The opinion of the court was delivered by: Jones, J.:
This opinion is uncorrected and subject to revision before publication in the New York Reports.
The primary issue on this appeal is whether there was legally sufficient evidence to support the finding that respondent Shannon S. suffers from a mental abnormality as defined under article 10 of the Mental Hygiene Law. On the particular facts of this case, we hold there was.
Respondent has an extensive criminal record which includes various sexual offenses involving non-consenting or underage, adolescent victims. In 1992, at nineteen-years of age, respondent was charged with sexual abuse in the third degree for pinning down a female acquaintance on her bed, removing her shirt and fondling her while she struggled to push him away. Respondent subsequently pleaded guilty to disorderly conduct and was sentenced to time served. In 1997, at twenty-four years of age, respondent was charged with rape in the third degree for supplying a fifteen-year-old girl with marijuana and alcohol, and engaging in sexual intercourse. Respondent pleaded guilty to sexual misconduct in satisfaction of the charge and was sentenced to a conditional discharge and a fine. Two years later, in 1999, respondent was charged with the forcible rape and sodomy of a thirteen-year-old girl who was baby-sitting for his sister; the violent nature of the attack resulted in the hospitalization of the victim. Respondent pleaded guilty to rape in the second degree and was sentenced to an indeterminate term of one to three years incarceration.
Upon release in 2002, respondent, at age thirty, commenced a sexual relationship with a sixteen-year-old girl that resulted in her pregnancy. As a result of this relationship, respondent was subsequently charged in 2003 with rape in the third degree, criminal sexual act in the third degree and endangering the welfare of a child. Respondent, however, absconded and was not prosecuted until 2005 when he was apprehended in Florida and returned to New York. Respondent pleaded guilty to criminal sexual act in the third degree and received a sentence of two to four years imprisonment.
While incarcerated, respondent was interviewed, at the request of the New York State Office of Mental Health, by Dr. Jacob E. Hadden, a licensed psychologist and psychiatric examiner. As a result of his personal examination of respondent and a review of the available criminal records, Dr. Hadden diagnosed respondent with paraphilia not otherwise specified (paraphilia NOS), anti-social personality disorder, as well as alcohol abuse. In a written evaluation report, Dr. Hadden concluded that respondent suffers from a mental abnormality within the meaning of article 10 of the Mental Hygiene Law that predisposes him to the commission of sexual offenses and makes it difficult for him to control such behavior. Specifically, Dr. Hadden noted that respondent's criminal history "demonstrated a deviant sexual interest in adolescents below the age of consent" and "his six year pattern of sexual offending behavior toward adolescent females, despite repeated sanctions, and his pronounced cognitive distortions involving sexual relationships with children indicate the presence of a paraphilic disorder with regard to non-consenting adolescent females." Significantly, it was observed that respondent was "unable to give a coherent explanation of why adults should not have sex with children" and instead, "he expressed frustration with several of his victims that they reported the incidents."
As a result, the State filed a petition commencing a proceeding under article 10 for the civil management of respondent (Mental Hygiene Law § 10.06 [a]). In an ensuing probable cause hearing, Supreme Court concluded that probable cause had been established that respondent was a sex offender requiring civil management and directed that he be detained at a secure treatment facility pending trial (Mental Hygiene Law §
At the subsequent non-jury trial, Dr. Hadden reiterated his prior conclusions, opining that respondent suffers from paraphilia NOS, anti-social personality disorder and alcohol abuse without physiological dependence in a controlled environment. Paraphilia NOS was defined as "recurrent and intense sexual fantasies, urges or behaviors which involve . . .
[t]he physical or psychological suffering, including the humiliation of oneself or one's partner or children or other non-consenting partners which occurs over a period of at least six months and results in personal distress or impairment in some clinically significant area of functioning." According to Dr. Hadden, respondent's "four sex offenses with non-consenting partners" fell within the plain definition of paraphilia NOS; more notably, the 1997, 1999 and 2000 offenses also demonstrated respondent's particular sexual proclivity for females below the age of consent. In Dr. Hadden's view, respondent's continuous engagement in sexual relationships with pubescent females, despite his extensive criminal punishments and ostensible attraction to adult females, evinced a compulsive attraction to minor, adolescent females. It was further concluded that respondent's "impulsive" behavior and "irritability and aggressiveness," supported a finding that his paraphilic urges constituted a "congenital or acquired condition" affecting his "emotional, cognitive [and] volitional capacity" and ability to control his sexual offending conduct.
Dr. Stuart M. Kirschner similarly diagnosed respondent as suffering from paraphilia NOS based on his personal examination of respondent and review of respondent's criminal history. Dr. Kirschner determined that respondent's sexual history, particularly his recurrent sexual offenses involving non-consenting minors, satisfied the diagnostic criteria for paraphilia NOS and reflected an apparent attraction to pubescent girls -- a form of paraphilia known as hebephilia. Dr. Kirschner further testified that the absence of hebephilia from the Diagnostic and Statistical Manual of Mental Disorders (DSM), an authoritative text widely used in the mental health profession, would not preclude such a diagnosis, explaining that the DSM "is extremely limited in terms of the paraphilias that are cited" as it only lists "some of the things that a clinician might address in the manual" and thus, is not intended to be "exhaustive in that sense."
Dr. Charles P. Ewing, who testified on respondent's behalf, concluded otherwise, stating that there was insufficient evidence to determine that respondent suffers from recurrent, intense sexual urges or behaviors. In Dr. Ewing's view, there was no evidence that respondent "was sexually aroused particularly by teenage girls"; the three criminal incidents involving pubescent females constituted forcible rape and statutory rape, but were statistically insignificant to base a complete diagnosis that respondent suffers from a mental abnormality. Although he testified that paraphilia NOS is recognized by the DSM, Dr. Ewing took issue with the diagnoses of paraphilia NOS and hebephilia, arguing that hebephilia is neither abnormal nor deviant as "most males are sexually attracted to fully formed pubescent women." Moreover, Dr. Ewing stated that a diagnosis of paraphilia NOS should be reserved for individuals who suffer from sexual disorders that are widely recognized by the medical community and are so unusual as to be "statistically deviant" and "morally deviant," such as pedophilia.
Supreme Court concluded that the State had proven by clear and convincing evidence that respondent suffers from a mental abnormality under article 10 and ordered a dispositional hearing (Mental Hygiene Law § 10.07 [d]). At the subsequent hearing, respondent was found to be a dangerous sex offender requiring civil confinement and was ordered to be committed to a secure treatment facility (Mental Hygiene Law § 10.07 [f]).
The Appellate Division unanimously affirmed (85 AD3d 1646 [4th Dept 2011]) and this Court granted respondent leave to appeal (17 NY3d 894 ).
Respondent's primary contention on this appeal is that absent a diagnosis of a mental disease or disorder listed within the DSM, the evidence is legally insufficient to support a determination that an individual suffers from a mental abnormality under the Mental Hygiene Law. Specifically, respondent asserts that a diagnosis of a mental disorder or defect not contained within the DSM renders it unreliable ...