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
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
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.
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
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
LOUIS P. GIGLIOTTI, AJSC
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)).
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. 
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.
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.
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.
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 ).
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 [internal quotation
marks and citations omitted]).
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
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]).
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 ,
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 ), 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  [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  [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
 [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.
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  ["[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