State v. Jerome A.

2022 NY Slip Op 51094(U)

In the Matter of the Application of The State of New York, Petitioner, v. Jerome A., Respondent, For Commitment Under Article 10 of the Mental Hygiene Law.

SCID No. 30261-2014

Supreme Court, New York County

November 9, 2022

Unpublished Opinion

New York State Attorney General Letitia James (Anthony Miller and Breda Huvane, of counsel) for the State.

Mental Hygiene Legal Services First Judicial Department (Naomi Weinstein and Jessica Botticelli, of counsel) for the Respondent.

Daniel Conviser, J.

This Decision and Order rules on the petition filed by the State seeking a determination that the Respondent, who was formerly released to Strict and Intensive Supervision and Treatment in the Community ("SIST") under Article 10 of the Mental Hygiene Law ("Article 10" or the Sex Offender Management and Treatment Act "SOMTA") is a Dangerous Sex Offender Requiring Confinement ("DSORC"). For the reasons outlined here, the Court holds that the State has not demonstrated that the Respondent is a DSORC by clear and convincing evidence. The Court therefore orders the State to prepare proposed SIST conditions for the Respondent, following which the Court will schedule a proceeding for the Respondent to be again released to SIST.

The Court's ruling follows an evidentiary hearing at which Dr Jonathan Miljus, a psychologist employed by the New York State Office of Mental Health ("OMH") testified for the State and Dr. Leonard Bard, a psychologist, testified for the Respondent.

History of Prior Proceedings

This Court has conducted proceedings concerning Mr. A. for 7 years. It has written several decisions about him and presided over multiple hearings and a bench trial. The Court here first provides a summary of these past 7 years of proceedings, derived from this Court's bench trial decision finding Mr. A. had a Mental Abnormality in 2020 State v. Jerome A., 67 Misc.3d 1220 (A) (Sup Ct, NY County 2020).

On June 1, 2015, following the filing of the instant petition, this Court conducted a hearing pursuant to MHL § 10.06 (g) to determine if there was probable cause to believe Mr. A. was a sex offender requiring civil management. In State v Jerome A., 48 Misc.3d 1229 (A) (Sup Ct, NY County 2015) 2015 NY SlipOp 51303 (U), this Court, in an extended opinion dismissed the petition. 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 Antisocial Personality Disorder ("ASPD") and psychopathy was the same diagnosis rejected as not meeting Article 10 requisites by the Court of Appeals in State v. Donald DD and Kenneth T. 24 N.Y.3d 174 (2014) and because this Court did not find Dr. Charder's testimony otherwise credible or sufficient to establish the requisites for 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. ^[1]

In State v. Jerome A., 137 A.D.3d 557 (1st Dept 2016), however, the First Department reversed this Court's dismissal in a brief decision. 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 that "the expert's testimony at the 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.

The case was then returned to this Court where the Court, on the Respondent's motion, conducted an extended Frye hearing on whether one of the State's proffered diagnoses, Unspecified Paraphilic Disorder ("USPD"), was generally accepted in the relevant scientific community. 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 the USPD diagnosis was generally accepted. Although this Court explained its decision in an extended opinion, it summarized its reasoning as follows:

[T]he DSM [Diagnostic and Statistical Manual of Mental Disorders] has been described by experts as the 'Bible of mental disorders', 'like the institutional embodiment for the consensus of main treatment and psychiatric opinion in the United States', 'a consensus of experts in psychiatry about those particular disorders that should be treated' and 'the consolidated opinion of the psychiatric community in terms of what constitutes psychiatric diagnosis. According to the DSM-5 [the current 5th edition]... the USPD diagnosis is 'indispensable'. 2017 NY Slip Op at 15 (citations omitted).

In State v. Hilton C., 158 A.D.3d 707 (2nd Dept 2018), however, the Second Department held that the USPD diagnosis was not generally accepted. This Court then reversed its determination that USPD was generally accepted, since Hilton C. was the only appellate ruling which had considered the issue and this Court was thus bound to follow it.

Further complications then ensued, however, from the Second Department's decision in State v. Anthony B., 2018 NY SlipOp 68466 (U) (2nd Dept 2018). There, the trial court, in reliance on the Second Department's decision in State v. Richard S., 158 A.D.3d 710 (2nd Dept 2018) holding that USPD Non-Consent (a different diagnosis than USPD) was not a generally accepted diagnosis followed the Second Department's ruling. The Second Department reversed the trial court's determination, however, holding that the trial court was required to conduct a new Frye hearing, notwithstanding the fact that a different Second Department panel had already ruled on the identical Frye issue. The Anthony B. Court held that the trial court had to conduct "a Frye hearing on the question of whether, under the particular circumstances of this case, the diagnosis of 'Other Specified Paraphilic Disorder (Non-Consent)' has achieved general acceptance in the psychiatric and psychological communities so as to make expert testimony on that diagnosis admissible;" (emphasis added).

This Court was then required to consider a motion by the State to reargue this Court's prior ruling following the Second Department's decision on the USPD Frye issue based on the argument that the Second Department in Anthony B. had created a new Frye analytic construct: "the principle that an appellate ruling from an appellate court based on a particular Frye record does not preclude the State from seeking a new Frye ruling before a trial court based on a different record." State v. Nicholas T. & Gary K., 60 Misc.3d 522, 525 (Sup Ct, NY County 2018). This Court denied the State's motion, notwithstanding the Second Department's ruling, since "[t]he general acceptance of a particular diagnosis or scientific test obviously does not vary from case to case (hence the term 'general acceptance')". 60 Misc.3d at 527.

Jerome A. then proceeded to a bench trial before a different judge of this Court, Judge Pickholz, 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 Judge Pickholz's verdict. The Court found, consistent with this court's ruling in State v. Jerome A., Nicholas T., & Gary K., that USPD was a generally accepted diagnosis. Since this Court had precluded that diagnosis prior to the trial, the First Department found, the verdict finding the respondent did not suffer from a Mental Abnormality had to be reversed. ^[2]

This Court then conducted a second bench trial, where it reached a verdict contrary to Judge Pickholz (and contrary to this Court's initial dismissal). Ironically, however, this Court reached that verdict although it did not credit the State's USPD diagnosis - the diagnosis whose absence was the sole reason for the First Department's latest reversal. This Court then conducted a dispositional hearing and found that the Respondent was not a Dangerous Sex Offender Requiring Confinement. Mr. A. was then released to the community on SIST and, 4 ½ months later, violated his SIST conditions in numerous respects, leading to the instant petition.

Summary of Mr. A.'s Criminal History

The following summary of Mr. A.'s criminal history as described by State witness Dr. Kostas Katsavdakis is derived from this Court's Decision and Order in 2020 finding Mr A. had a Mental Abnormality. Mr. A. began using drugs as a juvenile. In 1972, at the age of 15, he admitted robbing a prostitute. Later that year, he admitted to participating in what he described as a "hooky party" where he was arrested for rape and the case was transferred to Family Court and dismissed. He told Dr. Schlosser (the Respondent's expert) that he and other juveniles had "run a train" over a female. [Dr. Schlosser later said this meant they took turns having sex with her.]

In 1975 he was arrested for attempted murder and convicted of robbery for an incident in which he and a co-defendant got into an argument with a bouncer at a club and committed a robbery. Mr. A. had a BB gun and his partner had a real gun. After being released from prison for this offense, he was convicted in 1979 after 10 months in the community for attempted criminal possession of a weapon. Later that year, he was arrested for breaking a person's arm with a rolling pin but the charges were dismissed.

In 1984, Mr. A. was convicted in Virginia at age 26 of a sexual...