Supreme Court, Greene County, February 15, 2022

Letitia James, Attorney General, Albany (Joseph A. Muia, Jr. of counsel), for petitioner.

New York State Mental Hygiene Legal Services, Albany (Matthew Bliss of counsel), for respondent.

This is a proceeding under article 10 of the Mental Hygiene Law. Respondent M.M. is an individual held by the New York State Department of Corrections and Community Supervision following his 2019 conviction for attempted sex abuse in the first degree. As set forth in its petition, the State of New York believes that respondent is a sex [*2]offender requiring civil management. To grant the petition, the court must find that respondent is (a) a detained sex offender and (b) that he suffers from a mental abnormality as defined in article 10. The burden is on the State to prove these elements by clear and convincing evidence. The court conducted a hearing, virtually via Microsoft Teams, on January 13, 2022, and January 14, 2022. Because the State failed to prove that the respondent suffers from a mental abnormality, the petition is dismissed.

As a threshold matter, the parties stipulate and agree that respondent is a detained sex offender within the meaning of article 10.

Our Mental Hygiene Law defines a mental abnormality as "a congenital or acquired condition, disease or disorder that affects the emotional, cognitive, or volitional capacity of a person in a manner that predisposes him or her to the commission of conduct constituting a sex offense and that results in that person having serious difficulty in controlling such conduct." (Mental Hygiene Law § 10.03 [i].)^[FN1] To determine whether an individual meets this definition requires a multi-step analysis.{**75 Misc 3d at 748}

A. Respondent's mental illness affects his emotional, cognitive and volitional capacity.

First, the court must consider whether respondent suffers from a "condition, disease or disorder" that affects his "emotional, cognitive, or volitional capacity." While the courts have set up some specific limitations, the condition need not be a defined mental illness under the Diagnostic and Statistical Manual of Mental Disorders (DSM). Also, significantly, the condition need not be a sexually-oriented disorder. (Matter of State of New York v Dennis K., 27 NY3d 718, 743 [2016].)

At the hearing, three mental health professionals testified and submitted reports. The State submitted evidence from Pola Eisenstein-Rosan, Ph.D., and Stuart Kirschner, Ph.D. Respondent submitted evidence from Marc Martinez, Ph.D. The curriculum vitae of all three mental health professionals are in evidence and it is uncontested that each is qualified to give opinion testimony in this matter. All three agree that respondent suffers from one or more mental illnesses, but they disagree on the correct diagnosis.

Dr. Eisenstein-Rosan provided detailed testimony concerning the respondent's offense and mental health history. Her testimony was based on a comprehensive records review and a [*3]two-hour interview of the respondent, in which he participated voluntarily. Dr. Eisenstein-Rosan concluded that respondent met the criteria for four mental illness diagnoses, specifically: (1) schizoaffective disorder, depressive type; (2) other specified personality disorder, antisocial features; (3) unspecified neurodevelopmental disorder; and (4) mild alcohol and mild cannabis use disorders (as to which her diagnosis was provisional).

Dr. Kirschner's evaluation was based on a records review, including the findings of Dr. Eisenstein-Rosan; the respondent declined the opportunity to participate in an interview with Dr. Kirschner. Dr. Kirschner also concluded that respondent met{**75 Misc 3d at 749} the diagnostic criteria for four mental health disorders: (1) schizoaffective disorder, depressive type; (2) antisocial personality disorder; (3) unspecified neurodevelopmental disorder; and (4) opioid/benzodiazepine/alcohol/cannabis use disorder (in a controlled environment). While Dr. Kirschner's diagnoses were not precisely identical to Dr. Eisenstein-Rosan's, overall the court found Dr. Kirschner's testimony to be largely regurgitative of Dr. Eisenstein-Rosan's evaluation. Moreover, while Dr. Eisenstein-Rosan's analysis presented as nuanced, Dr. Kirschner seemed principally to pluck out and emphasize the elements of her analysis that were most detrimental to the respondent. Given his experience, the court will not disregard Dr. Kirschner's assessment, but it accords it very little evidentiary weight.

Dr. Martinez, a court-appointed evaluator, conducted a clinical interview and psychological testing of respondent, comprising approximately 7.5 hours spread over two days. Dr. Martinez also reviewed records and conducted collateral interviews. Dr. Martinez concluded that respondent met the diagnostic criteria of three mental health disorders: (1) antisocial personality disorder (with paranoid traits); (2) bipolar II disorder; and (3) alcohol use disorder, mild, in a controlled environment.

The most significant point of disagreement among the professionals was whether respondent suffered from schizoaffective disorder or bipolar II disorder. The second important distinction was the inclusion of a neurodevelopmental disorder by Drs. Eisenstein-Rosan and Kirschner, which diagnosis Dr. Martinez did not make.

The State is not required to prove a specific diagnosis.^[FN2] Either schizoaffective disorder or bipolar II disorder would plainly suffice. Accordingly, the court concludes that it is unnecessary to resolve the diagnostic disagreements. Indeed, respondent's medical history is replete with uncertainty about the precise label to apply to his conditions. Prior diagnoses have included bipolar disorder and major depressive disorder. What is clear, therefore, is that the respondent suffers from one or more mental illnesses. He has been under mental health care, inconsistently, for more than two decades. He has received{**75 Misc 3d at 750} inpatient care on half a dozen occasions. He reports long-term auditory hallucinations—although there is no evidence he acts on them and Dr. Martinez questions their clinical significance. Respondent has been prescribed multiple psychiatric medications over the years. In addition, respondent's medical history suggests congenital problems that were manifested in the developmental delays that repeatedly impacted his truncated formal schooling. Accordingly, the court finds that the record contains clear and [*4]convincing evidence that the respondent suffers from at least one mental health "condition, disease or disorder."

The next inquiry is whether such conditions affect respondent's "emotional, cognitive, or volitional capacity." The evidence similarly confirms that they do. As summarized by Dr. Eisenstein-Rosan:

"The respondent's history is replete with impulsive acts. His sex offenses appear to be largely impulsive and/or opportunistic. He has never held a job for a long period of time. He has always failed at community supervision. He has committed petty crimes to pay for drugs. He has led a marginal existence, mostly financially supported by his family and this allowed him to remain impulsive and immature. Of note, during the interview for the SOTNA, 'He reported he gave no consideration for his probation conditions and justified ongoing engagement with young girls "because I wanted to." He stated, "I just don't think." ' He reported some of the same phrasing in the current evaluation, often saying, 'I don't know' when asked why he did things." (Petition exhibit 4 at 33.)

It is plain that respondent's behavioral problems, both criminal and non-criminal, are rooted in his mental health struggles. Accordingly, the court finds, by clear and convincing evidence, that respondent's conditions affect his emotional, cognitive or volitional capacity.

B. The State has failed to prove that respondent's mental health conditions predispose him to commit sex offenses.

It is insufficient for a respondent's mental illness to impair his volitional capacity generally. Rather, the impairment must specifically predispose him to commit sex offenses. It is at this point that the State's evidence fails.

As a starting point, the court agrees with Dr. Martinez that the court should first consider whether the respondent's conditions{**75 Misc 3d at 751} themselves indicate such a predisposition, without regard to his prior behavior. Significantly, none of the experts diagnose respondent with a sexually-focused mental illness. While such a diagnosis is not required, the absence of such a diagnosis requires the court to be particularly attentive to ensuring that there is a proven, causal link between the individual's mental health conditions and sexual misbehavior. It is affirmatively not the case that persons diagnosed with bipolar II disorder, schizoaffective disorder or neurodevelopmental disorders are thereby predisposed to commit sex crimes. It is, however, appropriate to next consider whether the manifestation of such disorders in this particular respondent predispose him to commit sex offenses.

"Sex offense" is a defined term under the Mental Hygiene Law; it does not refer to every incident of criminal conduct that may involve sexual desire or gratification. With a few exceptions not relevant here, "sex offenses" for purposes of article 10 are limited to sexual felonies. (Mental Hygiene Law § 10.03 [p].) The State must prove, by clear and convincing evidence, that respondent has a disposition to commit such felonies.

The respondent has a lengthy history of committing offenses that have a sexual component,^[FN3] mostly in the form of what might be generally categorized as sexual harassment. In [*5]particular, respondent has a history of grabbing or swatting the buttocks of teenage girls, through their clothing, in public places. Respondent's sexual misconduct resulted in several misdemeanor charges being filed against him over the years. The court has reviewed the details of the conduct as set forth in the petition and the reports of the medical experts and it appears that the misdemeanor charges accurately fit the alleged conduct—as opposed, for example, to reflecting plea bargaining notwithstanding more serious offense conduct. Respondent's qualifying offense largely involved similar conduct to that in{**75 Misc 3d at 752} his criminal history but was rendered a felony by virtue of the age difference between himself and the victim.

The State's evidence has established that the respondent, despite himself being a victim of years' long childhood sexual abuse and despite suffering from serious mental illnesses since his teenage years, has committed exactly one sex offense in his lifetime.^[FN4] Combined with the fact that none of the experts have diagnosed him with a sexual disorder, the State's evidence falls far short of establishing by clear and convincing evidence that the respondent is predisposed to commit sex offenses. Moreover, there is nothing in the evidence to suggest that the nature of his behavior has been escalating. Indeed, by effectively proving that the respondent is predisposed to commit sexual misdemeanors, the State has essentially established that the respondent has the volitional capacity to refrain from committing the more serious offenses encompassed by article 10.

In light of the court's conclusion that respondent does not have a condition, disease or disorder that predisposes him to commit sex offenses, it is unnecessary to consider the final question of whether he has serious difficulty in refraining from such misconduct.

Based on the foregoing, it is hereby ordered that the petition is dismissed.