In the Matter of State of New York v. Floyd Y. (Anonymous) ( 2017 )


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  • This memorandum is uncorrected and subject to revision before
    publication in the New York Reports.
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    No. 102
    In the Matter of State of New
    York,
    Respondent,
    v.
    Floyd Y. (Anonymous),
    Appellant.
    Alexandra H. Keeling, for appellant.
    Matthew W. Grieco, for respondent.
    MEMORANDUM:
    The judgment appealed from and the order of the
    Appellate Division brought up for review should be affirmed,
    without costs.
    Considering the evidence "in the light most favorable
    to the State" (Matter of State of New York v John S., 23 NY3d
    - 1 -
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    326, 348 [2014]), as we must, the evidence at respondent's
    retrial (see Matter of State of New York v Floyd Y., 22 NY3d 95,
    111 [2013]) was legally sufficient to establish by clear and
    convincing evidence that he had "serious difficulty in
    controlling" his sexual conduct within the meaning of Mental
    Hygiene Law § 10.03 (i).
    The State's expert witness testified, among other
    things, that he diagnosed respondent with pedophilia and
    antisocial personality disorder (ASPD), as well as substance
    abuse disorders.   In the expert's opinion, respondent's
    "combination of a pedophilic disorder with [ASPD] . . . create[d]
    a very toxic mixture in the sense that [respondent] [wa]s more
    likely to act on the urges towards children and not feel
    remorse."   The witness's testimony was supported by evidence from
    the relevant scientific community.      As respondent's expert
    witness conceded, the American Psychiatric Association's Manual
    of Mental Disorders states that there is "an interaction between
    pedophilia and [ASPD], such that males with both traits are more
    likely to act out sexually with children" (see American
    Psychiatric Association, Diagnostic and Statistical Manual of
    Mental Disorders 699 [5th ed 2013]).
    The jury also heard that during sex offender treatment,
    respondent described his struggle with pedophilia by saying he
    had experienced sexual desires toward his preteen stepdaughter,
    which he had been "fighting for a significant period of time,"
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    until "he gave in to them."    There was also testimony from
    respondent's expert witness that during an interview respondent
    had summarized the urgency of his sexual desires by saying, "I
    want what I want when I want it."
    Additionally, the State's expert testified that
    respondent had made minimal progress in treatment for his
    pedophilic disorder, and had been removed from treatment "because
    his behavior was deviant and very difficult to manage. . . .
    [A]s recently as 2013 and 2014 . . . he wasn't really involved
    [in treatment] or wasn't attending or had a negative and hostile
    attitude."    The expert opined that, because of this failure to
    cooperate with sex offender treatment, respondent had not
    developed the "cognitive skills" necessary to manage his
    pedophilia.    He had no "viable relapse prevention plan" (compare
    Matter of State of New York v Michael M., 24 NY3d 649, 655 [2014]
    [describing "tools" by means of which a Mental Hygiene Law
    article 10 respondent subject to "strict and intensive
    supervision and treatment" was "learning to control" his sexual
    urges]).   The expert further testified that respondent exhibited
    cognitive distortions about what constitutes consensual sex.
    Moreover, respondent over the years minimized or denied his
    offending behavior, exhibiting a lack of remorse for his actions,
    which impaired his ability to control his desires.
    We conclude that a rational jury could have found -- on
    the basis of respondent's particular diagnoses and cognitive
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    deficiencies, his own admissions, and his cavalier attitude
    toward sex offender treatment -- that respondent had "serious
    difficulty in controlling" his sexual conduct.
    Finally, we note that no expert at respondent's trial
    testified that a diagnosis of pedophilia alone would demonstrate
    "serious difficulty in controlling" sexual conduct, and the State
    concedes that it has never "advocated for any such rule."    In the
    present case, by contrast, there was "detailed testimony" (Matter
    of State of New York v Dennis K., 27 NY3d 718, 752 [2016]; see
    generally Matter of State of New York v Donald DD., 24 NY3d 174,
    188 [2014]) about the manner in which respondent's multiple
    psychiatric disorders collectively resulted in his having
    "serious difficulty in controlling" his sexual conduct.
    We have considered respondent's remaining contentions
    and they lack merit.
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    Matter of State of New York v Floyd Y.
    No. 102
    WILSON, J.(dissenting) :
    Oh Thou, who didst with Pitfall and with Gin
    Beset the Road I was to wander in,
    Thou will not with Predestination round
    Enmesh me, and impute my Fall to Sin?
    Rubáiyát of Omar Khayyám
    I respectfully dissent.
    Floyd Y. has a tortuous history.    In sum, sentenced to
    a term of four to eight years, he was confined for fifteen years,
    only four of which were his term of imprisonment, and is now
    released under a program of "Strict and Intensive Supervision and
    Treatment" (SIST).    Make no mistake, he appears to be a person
    who has done many bad things, some of which were proved beyond a
    reasonable doubt, the others not.    The issue here, though, is not
    whether Floyd Y. is good or bad, or whether he spent too little
    time in prison, or whether he will commit some future crime if
    released from SIST.    To justify his continued civil management
    "on the fiction that he has some sort of mental condition other
    than a tendency to commit the crimes for which he was convicted
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    (and has served his time) is and should be constitutionally
    unacceptable" (Matter of State of New York v Shannon S., 20 NY3d
    99, 112 [2012] [Smith, J. dissenting]).   We now have ten years of
    experience with article 10, and the truth that emerges from our
    decisions is that the question of whether human behavior is
    volitional or predetermined is no more tractable that it was
    thousands of years ago.
    Between 1996 and 1998, Floyd Y. sexually molested his
    two young stepchildren.   In 2001, he was sentenced to a term of
    four to eight years in prison for those offenses.   In 2005, he
    was released from prison, but his confinement was continued
    pursuant to article 9 of the Mental Health Law.   In 2006, this
    Court held that his confinement under article 9 was unlawful
    (State of N.Y. ex rel. Harkavy v Consilvio, 7 NY3d 607 [2006]).1
    In response to Harkavy, the legislature adopted article 10 of the
    Mental Hygiene Law, which provides for the civil commitment of
    sex offenders who have a "mental abnormality," which is defined
    as a "condition, disease or disorder . . . that [1] predisposes
    [a person] to the commission of conduct constituting a sex
    offense" and that "[2] results in that person having serious
    1
    We held that if the State wished to continue the civil
    confinement of an inmate who would otherwise be released, the
    State needed to proceed under Correction Law § 402, which, among
    other things, requires the prison superintendent to petition the
    court to appoint two independent psychiatrists to evaluate the
    inmate; article 9 of the Mental Law lacks that and other
    procedural safeguards (id. at 613).
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    difficulty in controlling that conduct" (Mental Hygiene Law §
    10.03 [i]).2
    Upon enactment of article 10, the State brought a
    petition seeking to continue Floyd Y.'s commitment as a sex
    offender suffering from a mental abnormality.    The jury found
    that he had a mental abnormality, and the trial court ordered
    that he remain confined.   In Matter of State of New York v Floyd
    Y. (22 NY3d 95 [2013]), we reversed and ordered a new trial,
    holding that the State had used its expert as a conduit for
    inadmissible hearsay prejudicial to Floyd Y.    He remained
    confined pending the new trial, which was held in 2015.    The jury
    again found that Floyd Y. suffered from a mental abnormality, but
    the trial court held that the evidence was insufficient to show
    that Floyd Y. had "serious difficulty in controlling" his sex
    offending, relying principally on our decision in Matter of State
    of New York v Donald DD. (24 NY3d 174 [2014]), in which we
    rejected the opinion of the same psychologist who had testified
    as to Floyd Y.'s mental abnormality, Dr. Stuart Kirschner (
    46 Misc 3d 1225
    [A], 2015 NY Slip Op [Sup Ct. NY County 2015]).      The
    Appellate Division reversed, concluding the record contained
    sufficient evidence to satisfy article 10 (135 AD3d 70 [1st Dept
    2
    Article 10 parrots the words of Supreme Court precedent.
    A finding of a "mental abnormality" which causes a "lack of
    control" over offending behavior satisfies the substantive due
    process rights of a sex offender whom the state is seeking to
    civilly manage (Kansas v Hendricks, 
    521 US 346
     [1997]; Kansas v
    Crane, 
    534 US 407
     [2002]).
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    - 4 -                          No. 102
    2015]).   Pursuant to a dispositional hearing conducted in Supreme
    Court before the Appellate Division's reversal, Floyd Y. was
    determined not to be a "dangerous" sex offender, and therefore is
    presently released under SIST, instead of confined.
    I
    So, what is the clear and convincing evidence of Floyd
    Y.'s serious inability to control his sex offending?   It appears
    to consist of the following: (1) Dr. Kirschner diagnosed Floyd Y.
    with pedophilia, antisocial personality disorder (ASPD) and
    substance abuse disorders, and then relied on a statement in the
    American Psychiatric Association's Manual of Mental Disorders
    (DSM-5) noting "an interaction between pedophilia and [ASPD] such
    that males with both traits are more likely to act out sexually
    with children"; (2) during sex offender treatment, Floyd Y. said
    he had struggled with, and ultimately given in to, sexual urges
    directed at his stepdaughter; (3) Floyd Y. was removed from sex
    offender treatment because he was difficult; (4) Floyd Y.
    explained his conduct by saying "I want what I want when I want
    it"; and (5) he had no viable relapse prevention plan.   In
    evaluating the sufficiency of this evidence, it is important to
    keep in mind that the proof must support scientifically valid
    criteria that can distinguish persons who are to be civilly
    confined or strictly supervised "from the dangerous but typical
    recidivist convicted in an ordinary criminal case" (Kansas v
    Crane, 
    534 US 407
    , 413 [2002]).   These observations compiled by
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    Dr. Kirschner do not constitute clear and convincing proof that
    Floyd Y.'s mental abnormality causes him to have serious
    difficulty in controlling his sexual offending.
    First, Dr. Kirschner's diagnoses, even if accurate, go
    to the "mental abnormality" prong.    His conclusion as to the
    "serious difficulty in controlling" prong rests on a
    generalization that may or may not be true as to Floyd Y.    The
    proof required is that Floyd Y.'s mental abnormality causes him
    serious difficulty in controlling his sexual offending behavior,
    not that people with his diagnoses sometimes, generally, or more
    often than not, have such serious difficulty.    Observed
    differences in behavior do not answer the question of whether
    such behavior is volitional or, instead, not volitional and
    caused by a mental abnormality.   Moreover, the law does not allow
    proof of individual liability by evidence of the propensity of a
    group of which the individual is a member.    As a further matter,
    the substance abuse and pedophilia diagnoses were based on stale
    information: there was no evidence that Floyd Y. had used drugs
    or alcohol in the past 20 years, and the pedophilia diagnosis was
    largely based on the crime of incarceration (nearly 20 years
    before his second article 10 trial) and statements he made "early
    on" during sex offender treatment.3   Nothing in those diagnoses
    3
    The only recent psychological interview was conducted by
    Dr. Singer; Dr. Kirschner reviewed his report and testified that
    Floyd Y. "feels remorse" for molesting his stepchildren, and
    recognizes "it is something that he should not have done."
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    allows us to say that Floyd Y. has a mental abnormality that
    results in an inability to control his sexually offending
    behavior, and is not (or was not) instead a recidivist rapist
    with a substance abuse problem.
    Second, Floyd Y.'s statements "early on" in sex
    offender treatment, to the effect that he had sexual urges
    towards his young stepdaughter "for a significant period of
    time," to which he ultimately gave in, may establish pedophilia
    (all his other documented sexual conduct involved females too old
    including, inter alia, his own stepmother, to fit within the
    definition of pedophilia), but, as the majority acknowledges, a
    diagnosis of pedophilia does not establish a present inability to
    control sexual offending, and coupling it with ASPD (which Dr.
    Kirschner estimates that 80% of the prison population has) and
    drug abuse (same) again does not prove that Floyd Y.'s mental
    abnormality causes him serious difficulty in controlling his
    sexually offending behavior.4   His admission that he did in fact
    4
    Contrary to the Appellate Division's statement that an
    element of impulse control difficulty is inherent to pedophilia,
    neither ASPD nor pedophilia contains such an element. Dr.
    Kirschner defined a pedophile as an "individual [who] has intense
    sexual urges, fantasies or behaviors involving prepubescent
    children and that the person has either acted on these urges or
    it causes the individual significant distress and problems in his
    functioning in his life, occupational, educational, vocational,
    social, etcetera. And that the problem exists for at least six
    months." As we stated in Kenneth T., the existence of urges and
    acting upon those urges could indicate a lack of control or it
    could just as simply indicate a choice to gratify those urges (24
    NY3d at 188).
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    have an urge before he committed the crime (a fact that was
    probably assumed) was interpreted to mean that since he did in
    fact commit the crime, he was unable to control his urges (which,
    during the admission, he said he had in fact controlled for a
    significant period of time).   This reasoning is circular, and
    reverts back to relying almost exclusively on the underlying
    criminal history for which Floyd Y. has already been to prison.
    In Kenneth T. we noted that it is "rarely if ever possible to
    say, from the facts of a sex offense alone" whether the offender
    had difficulty controlling his behavior (24 NY3d at 188).
    Third, the record evidence concerning Floyd Y.'s sex
    offender treatment shows the following.    He completed the sex
    offender treatment program while serving his term of
    imprisonment, and because of "dose effects" associated with his
    age, he had "sufficient sex offender specific treatment."
    Following his (unlawful) transfer to a psychiatric hospital in
    2005, Floyd Y. "made moderate gains" but "more recently . . .
    made minimal gains."   After our decision reversing his first
    article 10 trial, "he wasn't really involved or wasn't attending
    or had a negative and hostile attitude."    The examples given were
    that he "might hang shirts to cover his window," "fought with
    other residen[ts] or postured to fight with them," and "says
    . . . he doesn't need to get involved because he is gonna be
    released in the near future anyway."   It would be very hard
    indeed to conclude that these examples evidence anything other
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    than expected behavior by someone who believes he has been
    unlawfully confined in a psychiatric facility for 11 years.
    Moreover, failure to participate in treatment is at least equally
    consistent with volitional behavior as it is with a mental
    abnormality causing serious control difficulties.
    Fourth, his "I want what I want when I want it"
    statement was made more than a decade ago.   Doubtless countless
    celebrities, investment bankers, sports stars, politicians and
    perhaps even lawyers and psychiatrists have felt the same way.5
    Although not admirable, such sentiments are regrettably
    mainstream enough to fail as evidence of a mental abnormality
    causing a lack of control.
    Fifth, a sex offender's lack of a relapse prevention
    plan does not help us distinguish between those who are mere
    5
    "I want what I want when I want it" also happens to be the
    title of a song opening the second act of the operetta
    Mademoiselle Modiste, penned by Henry Blossom and Victor Herbert,
    debuting in 1905. Cf., e.g., John Lennon & Paul McCartney, I
    Want You (She's So Heavy) (1969) ("I want you, I want you so bad
    it's driving me mad, it's driving me mad"); Mick Ralphs, Can't
    Get Enough of Your Love (1974) ("Well I take whatever I want, and
    baby, I want you"); Isaac Hayes, David Porter & Mabon Hodges, I
    Take What I Want (1966) ("I take what I want, I'm a bad
    go-getter, yeah, yes, I am. I'm never a loser and I'm never a
    quitter yet, oh, no. 'Cause I take what I want, baby, I want you,
    yeah, you"); Kit Yarrow, Decoding the New Consumer Mind (2014)
    (describing modern consumers as possessed by IWWIWWIWI); Leslie
    Bricusse, Anthony Newley & Walter Scharf, I Want it Now!, Willy
    Wonka and the Chocolate Factory (1971) ("I want the whole works!
    Presents and prizes and sweets and surprises in all shapes and
    sizes, And now! I don't care how! I want it now!").
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    recidivists and those who cannot control their offending behavior
    because of a mental abnormality.   Granted, a relapse prevention
    plan might help either, but its absence does not let us
    distinguish one from the other.
    In Kenneth T., we remarked on the difficulty of
    divining how impulse control fits into the commission of a sex
    crime:
    "A rapist who killed his victims so that they
    could not identify him may have serious
    difficulty controlling his sexual urges.
    Conversely, one who raped an acquaintance and
    permitted her to escape may not have serious
    difficulty controlling his sexual urges
    within the meaning of article 10. A person
    who committed a rape soon after serving a
    very short sentence for sexual abuse may have
    serious difficulty in controlling his sexual
    misconduct. Conversely, one who committed a
    rape soon after serving a very lengthy
    sentence may not have serious difficulty
    controlling his sexual urges. Rather, the
    rape may be a crime of opportunity, and the
    defendant willing to risk the prospect of a
    return to incarceration"
    (24 NY3d at 188).   The American Psychiatric Association, quoted
    by the Supreme Court in Crane, made the same point more
    succinctly: "The line between an irresistible impulse and an
    impulse not resisted is probably no sharper than that between
    twilight and dusk" (
    534 US at 412
     [quoting The American
    Psychiatric Association, Psychological Evaluations for the
    Courts, 200 [2d ed. 1997]]).
    Indeed, when creating the requirement that a sex
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    offender must demonstrate a "lack of control" in order to be
    committed, the Supreme Court in Crane noted that "we did not give
    to the phrase 'lack of control' a particularly narrow or
    technical meaning.   And we recognize that in cases where lack of
    control is at issue, 'inability to control behavior' will not be
    demonstrable with mathematical precision.   It is enough to say
    that there must be proof of serious difficulty in controlling
    behavior" (
    534 US at 413
    ).   In an apparent acknowledgment of the
    fact that this legal requirement was not definable in psychiatric
    terms, the Court went on to say, "the science of psychiatry,
    which informs but does not control ultimate legal determinations,
    is an ever-advancing science, whose distinctions do not seek
    precisely to mirror those of the law" (id.).
    In his dissent in Crane, Justice Scalia pointed out the
    glaring problems with the requirement, writing,
    "I suspect that the reason the Court avoids
    any elaboration is that elaboration which
    passes the laugh test is impossible. How is
    one to frame for a jury the degree of
    'inability to control' which, in the
    particular case, 'the nature of the
    psychiatric diagnosis, and the severity of
    the mental abnormality' require? Will it be a
    percentage ('Ladies and gentlemen of the
    jury, you may commit Mr. Crane under the SVPA
    only if you find, beyond a reasonable doubt,
    that he is 42% unable to control his penchant
    for sexual violence')? Or a frequency ratio
    ('Ladies and gentlemen of the jury, you may
    commit Mr. Crane under the SVPA only if you
    find, beyond a reasonable doubt, that he is
    unable to control his penchant for sexual
    violence 3 times out of 10')? Or merely an
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    adverb ('Ladies and gentlemen of the jury,
    you may commit Mr. Crane under the SVPA only
    if you find, beyond a reasonable doubt, that
    he is appreciably-or moderately, or
    substantially, or almost totally-unable to
    control his penchant for sexual violence')?
    None of these seems to me satisfactory"
    (id. at 423-424 [Scalia, J., dissenting]).
    As behavioral experts have opined, "It would seem
    tautological, and certainly not scientific to argue that the
    offender has pedophilia because he/she commits sexual acts
    against children and he/she commits sexual acts against children
    due to that pedophilic condition. Translating this premise into
    the control paradigm: the offender lacks the ability to control
    his/her behavior because the person fails to control that
    behavior" (Holly A. Miller, et al., Sexually Violent Predator
    Evaluations: Empirical Evidence, Strategies for Professionals,
    and Research Directions, 29 L & Human Behavior 1, 43 [Feb.
    2005]).   When one looks more closely at the testimony of Dr.
    Kirschner, it becomes apparent that he rests his opinions here on
    a host of information that fails for the same reason his
    testimony failed in Kenneth T.: it does not allow him or us to
    distinguish volitional conduct from conduct caused by a mental
    abnormality.
    II
    The fundamental problem is this: we have no way to know
    whether the fault lies with ourselves or with our stars.    Why we
    do what we do dates at least to the disagreement between the
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    Stoics and Aristotle.    Today, the debate continues, more often
    framed around brain chemistry and physics than philosophy or
    religion.   Article 10 asks us to prove the unprovable: a mental
    abnormality caused me to have serious difficulty controlling my
    actions, or as Flip Wilson put it, "The devil made me do it."
    The legislature enacted article 10 one year after
    Harkavy, because it determined that "many mentally abnormal
    sexual offenders may not have the kind of 'mental illness' that
    is a prerequisite for such a commitment" under the Correction Law
    (Governor's Program Bill Mem, Bill Jacket, L 2007, Ch 7 at 9-10).
    Thus, the legislature sought to expand civil commitment of one
    type of criminal - sex offenders - to persons who had previously
    not qualified as in need of commitment under the existing laws.
    Days before the legislature passed article 10, the New
    York State Psychiatric Association sharply criticized the
    proposed legislation in a letter to Governor Spitzer, writing,
    "'mental 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" (Bill Jacket, L 2007, Ch 7 at 67).    It
    continued, "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 in the bill"
    (emphasis added) and observed "it is precisely because many
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    individuals who would be considered a 'dangerous sex offender
    requiring confinement' under the bill do not fit into the
    existing statutory scheme for civil commitment of persons
    (because they do not have a serious mental illness) that the
    non-psychiatric definition of mental abnormality was created in
    order to provide a legal basis for civil retention" (id.).
    Mental health organizations have criticized such laws
    as scientifically unsound.   In 1999, the American Psychiatric
    Association opined that "Sexual predator commitment laws
    represent a serious assault on the integrity of psychiatry . . .
    by bending civil commitment to serve essentially nonmedical
    purposes, sexual predator commitment statutes threaten to
    undermine the legitimacy of the medical model of commitment"
    (American Psychiatric Association Task Force, Dangerous Sex
    Offenders 173 [1999]).
    Professor Stephen Morse, an expert on individual agency
    and the intersection of criminal law and mental health has
    observed the following about self-control and our ability to
    measure it:
    "[W]e talk about impulses, the will, and
    self-control as if these are independent
    psychological entities that are
    well-understood and reliably identifiable.
    But theoretical disarray abounds in
    psychology; the studies often contradict each
    other; measures of supposedly the same
    variable correlate poorly; findings are often
    based on suspect self-reports; and, most
    importantly, the studies do not address, and
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    folk psychology does not know, whether and to
    what degree people are unable to refrain from
    acting. Neither in psychology, philosophy,
    nor folk psychology is there a reasonably
    uncontroversial understanding of these
    matters. Finally, we do not know how mental
    disorder affects self-control in general,
    apart from its more clear role in affecting
    perception and belief, which are variables
    central to rationality."
    (Culpability and Control, 142 U Pa L Rev 1587, 1657-1658 [1994]).
    Other experts in the field have commented, "[t]here is no
    empirical proof that an individual diagnosed with a personality
    disorder or paraphilia actually has a neuropsychological
    abnormality, or, if present, the degree to which that abnormality
    may impair behavioral control," and further, "[n]ot only is there
    no method developed by which to assess behavioral control, there
    is no clear definition of what is being measured. Any standard
    would appear to be more normative than scientific" (Miller, et
    al. at 42).
    III
    The standard's deficiencies have become patent when
    courts, including ours, have attempted to apply it in actual
    cases.   Even a cursory review of the psychological/psychiatric
    testimony in our article 10 cases demonstrates the lack of any
    valid scientific method.   Experts before our courts have
    testified that a sex offender has a mental abnormality causing a
    serious difficulty in control based on the following sorts of
    information: (i) commission of a crime in a manner in which it
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    was likely that the offender would face legal consequences
    because the victims knew or could easily identify the defendant
    (Kenneth T., 24 NY3d at 187); (ii) lack of conscience (Floyd Y.,
    
    46 Misc 3d 1225
    [A] at *7); (iii) lack of remorse (id.); (iv) the
    combination of ASPD and paraphilia NOS (Kenneth T., 24 NY3d at
    179); (v) commission of a new sex offense shortly after release
    from a long prison stay (id. at 187)); (vi) admissions from the
    perpetrators that they have difficulty ignoring their sexual
    impulses (id. at 178; Floyd Y., 
    46 Misc 3d 1225
    [A] at *7); (vii)
    ASPD diagnosis (Kenneth T., 24 NY3d at 179; Donald DD. 24 NY3d at
    183; Frank P., 126 AD3d 150, 154 [1st Dept 2015]; John S., 23
    NY3d 326, 334 [2014]); (viii) a sense of entitlement "that if
    it's there [the offender] can take it" (Dennis K., 27 NY3d 718,
    731 [2016]); (viii) reoffending while in a consensual
    relationship (id. at 732); (ix) a diagnosis of paraphilia NOS
    (Frank P., 126 AD3d at 154); (x) offense taking place in a public
    place (John S., 23 NY3d at 337); (xi) a "historical pattern" of
    "reoffending after being sanctioned" (John S., 23 NY3d at 338);
    (xii) failure to participate in sex offender treatment (Floyd Y.,
    135 AD3d at 76; John S., 23 NY3d at 338); (vviii) a pattern of
    offending with vulnerable and easily accessible victims (Floyd
    Y.), among others.   Although we have accepted some of these as
    sufficient evidence when in combination with others, none - apart
    or in combination - lets us know whose mental abnormality causes
    serious difficulty in avoiding reoffense, and who is a volitional
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    recidivist.   To be clear, I am not impugning the integrity of the
    psychiatrists and psychologists who have attempted to provide
    some testimony that might meet article 10's legal standard;
    instead, I observe that we in the legislative and judicial
    branches have erred in uniting psychiatric principles and an
    impossible legal standard in an unhappy marriage, when the
    experts themselves have plainly objected.
    The nature of this unworkable standard is also apparent
    in how various pieces of evidence have been interpreted to prove
    a mental abnormality causing a serious difficulty in control.
    There is no protection in article 10 against using statements
    made while participating in sex offender treatment against the
    offender in later civil commitment proceedings.   Conversely,
    failing to participate fully in sex offender treatment, which
    undoubtedly requires confession of past offenses, will also be
    used against the offender.
    In many cases, there is no recent evidence of an
    offender acting out sexually, to show that he currently suffers
    from a mental abnormality.   The undisputed evidence is that the
    four behavioral violations Floyd Y. received during his
    incarceration were not for sexual or violent infractions, but for
    "package and commissary ones . . . really kind of minor stuff."
    Even though Floyd Y.'s last offense was nearly twenty years ago,
    and he has had no incidents since then, that evidence is
    neutralized with the argument that he was confined, either in
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    prison or civilly in this case, and so his "triggers" were not
    present.   However, in other cases time in prison has been used as
    evidence that the offender has been acting out sexually,
    seemingly indicating that the presence of absence of "triggers"
    should make little difference (see e.g., Matter of Christopher
    PP. v State of New York , 151 AD3d 1334, 1337 [3d Dept 2017]).
    Experts also frequently testify in these cases without
    having ever interviewed the offender.   Their opinions are based
    principally on criminal history (for which the offender has
    already been incarcerated), statements by the offender (often
    from sex offender treatment), diagnoses (which are based on
    criminal history and statements by the offender), and the degree
    of participation in sex offender treatment.
    IV
    Article 9 allows for the confinement of mentally ill
    persons truly in need of confinement.   "If the present sentences
    for sex offenders are too short, the Legislature should make them
    longer, but it should not, and constitutionally cannot, simply
    substitute civil for criminal proceedings as a means of keeping
    dangerous criminals off the streets" (Shannon S., 20 NY3d at 109
    [Smith, J., dissenting]).   Here, the various prior offenses
    presented to the jury as support for Dr. Kirschner's opinion and,
    eventually, a determination that Floyd Y. has a mental
    abnormality that causes him serious difficulty in controlling his
    sexually offending behavior are: (1) the 1984 attempted rape of
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    - 18 -                          No. 102
    J. (no charges); (2) 1992 rape of S. (69 weekend days in jail);
    (3) 1994 sexual assault of H. ($250 fine; $45 surcharge); (4)
    1998 sexual harassment of M. ($0 fine; $45 surcharge); (5) 1999
    sexual molestation of C. (no charges); (6) 1996-1998 molestation
    of his stepchildren (4 to 8 year sentence).    If the State desired
    to incarcerate Floyd Y. beyond the 4 to 8 year sentence imposed
    for his last conviction, it did not have to abandon the prior
    charges or resolve them for small fines.   His victims are hardly
    redressed by his belated civil confinement, and timely and full
    prosecution of those offenses, if justified, may have also
    prevented some of the subsequent ones.   If unjustified (because
    the evidence was weak or conflicted), where is the fairness in
    asking a psychologist to assume their truth?   It is wholly
    inappropriate and unconstitutional to invent a meaningless legal
    standard and seek to meet it by repackaging forgone offenses to
    justify indefinite confinement and strict supervision.
    The prosecution and reduction of sex crimes is
    tremendously important.   However, the stakes of potential
    indefinite confinement are as high as they come, and require a
    reformulation of the relevant standards to adhere to the
    scientific principles and medical methodologies that have
    governed our civil commitment processes under article 9 and the
    Correction Law.   Article 10's standard cannot properly
    distinguish between the typical recidivist of dangerous sexual
    crimes, for whom we have the criminal justice system, and
    - 18 -
    - 19 -                           No. 102
    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" (
    534 US at 412
    ).      It is time to admit that the
    emperor has no clothes.    (Whether he could not help himself
    remains unknowable.)
    *   *   *   *     *   *   *   *     *      *   *   *   *   *   *     *   *
    Judgment appealed from, and order of the Appellate Division
    brought up for review, affirmed, without costs, in a memorandum.
    Chief Judge DiFiore and Judges Rivera, Stein, Fahey, Garcia and
    Feinman concur. Judge Wilson dissents in an opinion.
    Decided October 24, 2017
    - 19 -
    

Document Info

Docket Number: 102

Filed Date: 10/24/2017

Precedential Status: Precedential

Modified Date: 10/24/2017