of sexual deviance ") (quoting the testimony of Dr. Barry Rosenfeld) (emphasis added); State v. Kevin J., 48 Misc.3d 492, n. 6 (Sup Ct, Kings County, 2015) (same).
Dr. Eisenstein-Rosan agreed that for persons convicted of rape in prison the mean (or average) PCLR score under the "standard" measure was 25.5. Under the "file review" the average was 21.3. [It was not clear during the testimony what the difference between the "standard" and "file review" categories were]. Thus the PCLR score Dr. Eisenstein-Rosan found for Mr. D. [25.3] was virtually identical to the average score using the "standard" criteria for men in prison who were convicted of rape. Dr. Kirschner relayed a similar conclusion. The State's evidence did not prove Mr. D. differed from the ordinary recidivist and was therefore appropriate for sex offender civil management. It proved the opposite. The State's evidence proved Mr. D. was the prototype of" the dangerous but typical recidivist convicted in an ordinary criminal case." Donald DD, . 24 N.Y.3d at 189.
Explaining Mr. D.'s Crimes
All of the experts in this case provided important insights into why Mr. D. has sexually offended. Drs. Eisenstein-Rosan and Kirschner both described the impetus for Mr. D.'s crimes using the familiar Article 10 language of volitional control, a lexicon which first identifies psychiatric pathologies and then posits that they cause an offender to have serious difficulty controlling sexually offending behavior. Analogies to the momentum of physical bodies abound in such descriptions. Mr. D. was unable to control his impulses. Dr. Eisenstein-Rosan opined that "once he [Mr. D.] is set on his path, he kind of goes - it is automatic. He is just going to do what he does until something stops him in his tracks." Id. p. 47. Both of the State's experts also transcended these familiar descriptors and provided more in-depth analyses. Dr. Eisenstein-Rosan opined that Mr. D. uses sex to cope and that it improves his self-esteem when he feels bad. The need to relieve negative feelings might push him to commit sex offenses. She explained how the causes of Mr. D.'s offenses were multi-dimensional.
In the court's view, however, Dr. Shields provided the best explanation for Mr. D.'s crimes. They did not primarily arise from psychiatric pathology. He said Mr. D. had modeled his behavior on the extraordinary and consistent extent to which he saw women and girls, including prostitutes, his mother and his sisters being abused in his home when he was growing up. This obviously does not excuse his behavior. Mr. D.'s victims are not any less traumatized because his only valid psychiatric diagnosis is ASPD. Since that is his only psychiatric diagnosis, however, he cannot be subject to Article 10.
For all of those reasons, the court holds that the State did not prove by clear and convincing evidence that the Respondent Jeremiah D. suffered from a Mental Abnormality. The petition is thereby ordered to be dismissed. This Decision and Order shall be stayed until September 16, 2024 to allow the State time to seek a stay pending appeal from the First Department if they choose to do so. This constitutes the Decision and Order of this court.