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In re Application for Discharge of Rasheem S.

Supreme Court, Oneida County

January 3, 2018

In the Matter of the Application for Discharge of Rasheem S., Consec. No. 547442, from Central New York Psychiatric Center, Pursuant to MHL § 10.09, Petitioner
v.
The State of New York, The New York State Office of Mental Health, and The New York State Department of Corrections and Community Supervision, Respondents. In the Matter of the Application for Discharge of Christopher B., Consec. No. 241959, from Central New York Psychiatric Center, Pursuant to MHL § 10.09, Petitioner The State of New York, The New York State Office of Mental Health, and The New York State Department of Corrections and Community Supervision, Respondents. In the Matter of the Application for Discharge of Christopher B., Consec. No. 241959, from Central New York Psychiatric Center, Pursuant to MHL § 10.09, Petitioner
v.
The State of New York, The New York State Office of Mental Health, and The New York State Department of Corrections and Community Supervision, Respondents.

          For the Petitioner: Mental Hygiene Legal Service, Fourth Judicial Department, Emmett J. Creahan, Director, By: Benjamin D. Agata, Esq., for Rasheem S., Michael H. McCormick, Esq., for Christopher B.

          For the Respondents:, State of New York, Office of the Attorney General, Eric T. Schneiderman, Esq., Attorney General By: Bridget S. Thompson, Esq., Assistant Attorney General

          DECISION & ORDER

          HON. LOUIS P. GIGLIOTTI, AJSC

         Petitioners Rasheem S. and Christopher B. are subject to civil confinement at Central New York Psychiatric Center ("CNYPC") pursuant to article 10 of the Mental Hygiene Law ("MHL"). As part of their annual review processes, each petitioner's current mental condition was separately evaluated by a psychiatric examiner employed with the New York State Office of Mental Health ("OMH"). (See MHL § 10.09(b)).

         Rasheem S. interviewed with Sarah DeMarco, Psy.D., on August 30, 2016. In her written report dated October 5, 2016, Dr. DeMarco diagnosed Rasheem S. with hypersexuality and antisocial personality disorder ("ASPD"), as well as assigned the condition of psychopathy. (See Affirmation of Benjamin D. Agata, Esq., Exhibit A). On April 10, 2017, Dr. DeMarco issued an addendum to her report, in which she clarified that she believes Rasheem S. suffers from the condition of hypersexuality and not a diagnosis of hypersexual disorder. [1]

         Prior to engaging in his interview with Dr. DeMarco, Rasheem S. filed an omnibus motion with this Court seeking, inter alia, the appointment of Mental Hygiene Legal Service ("MHLS") as counsel and Leonard A. Bard, Ph.D. as an independent examiner. The Court granted said motion. Dr. Bard interviewed Rasheem S. on December 6, 2016, and in his written report dated January 24, 2017, Dr. Bard opined that Rasheem S. cannot be diagnosed with any paraphilic disorder found in the Fifth Edition of the Diagnostic and Statistical Manual ("DSM-V"). Nor did he think Rasheem S. currently suffers from ASPD.

         With respect to Christopher B., in October 2015, he moved for the appointment of MHLS as counsel and for a stay of his annual review proceeding. The Court granted this motion. Meanwhile, Christopher B. interviewed with Roy Aranda, Psy.D., J.D., an independent examiner, on June 30, 2016. Christopher B. was scheduled to be interviewed on August 19, 2016 by OMH psychiatric examiner Sujatha Ramesh, Ph.D., but he refused to attend. Based upon a records review, Dr. Ramesh issued a written report dated September 12, 2016, in which she diagnosed Christopher B. with ASPD and assigned the condition of hypersexuality. She considered, but did not assign, either pedophilic disorder or what she classified as "other paraphilic interests, " to include voyeurism, frotteurism and exhibitionism. Christopher B. thereafter asked to have the stay of his proceedings lifted and sought the formal appointment of Dr. Aranda as his independent expert. The Court granted these requests. Dr. Aranda thereafter issued a written report, dated November 21, 2016, in which he opined that Christopher B. should remain in civil confinement. His report does not identify upon what condition, disease or disorder he premised his opinion.

         Pending before the Court are separate motions filed by Rasheem S. and Christopher B. requesting a Frye hearing to determine the admissibility of evidence concerning and related to hypersexuality. MHLS counsel consented to the consolidation of these motions for the purpose of hearing oral argument and issuing a decision. Oral argument was heard on June 29, 2017, and MHLS submitted additional caselaw on July 5, 2017. The Court has carefully considered the arguments posited by MHLS and the Attorney General's office in concluding that these motions should be denied.

         DISCUSSION

         Frye hearings are conducted when questions exist as to whether proposed expert testimony is based upon a scientific principle or procedure that is sufficiently established to have gained general acceptance in its particular field. (See People v. Wernick, 89 N.Y.2d 111');">89 N.Y.2d 111, 115 [1996]). As explained by the Court of Appeals, the test emphasizes the counting of scientists' votes, and not verifying the soundness of a scientific conclusion. (See People v. LeGrand, 8 N.Y.3d 449, 457 [2007][internal quotation marks and citations omitted]).

         The State argues that Frye hearings are inapplicable to clinical diagnoses. The affirmation submitted by the Assistant Attorney General includes a copy of an unreported decision from Nassau County Supreme Court in January 2015, which denied a Frye motion relative to paraphilia not otherwise specified ("paraphilia NOS") (non-consent) and other specified paraphilic disorder ("OSPD") (biastophilia [non-consent] with sexually sadistic traits). (See State of New York v. Ronald Smith, Index No. 01557-2014, [Sup Ct, Nassau County 2015]). In that case, the Court reasoned that the sciences of psychology and psychiatry were at issue, neither of which was novel. The Court also declined to find that paraphilia NOS and OSPD were not generally accepted diagnoses, instead pointing to the importance of evaluating the specific facts of each case, weighing the strength of a diagnosis, and drawing conclusions.

         Ronald Smith stands in contrast to the myriad of Frye hearings that have been subsequently granted in MHL article 10 cases relative to particular diagnoses. Moreover, the Ronald Smith decision relied in part upon the trial court decision in Matter of State of New York v. Richard S., which denied a Frye hearing as to paraphilia NOS. The Second Department reversed that determination and remanded the case so that such a hearing could be held. (See Matter of State of New York v. Richard S., 133 A.D.3d 672, 673 [2d Dept 2015]).

         While the State also cited a number of cases from jurisdictions outside New York declining to grant Frye hearings relative to psychological diagnoses, such precedent is not binding here. The Court of Appeals in Matter of State of New York v. Donald DD., 24 N.Y.3d 174, 186-87 [2014], raised the specter of Frye hearings in the context of civil confinement proceedings when the majority referenced a statement made by three of its members in an earlier minority opinion (see Matter of State of New York v. Shannon S., 20 N.Y.3d 99');">20 N.Y.3d 99 [2012]), that there was "grave doubt" whether paraphilia NOS "would survive a Frye hearing." Moreover, in the context of criminal trials, psychological theories have been evaluated within the Frye framework for decades. (See, e.g., Matter of Nicole V., 71 N.Y.2d 112, 120-21 [1987] [affirming admission of expert testimony regarding sexually abused child syndrome, because it is a recognized diagnosis; People v. Taylor, 75 N.Y.2d 277, 285-87 [1990] [concluding rape trauma syndrome is generally accepted within relevant scientific community]; Wernick, 89 N.Y.2d 111');">89 N.Y.2d 111 [affirming exclusion of opinion testimony by psychiatric experts that the defendant suffered a brief reactive psychosis causing her to kill her newborn baby]; People v. Fortin, 184 Misc.2d 10');">184 Misc.2d 10 [County Ct, Nassau County 2000], aff'd, 289 A.D.2d 590 [2d Dept 2001], lv denied, 97 N.Y.2d 754');">97 N.Y.2d 754 [2002] [involving stipulation to a Frye hearing to determine whether evidence could be heard regarding a psychological theory called Parental Alienation Syndrome]). In sum, at least in New York, psychological diagnoses have been considered proper subject of a Frye analysis.

         That being said, the mere fact that a psychological diagnosis is at issue does not necessarily result in a Frye hearing being held. (See People v. LeGrand, 8 N.Y.3d 449, 457-58 [2007] ["[W]e recognize that this Court and other New York courts have permitted and upheld a qualified expert's testimony regarding research findings on patterns of human behavior without first requiring a Frye hearing."] [citing Matter of Nicole V. and People v. Taylor as examples]). In support of their motions to hold a hearing in Rasheem S.'s and Christopher B.'s cases, MHLS counsel submitted attorney affirmations, with these identical exhibits: unsigned affidavit by Dr. Bard; an article written by Martin P. Kafka for the purpose of proposing Hypersexual Disorder as a new psychiatric disorder to be included when the DSM-V was published; and articles written respectively by Charles Moser, J. Paul Fedoroff, M.D., and Jason Winters, calling into question the propriety of Kafka's proposal. MHLS argues that because hypersexual disorder was considered but ultimately excluded from the DSM-V, this outcome is evidence that hypersexuality is not generally accepted. MHLS further points to the Second Department's decision in Richard S., in which the Court determined that a Frye hearing was warranted because the motion was accompanied by "scientific literature." (See ...


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