Opinion
3313/2019
08-13-2020
In the Matter of the STATE of New York, Petitioner, v. SHANNON C., Respondent.
New York State Office of the Attorney General, by Assistant Attorney General Elisabeth Prael, Esq., for New York State Michael D. Neville, Director, Mental Hygiene Legal Service, Second Department, by Lisa M. McCabe, Esq. for Respondent Shannon C.
New York State Office of the Attorney General, by Assistant Attorney General Elisabeth Prael, Esq., for New York State
Michael D. Neville, Director, Mental Hygiene Legal Service, Second Department, by Lisa M. McCabe, Esq. for Respondent Shannon C.
Miriam Cyrulnik, J.
Respondent, Shannon C., is the subject of a Petition for Sex Offender Civil Management pursuant to Article 10 of the Mental Hygiene Law (hereinafter MHL). By motion dated May 29, 2020, respondent moves for an order:
1) Precluding all expert testimony regarding the diagnosis of Other Specified Disorder, Hebephelia or, in the alternative, granting a hearing pursuant to Frye v. United States , 293 F 1013 (DC Cir 1923), on the issue of its admissibility;
2) Precluding all expert testimony regarding the stand-alone condition of Hypersexuality or, in the alternative, granting a hearing pursuant to Frye v. United States (id. ) on the issue of its admissibility; and
3) Precluding all expert testimony on the provisional diagnosis of Frotteuristic Disorder.
By Affirmation in Opposition, dated July 3, 2020, petitioner represents that the State will not proffer the diagnosis of Other Specified Paraphilic Disorder, Hebephilia at trial, rendering the issue moot for purposes of this motion. The State opposes the remainder of respondent's motion as it pertains to Hypersexuality and Frotteuristic Disorder. Respondent submitted a Reply Affirmation dated July 14, 2020.
Petitioner commenced the present MHL Article 10 proceeding by the filing of an Order to Show Cause and Petition in Oneida County on August 12, 2019. Petitioner's motion included the report of Dr. Hannah L. Geller, a psychologist licensed by the State of New York and a psychiatric evaluator, employed by the New York State Office of Mental Health. After reviewing respondent's relevant records and interviewing him, Dr. Geller made the following diagnoses, relying upon the Diagnostic and Statistical Manual of Mental Health Disorders, Fifth Edition (hereinafter DSM-5):
1) Pedophilic Disorder, Non-Exclusive, Male, Controlled Environment
2) Other Specified Paraphilic Disorder, Hebephilia, Male, Controlled Environment
3) Frotteuristic Disorder, Controlled Environment, Provisional
4) The condition of Hypersexuality, Controlled Environment
Respondent, by his counsel, waived his right to a probable cause hearing pursuant to MHL § 10.06(k) and sought removal to Kings County, the county of conviction for the relevant sexual offenses. On August 19, 2019, a Justice of the Oneida County Supreme Court found probable cause to believe that respondent is a detained sex offender requiring civil management and granted removal to Kings County.
According to the procedural histories provided by petitioner and respondent, respondent's criminal history is as follows:
1) On December 11, 1997, respondent pled guilty to Sexual Abuse in the First Degree for an incident in which he rubbed his exposed penis on a nine year old boy. He was sentenced to a term of imprisonment of 1½ to 3 years.
2) On March 11, 2002, respondent pled guilty to Public Lewdness for an incident in which he was found masturbating in a car while observing two young boys. He was sentenced to one year of probation.
3) On July 15, 2005, respondent pled guilty to Attempted Criminal Mischief (degree unknown) and failure to report a change of address or status within ten days as a sex registered sex offender ( Correction Law § 168[f][4] ). He was sentenced to a jail term of 65 days.
4) On March 7, 2006, respondent pled guilty to Possession of a Sexual Performance of a Child Under the Age of Sixteen. He was sentenced to a term of imprisonment of ½ to 3 years.
5) On February 10, 2011, respondent pled guilty to Endangering the Welfare of a Child and Public Lewdness for an incident in which he was found masturbating in a park while watching playing children. He was sentenced to a jail term of nine months.
6) On March 24, 2017, respondent was convicted of Promoting a Sexual Performance of a Child Under Seventeen. He was found in possession of 16 photographs of young boys engaged in sexual acts. Respondent admitted to downloading the images from the Internet. He was sentenced to a term of imprisonment of 3 years, with 15 years of post-release supervision.
The imminent expiration of this term of imprisonment triggered the instant MHL Article 10 proceeding.
As a threshold matter, the court will address three of petitioner's claims, the rejections of which do not require extensive discussion.
First, petitioner's contention that respondent must establish the novelty of the principle or theory he claims is not generally accepted in the relevant community is over broad and unsupported in the case law. Although it is intuitive that a concept which is truly novel cannot claim general acceptance, it does not necessarily follow that a specific principle or theory must be novel in order to be subject to analysis to determine if it is generally accepted. The court finds unpersuasive the case law relied upon by petitioner to support this argument.
Second, petitioner argues, generally, that a Frye hearing is not the proper venue to test an expert's conclusions. Specifically, petitioner contends that the diagnosis of a psychologist is not subject to a Frye hearing. Petitioner relies upon a single New York case and several out-of-state cases to support this argument.
In Matter of State of New York v. Ronald S. , 2015 NY Misc LEXIS 365 (Sup Ct Nassau County 2014), the trial court denied respondent's motion for a Frye hearing on the diagnosis of Paraphilia NOS. The court reasoned that "[t]he science under question in the present case is the science of psychology and psychiatry. Neither is novel and both methodologies are generally accepted as reliable within the scientific/medical community" (id. at *6). However, on appeal, the Appellate Division held its decision in abeyance, and remitted the case to the trial court for a Frye hearing on the issue of whether Paraphilia NOS was generally accepted within the psychological and psychiatric communities (see Matter of State of New York v. Ronald S. , 2017 NY Slip Op 82318[U][2d Dept 2017] ). This, and a multitude of other appellate decisions ordering Frye hearings, clearly establish that psychological and psychiatric diagnoses are routinely subject to Frye analysis in New York.
This court has considered the out-of-state case law relied upon by petitioner and respectfully declines to adopt it in the case at bar.
Third, petitioner argues that a Frye hearing is unwarranted where a respondent waives a jury. This assertion must fail. As petitioner is well aware, Frye hearings are routinely held in MHL proceedings for which there is no right to a jury, such as annual reviews under MHL §§ 10.09(d) and (h). Even if petitioner had cited relevant authority in support of this position, the fact remains that, to date, respondent has not waived his right to a jury trial. While the court is aware that it is common for MHL Article 10 trials to be conducted under jury waivers, it cannot base its determination on speculation that respondent will execute such a waiver.
Respondent points out that the State has sought Frye hearings in annual review proceedings.
Hypersexuality
Respondent objects on two grounds to the admission of expert testimony regarding the stand-alone condition of hypersexuality. First, he argues that hypersexuality, as a stand-alone condition, does not meet the constitutional requirements to support a finding of mental abnormality. Second, he argues that hypersexuality is not generally accepted by the relevant scientific community and, if the court declines to immediately preclude expert testimony about it, a Frye hearing should be ordered. The court will address the issue of general acceptance first.
In the case at bar, Dr. Geller assigned the condition of Hypersexuality (Controlled Environment) to respondent. She defined the condition as follows:
Hypersexuality is listed in the comorbidity sections of several DSM-5 paraphilic disorders as a condition and in the Glossary of Technical Terms. In the DSM-5's Glossary of Technical Terms, hypersexuality is defined as "a stronger than usual urge to have sexual activity." Professional clinicians and researchers understand this definition to mean that the person has more frequent and/or more intense sexual urges, behaviors, or fantasies that just like paraphilic conditions "cause distress or impairment in social, occupational, or other important areas of functioning, involve non-consenting victims, and/or result in legal sanctions." Synonyms for hypersexuality include sexual preoccupation.
(New York State Article 10 Evaluation Report, Dr. Hannah Geller, July 24, 2019, page 32, [respondent's Exhibit A] ).
As noted in Dr. Geller's evaluation, respondent reported "early and high intensity of sexual activity, with onset around the age of 11 (when he reportedly started having sex with his sister)" (id. ). His sexual activity continued with peers at the schools and institutions in which he was placed after his sister accused him of forcing her to engage in sexual intercourse (id. ). Dr. Geller also noted respondent's five criminal convictions for sexually inappropriate behavior and the fact that respondent reported additional incidents for which he was not charged or convicted (id. ). Respondent described his "addiction" to masturbation and sex and acknowledged that it negatively impacted key aspects of his life (id. ). At the time of his evaluation by Dr. Geller, respondent continued to be interested in a variety of sexual partners (id. ). While participating in a sex offender treatment program, respondent reported a reduction of sexual thoughts to 30 - 40 per cent of the day, which Dr. Geller indicated is "still substantial" (id. ). Finally, respondent was suspended from sex offender treatment for sexually inappropriate behavior (id. ).
Dr. Geller found that "Mr. [C]'s sexual conduct prior to his incarceration, patterns of his sexual liaisons, sex crimes [sic] indicate hypersexuality and/or preoccupation with sex" (id. ) In concluding that respondent suffers from a mental abnormality, Dr. Geller stated that "[h]ypersexuality in combination with his paraphilic disorders predisposes him to the commission of conduct constituting a sexual offense" (id. at 33).
Frye long ago established that expert testimony must be based upon a scientific principle or discovery that has gained general acceptance in the specific field (see, e.g. People v. Williams , 35 NY3d 24, 37 [2020] ; People v. Wesley , 83 NY2d 417, 422 [1994] ). In setting out that standard, the Frye court observed:
Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define..... [W]hile courts will go a long way in admitting expert testimony deduced from a well-organized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.
( 293 F at 1014 ).
"[T]he test is not whether a particular procedure is unanimously indorsed [sic] by the scientific community, but whether it is generally accepted as reliable" ( People v. Middleton , 54 NY2d 42, 49 [1981] ). "The focus of the inquiry in such an instance should not be upon how widespread the theory's acceptance is, but should instead consider whether a reasonable quantum of legitimate support exists in the literature for the expert's views" ( March v. Smyth , 12 AD3d 307, 312 [1st Dept 2004] ). "The Frye test emphasizes ‘counting scientists' votes,’ rather than on verifying the soundness of a scientific conclusion" (Wesley , supra at 439 [internal citations omitted] [Kaye, Ch. J., concurring] ).
"The party challenging the introduction of testimony based upon scientific principles has the initial burden of coming forward with information that makes a prima facie showing that the testimony rests upon a novel theory that is not generally accepted within the relevant scientific community" ( Santos v. State Farm Fire and Cas. Co. , 28 Misc 3d 1078, 1079 [Sup Ct Nassau County 2010] ). "The burden then shifts to the proponent of the evidence to show by a fair preponderance of the credible evidence that there is sufficient general acceptance of its reliability" (id. ) (see also Williams, supra at 37, quoting Sean R. v. BMW of N. Am., LLC , 26 NY3d 801, 809 [2016] ).
"The general acceptance of novel scientific evidence such as a psychological syndrome may be established through tests and scholarly articles on the subject, expert testimony, or court opinions finding the evidence generally accepted in the relevant scientific community" ( People v. Wernick , 215 AD2d 50, 52 [2d Dept 1995] ).
"A court is only required to conduct an inquiry concerning general acceptance, pursuant to Frye , in situations in which a party seeks to rely upon novel, scientific, technical or other concepts involving expertise" ( Matter of Seventh Jud.Dist. Asbestos Litig. , 9 Misc 3d 306, 311 [Sup Ct Wayne County 2005] ). "A court need not hold a Frye hearing where it can rely upon previous rulings in other court proceedings as an aid in determining the admissibility of proffered testimony" ( People v. LeGrand , 8 NY3d 449,458 [2007] ; but see Williams , supra at 38-40 [trial court erred in failing to hold a Frye hearing on the admissibility of low copy DNA evidence, relying instead on a hearing conducted by a judge of concurrent jurisdiction where hearing was ultimately found lacking] ).
The court's research confirms the conclusions of both petitioner and respondent that, at the present time, there exists no appellate precedent specifically addressing whether the stand-alone condition of hypersexuality has been generally accepted in the psychological and psychiatric communities. However, in addition to its own research, the court has reviewed all the materials attached to the submissions of the parties, which include expert affidavits, multiple scholarly articles and relevant case law from New York, out-of-state, and federal jurisdictions. Based upon the relevant information available to the court at this time, the court finds that the stand-alone condition of hypersexuality is generally accepted within the psychological and psychiatric communities.
The court relies upon three decisions of courts of concurrent jurisdiction in reaching its conclusion regarding hypersexuality. In Matter of State of New York v. Daryl W. (Sup Ct Dutchess County, October 13, 2015, Forman, J., Index No. 1524/14), Justice Peter Forman denied the respondent's motion to preclude expert testimony on the condition of hypersexuality, citing to a number of Appellate Division cases that recognized it, to varying degrees and with varying outcomes.
The cases cited by Justice Forman did not address whether hypersexuality is generally accepted, but, within the contexts of the respective decisions, clearly regarded it as relevant without questioning its acceptance.
In Matter of State of New York v. Ian I. (Sup Ct Dutchess County, February 6, 2020, Index No. 0320/18), Justice Forman held a Frye hearing on the issue of whether the condition of hypersexuality is generally accepted in the relevant psychiatric and psychological communities. Over the course of a three day proceeding, Justice Forman heard from three experts, two for petitioner, who testified that the condition is accepted, and one for the respondent, who testified that it is not. The court concluded, based upon its consideration of the expert testimony and relevant case law, that the condition of hypersexuality is generally accepted in the relevant psychiatric and psychological communities and denied the respondent's motion to preclude (id. at 6).
The Ian I. court cited two decisions in support of its conclusion. One is Matter of State of New York v. Victor H. (discussed infra ). The second is Matter of Fernando L. v. State of New York , Sup Ct Oneida County, May 6, 2019, Merrell, J., Index No. CA2016-002179, where, after a Frye hearing, the court similarly concluded that hypersexuality was generally accepted as a construct or condition (but not generally accepted as a mental disorder or diagnosis).
Of particular significance is the decision in Matter of State of New York v. Victor H. , 59 Misc 3d 1204(A) (Sup Ct Kings County 2018). In this case, Justice Dineen Riviezzo also conducted a Frye hearing examining the condition of hypersexuality. The hearing, which was held over seven days between March and June of 2016, included four experts, two for petitioner and two for the respondent (id. at *4). Exhibits admitted at the hearing included peer reviewed journal articles, risk assessment instruments and various treatment scales (id. at *12). After hearing the experts' testimony and considering all the materials in evidence, the court, in a lengthy decision, found that the State had "met its burden in this Frye hearing to show that the condition of hypersexuality is generally accepted in the relevant psychological community" (id. at *18).
The court notes that one of Victor H. 's experts was Dr. Leonard Bard, whose expert affidavit is attached to the instant respondent's motion as Exhibit B.
Respondent, taking a single analogy from the decision out of context, implores this court to disregard Victor H. in its entirety. The court declines to do so, finding it difficult to imagine that the issue could be handled more thoroughly than it was by Justice Riviezzo.
Absent appellate authority on the issue of the condition of hypersexuality, respondent relies upon Matter of State of New York v. Hilton C. , 158 AD3d 707 (2d Dept 2018). In that case, which addressed the general acceptance of the DSM-5 diagnosis of Unspecified Paraphilic Disorder, the court held that, in order for a diagnosis to be generally accepted, a court must consider whether the diagnosis has a clear definition; whether there is research demonstrating the reliability of the diagnosis; and whether there is published research, clinical trials, or field studies regarding the diagnosis ( id. at 709 ).
Respondent claims that although the Hilton C. decision was handed down before the written decision in Victor H. was published, the Victor H. court failed to consider these factors in finding the condition of hypersexuality to be generally accepted. Respondent further claims that had the Hilton C. factors been considered in Victor H. , the court could not have ruled as it did and, therefore, that decision cannot be relied upon to deny a Frye hearing in the case at bar. This court disagrees.
While it is correct that the Hilton C. case is not cited in the Victor H. decision, even a cursory reading of Victor H. reveals that the Hilton C. factors were meticulously addressed. The court will briefly address the Hilton C. factors, as they were considered by the Victor H. court.
The definition of the condition of hypersexuality, as it appears in the DSM-5, and how it is understood in the relevant psychiatric and psychological communities, was addressed in Victor H. Indeed, the decision contains a section entitled "Definition of the Condition of Hypersexuality Offered by the State" (Victor H., supra at *8). According to the testimony of experts from both sides, it was established that there exists a definition of the condition of hypersexuality that goes beyond the one found in the Glossary of Technical Terms. Based upon the experts' testimony the court determined that the definition of the condition of hypersexuality accepted within the relevant psychiatric and psychological communities is " ‘a stronger than usual urge to have sexual activity’ that an individual has difficulty controlling, or that causes distress or functional impairment or results in legal sanctions" (id. at *7).
The Victor H. court next addressed whether there is research demonstrating the reliability of the condition of hypersexuality. The court recited the long history of the condition, which dates to the mid-nineteenth century. It considered multiple scholarly articles, the risk assessment instruments that include hypersexuality as a factor, and the testimony of the experts. The court ruled that, taken together, they established that "the core concepts defining the condition are the same" (id. at *12) and that "[t]he debate over the varying symptoms or ways that the condition manifests itself, such as the frequency with which one masturbates or watches pornography or engages in intercourse, simply does not affect the general acceptance of the core concept that defines hypersexuality" (id. ).
The issue of whether there exists published research, clinical trials, or field studies regarding the diagnosis is addressed throughout the Victor H. decision. The court considered and consistently cited the opinions of the experts and the volumes of literature admitted into evidence as they pertained to the many forms of research into the condition of hypersexuality. While the court conceded that differences of opinion on the subject continue to exist, the evidence left no doubt that the condition of hypersexuality is recognized and accepted in the relevant psychiatric and psychological communities.
In addition to the issues requiring the opinions of the experts, the Victor H. decision also pointed out some simple facts regarding the condition of hypersexuality that support its acceptance within the relevant psychiatric and psychological communities. For instance, all the experts who testified conceded that hypersexuality is something they regularly encounter and treat in their professional practices. Additionally, the condition of hypersexuality is recognized in health insurance billing codes throughout the United States. And significantly, aside from being recognized as a comorbidity to several paraphilias for MHL Article 10 purposes, the condition of hypersexuality is discussed in the context of other mental disorders, such as Parkinson's Disease, Dementia and Bi-polar Disorder (id. at *12).
Finally, with respect to Justice Riviezzo's paraphrasing of Justice Potter Stewart's famous "I know it when I see it" comment from his concurrence in Jacobellis v. Ohio , 378 US 184, 197 (1964), the court must point out that, considering the breadth and depth of Justice Riviezzo's decision in Victor H. , it is disingenuous of respondent to characterize it as promoting that concept as the standard by which MHL Article 10 decisions should be made. Aside from being a literary flourish contained in dicta , the cite to Justice Stewart's observation is a reference to the clinical judgment that is required in determining whether an individual suffers from the condition of hypersexuality and precedes a lengthy discussion of how the experts exercise such judgment in the real world (Victor H., supra at *15-16).
In the case at bar, respondent seeks the same relief sought in Victor H. Having reviewed all submissions thoroughly and considered the existing case law, including the results of several prior Frye hearings, the court finds it reasonable to rely upon such case law, particularly Victor H. , in determining the issue of the general acceptance of the condition of hypersexuality in the relevant psychiatric and psychological communities (Williams, supra at 38; LeGrand, supra at 458). A Frye hearing conducted by this court could be expected to involve similar, if not the same, evidence offered in Victor H. Indeed, respondent's motion includes an affidavit from Dr. Leonard Bard, who testified as an expert in the hearing conducted in Victor H. Accordingly, the court is able to reach a conclusion on the issue without the necessity of ordering a Frye hearing, and it concludes that the condition of hypersexuality is generally accepted within the relevant psychiatric and psychological communities.
With respect to respondent's claim that hypersexuality, as a stand-alone condition, does not meet the constitutional requirements to support a finding of mental abnormality, the court recognizes that this analysis is separate from a Frye determination. However, nothing in the relevant case law reviewed by this court indicates that the constitutional analysis contemplated in Matter of State of New York v. Dennis K. , 27 NY3d 718 (2016) ; Matter of State of New York v. Donald DD. , 24 NY3d 174 (2014) ; and Matter of State of New York v. Shannon S. , 20 NY3d 99 (2012) necessarily excludes a diagnosis or condition that has been found generally accepted under Frye from being constitutionally sound.
In the case at bar, the condition of hypersexuality has been found to be accepted by the relevant psychiatric and psychological communities. In making this determination, the court has found the condition to be sufficiently defined and reliably researched. Any testimony about hypersexuality can be expected to explain its status as a condition, as opposed to a diagnosis, and will be subject to cross-examination which will allow the fact-finder to decide what weight to give it.
Respondent's reliance upon Matter of State of New York v. Kenneth W. , 131 AD3d 872 (1st Dept 2015) and Matter of State of New York v. Gen C. , 128 AD3d 467 (1st Dept 2015), as examples of the condition of hypersexuality being rejected as constitutionally unsound, is misplaced. In each of these cases, the First Department held that the evidence failed to establish that hypersexuality is an independent mental disorder upon which mental abnormality could be based. However, in each case, the court also went on to address the condition of hypersexuality, finding the State failed to present evidence that it predisposes one to commit sexual offenses and results in serious difficulty in controlling such conduct. Although hypersexualtiy was rejected as an independent diagnosis, the court's language makes it clear that it was recognized as a condition that, with sufficient evidence, could be relied upon in a determination of whether a respondent suffers from a Mental Abnormality as defined by the MHL.
In the case at bar, Dr. Geller specifically assigned the condition of hypersexuality. It is not offered as a stand-alone diagnosis. It will be up to the State to present evidence of the condition's role in her ultimate conclusion that respondent suffers from a mental abnormality. Accordingly, respondent's motion to preclude all expert testimony regarding the stand-alone condition of hypersexuality, as failing to meet the constitutional requirements to support a finding of mental abnormality, is denied.
Therefore, respondent's motion to preclude all expert testimony regarding the stand-alone condition of hypersexuality or, in the alternative, granting a Frye hearing, is denied.
Frotteuristic Disorder
Respondent argues that the provisional diagnosis of Frotteuristic Disorder (Controlled Environment) should be precluded as inadmissible under the rules of evidence. As a threshold matter, respondent claims that Dr. Geller's diagnosis is not, in fact, provisional.
According to the DSM-5:
The specifier "provisional" can be used when there is a strong presumption that the full criteria will ultimately be met for a disorder but not enough information is available to make a firm diagnosis. The clinician can indicate the diagnostic uncertainty by recording "(provisional)" following the diagnosis.
(DSM-5 at 23).
Respondent asserts that Dr. Geller reviewed extensive records and had the opportunity to interview him for over four hours, and, as a result, her diagnosis cannot be considered provisional. According to respondent, Dr. Geller's provisional diagnosis is not contingent upon records to which she did not have access, and that may come to light in the future, but upon a simple lack of evidence to support it. The court disagrees.
Dr. Geller indicates that she came to the provisional diagnosis of frotteuristic disorder based upon respondent's record and self-reported history of touching or rubbing against non-consenting individuals (Geller report at 31). She found that respondent manifested this behavior from childhood to adulthood and received sanctions for it, as a child and as an adult (id. ). Additionally, respondent reported masturbating to thoughts of his frotteuristic behavior (id. ). Dr. Geller stopped short of diagnosing respondent with frotteuristic disorder, finding that she did not have enough information, at the time of her evaluation, to determine that he experienced sexual arousal as a result of his actions (id. at 32).
Based upon the DSM-5 definition of a provisional diagnosis, the court declines to reject Dr. Geller's provisional diagnosis of frotteuristic disorder. Contrary to respondent's argument, the DSM-5 definition does not require Dr. Geller to know or predict the manner in which the full criteria for the disorder will be met, but only that, in the absence of enough information to make a firm diagnosis, she can form a strong presumption that they will be met in the future. The information available to Dr. Geller established that respondent repeatedly engaged in frotteuristic behavior over an extended period of time and that it caused him significant distress or impairment. According to respondent's record and self-reported history and the fact that he was confined to a treatment facility at the time of her evaluation, it was reasonable for Dr. Geller to form a strong presumption that the full criteria for Frotteuristic Disorder will ultimately be met.
Respondent next argues that the provisional nature Dr. Geller's diagnosis of frotteuristic disorder reflects a level of uncertainty that requires that any testimony regarding it be precluded as inadmissible under the rules of evidence. The court disagrees.
The Appellate Division, Second Department has upheld the admission of provisional diagnoses to support findings of mental abnormality (see Matter of State of New York v. Ruben M. , 137 AD3d 1047 [2d Dept 2016] ; Matter of State of New York v. Derrick B. , 68 AD3d 1124 [2d Dept 2009] ). In Derrick B. , the court recognized that the provisional diagnosis reached by the State's experts was based upon specific behaviors demonstrated by the respondent. While they could not assign the diagnosis in question, they testified that the behaviors contributed to their conclusion that the respondent suffered from a mental abnormality.
In Matter of State of New York v. Kevin J. (Sup Ct Kings County, December 18, 2015, Riviezzo, J., Index No. 4117/14), the court relied upon the ruling of the Court of Appeals in Shannon S. , supra , which established that a finding of mental abnormality need not be based upon a specific diagnosis enumerated in the DSM, to deny the preclusion of evidence of a diagnosis that was considered, but not assigned. Justice Riviezzo reasoned:
Since an opinion that a respondent suffers from a mental abnormality may include a diagnosis that is not specifically identified in the DSM, or theoretically may not include any diagnosis at all, there is no legal reason to preclude a diagnosis or condition that was considered by an expert but not assigned or ‘ruled out’ just because it does not meet all the criteria of the diagnosis as stated in the DSM.
(Kevin J., supra at 4).
The court further held that the experts' consideration of the unassigned diagnosis was relevant and contributed to their conclusions that the respondent suffered from a mental abnormality. Finally, the court held that the experts' conclusions were subject to cross-examination and any objection to testimony regarding the unassigned diagnosis went to the weight of the evidence and not its admissibility.
In the case at bar, Dr. Geller reached a provisional diagnosis of frotteuristic disorder, based upon respondent's relevant records and self-reported history. Respondent demonstrated frotteuristic behavior and reported that he masturbated to thoughts of that behavior. The behavior occurred from respondent's childhood to his adulthood, subjecting him to sanctions and causing him distress and impairment. As the court determined supra , Dr. Geller was justified in reaching a provisional diagnosis as defined by the DSM-5.
Additionally, Dr. Geller's report of her evaluation of respondent indicates that her provisional diagnosis contributed to her ultimate conclusion that respondent has a mental abnormality; is predisposed to commit sexual offenses; and has difficulty controlling such conduct (Geller report at 33). Dr. Geller's opinion, including her provisional diagnosis, will be subject to cross-examination and the finder of fact will have the opportunity to consider its weight. Accordingly, respondent's motion to preclude all expert testimony on the provisional diagnosis of frotteuristic disorder is denied.
This constitutes the Decision and Order of the Court.