State v. Donald DD.

24 N.Y.3d 174

21 N.E.3d 239

996 N.Y.S.2d 610

2014 N.Y. Slip Op. 07295

In the Matter of STATE of New York, Respondent

v.DONALD DD., Appellant.

In the Matter of State of New York, Respondent

v.Kenneth T., Appellant.

Nos. 172, 173

Court of Appeals of New York.

Oct. 28, 2014.

George J. Hoffman, Jr., Albany, for appellant in the first above-entitled proceeding.

Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Treasure, Barbara D. Underwood, Andrea Oser and Nancy A. Spiegel of counsel), for respondent in the first above-entitled proceeding.

Lesley M. DeLia, Mental Hygiene Legal Service, Mineola (Ana Vuk–Pavlovic and Dennis B. Feld of counsel), for appellant in the second above-entitled proceeding.

Eric T. Schneiderman, Attorney General, New York City (Bethany A. Davis Noll, Barbara D. Underwood and Steven C. Wu of counsel), for respondent in the second above-entitled proceeding.

OPINION OF THE COURT

PIGOTT, J.

In Matter of State of New York v. Donald DD., we hold that, in a Mental Hygiene Law article 10 trial, evidence that a respondent suffers from antisocial personality disorder cannot be used to support a finding that he has a mental abnormality as defined by Mental Hygiene Law § 10. 03(i), when it is not accompanied by any other diagnosis of mental abnormality. We dismiss the proceeding in Matter of State of New York v. Kenneth T. on the ground of legal insufficiency. We begin our discussion with that appeal.

I.

On December 16, 1982, respondent Kenneth T., 27, brandished a knife and forced a 17–year–old girl to accompany him to a rooftop, where he raped her. He also stole her coat. Kenneth T. was arrested after being seen wearing the coat, and his victim identified him in a lineup. In November 1983, following trial, he was convicted of rape in the first degree, robbery in the first degree, and possession of stolen property in the third degree, and sentence was imposed.

In September 1999, Kenneth T. was conditionally released to parole, having served some 17 years in prison. On October 31, 2000, Kenneth T., while employed at a university cafeteria, offered a female student a ride to the train station. He drove to a parking lot, ordered the woman out of his car, threw her to the ground, and attempted to rape her. The woman resisted, biting one of Kenneth T.'s fingers when he tried to cover her mouth and leaving a bite mark on the finger. She was able to escape when a passerby observed the commotion. Kenneth T. was arrested, and pleaded guilty to attempted rape in the first degree. In January 2001, he was sentenced to eight years' imprisonment to be followed by five years' postrelease supervision.

During his incarcerations, Kenneth T. incurred disciplinary “tickets,” the most serious offenses being assault on staff, disobeying a direct order, and harassment, and he was removed from sex offender counseling for disciplinary reasons on three occasions. However, he was not accused of any sexual “acting out” while in prison.

II.

In October 2008, as he was about to be released to postrelease supervision, the State commenced this civil commitment proceeding against Kenneth T. under Mental Hygiene Law article 10. At a probable cause hearing, Dr. Paul Etu, a board-certified psychologist who had interviewed Kenneth T. and reviewed his records, testified that in his opinion Kenneth T. suffered from a mental abnormality as defined by Mental Hygiene Law § 10.03(i). Among other things, Dr. Etu testified that Kenneth T. had told him that he had difficulty controlling his sexual impulses. Supreme Court found probable cause to believe that Kenneth T. was a sex offender requiring civil management.

Following the hearing, Kenneth T. was committed to a secure treatment facility pending the conclusion of the article 10 proceeding. In June 2010, a bench trial was held in Supreme Court, pursuant to Mental Hygiene Law § 10.07, on the issue of whether Kenneth T. suffered from a mental abnormality within the meaning of Mental Hygiene Law § 10.03(i).

The State presented a licensed psychologist, Dr. Stuart Kirschner, who had interviewed Kenneth T. and reviewed his records. Dr. Kirschner opined that Kenneth T. had two disorders that, together, predisposed him to the commission of conduct constituting a sex offense and resulted in his having serious difficulty

in controlling that conduct: “paraphilia¹ not otherwise specified” (paraphilia NOS) and “antisocial personality disorder ” (ASPD).

Dr. Kirschner defined “paraphilia NOS” using the “broad criteria” that characterize paraphilia in general: “sexual fantasies, urges or behaviors directed ... at inanimate objects or non-consenting partners or minors.” Specifically, Dr. Kirschner testified that in his opinion Kenneth T. had “sexual fantasies, urges or behaviors involving non-consenting partners.” Challenged on cross-examination as to whether he could diagnose paraphilia NOS without any direct evidence that Kenneth T. was sexually aroused by nonconsensual sexual activity, Dr. Kirschner suggested that such arousal could be inferred simply from “the way [Kenneth T.] conducted himself during ... the two offenses.” However, Dr. Kirschner admitted that he was “not sure” whether Kenneth T. found the nonconsensual aspect of his crimes sexually arousing.

With respect to ASPD, Dr. Kirschner testified that this disorder is characterized by “violations of the law, disregard for the truth, lack of remorse, irritability and aggressiveness,” as well as “irresponsibility in the sense that the person does not meet financial responsibilities.”² Dr. Kirschner opined that Kenneth T. met “[p]retty much all of” these criteria of ASPD.

Dr. Kirschner conceded that ASPD could be found in most prison inmates (“probably ... 80 percent”). He also testified that ASPD does not “in and of itself” show mental abnormality as defined by Mental Hygiene Law article 10.

Dr. Kirschner attached special significance to the fact that, in his view, Kenneth T. suffered both from paraphilia and from ASPD. He testified that the paraphilia predisposed Kenneth T. to commit rape, and his ASPD gave rise to a serious difficulty in controlling the urge to rape. Dr. Kirschner identified Kenneth

T.'s ASPD with a lack of “ability to think before he acts,” “internal [braking] mechanism,” or “internal controls such as a conscience that might curb his impulses.”

As evidence that Kenneth T. had serious difficulty in controlling his sexual misconduct, Dr. Kirschner identified two factors. The first was that Kenneth T. carried out offenses in circumstances that would allow for his identification by the victims. (In particular, Kenneth T. committed the first offense in a neighborhood that he frequented, and afterwards wore a coat he had taken from the victim, while the second victim was a woman who knew Kenneth T. and could easily give the police information leading to his arrest.) The second was the fact that Kenneth T. attempted the second rape despite having spent some 17 years in prison for the earlier crime.

Following the bench trial, Supreme Court concluded that Kenneth T. had a condition, disease or disorder that predisposed him to the commission of conduct constituting a sex offense and resulted in his having serious difficulty in controlling such conduct. Kenneth T. moved to set aside the verdict, arguing that the evidence was legally insufficient. Kenneth T. contended that Dr. Kirschner believed him to have a mental abnormality under Mental Hygiene Law article 10 purely on the basis of his crimes—crimes that in themselves did not distinguish him adequately from recidivist rapists who do not suffer from mental abnormality of this kind. Supreme Court denied the motion.

A dispositional hearing was held, pursuant to Mental Hygiene Law § 10.07(f), and Supreme Court found that Kenneth T. suffered from a mental abnormality involving such a strong predisposition to commit sex offenses, and such an inability to control behavior, that he was likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility (see Mental Hygiene Law § 10.03[e] ). Accordingly, Supreme Court ordered that Kenneth T. be confined.

Kenneth T. appealed. The Appellate Division affirmed Supreme Court's order (106 A.D.3d 829, 964 N.Y.S.2d 593 [2d Dept.2013] ), ruling that “Supreme Court's finding that the State established, by clear and convincing evidence, that the appellant suffers from a ‘mental abnormality,’ as that term is defined in Mental Hygiene Law § 10.03(i), was warranted by the facts” (id. at 830, 964 N.Y.S.2d 593 ).

We granted Kenneth T. leave to appeal, and now reverse.

III.

On July 26, 2002, respondent Donald DD., then 18, had sexual intercourse with a 14–year–old acquaintance. As she later recalled, she “fell for his wit and ... had sex with him.” Donald DD. then asked the girl whether her 12–year–old cousin would have sex with him. The younger girl was afraid, and did not resist when Donald DD. partially inserted his penis into her vagina. The two girls told the authorities what had occurred, and Donald DD. was arrested. At the time, Donald DD. was on probation, following a conviction of criminal contempt in the second degree for violating an order of protection obtained against him by an ex-girlfriend.

Donald DD. pleaded guilty to rape in the second degree (Penal Law § 130.30 [1 ] [being 18 years old or more, he or she engages in sexual intercourse with another person less than 15 years old] ), attempted rape in the second degree (under the same statute), and endangering the welfare of a child. In January 2004, he was convicted and sentenced to six months' imprisonment and 10 years' probation.

On July 1, 2004, after release from prison, Donald DD. persuaded a young woman, a close friend of his wife, to accompany him on a walk to a local cemetery. There, he kissed the woman and, ignoring her repeated protests, had sexual intercourse with her. Afterwards, the woman returned to Donald DD.'s house with him; when she was leaving, he said he kn...