State v. Jeremiah D.

2024 NY Slip Op 51085(U)

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.

SMZ No. 71436/2021

Supreme Court, New York County

August 15, 2024

Unpublished Opinion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." ^[1] 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.

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...