The Matter of the State of New York v. Dennis K. , The Matter of the State of New York v. Anthony N., The Matter of the State of New York v. Richard TT.

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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 106
In the Matter of State of New
York,
Respondent,
v.
Dennis K.,
Appellant.
-----------------------------
No. 107
In the Matter of State of New
York,
Respondent,
v.
Anthony N.,
Appellant.
-----------------------------
No. 108
In the Matter of State of New
York,
Respondent,
v.
Richard TT.,
Appellant.

Case No. 106:
Timothy M. Riselvato, for appellant.
Karen W. Lin, for respondent.
Case No. 107:
Mark C. Davison, for appellant.
Jonathan D. Hitsous, for respondent.
Case No. 108:
Shannon Stockwell, for appellant.
Allyson B. Levine, for respondent.
PIGOTT, J.:
In Matter of State of New York v Donald DD. (24 NY3d
174 [2014)], we held that, in a trial conducted pursuant to
Mental Hygiene Law article 10, "evidence that a respondent

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suffers from antisocial personality disorder (ASPD) cannot be
used to support a finding that he [or she] has a mental
abnormality as defined by Mental Hygiene Law § 10.03 (i), when it
is not accompanied by any other diagnosis of mental abnormality"
(id. at 177 [emphasis supplied]).
Like the respondent in Donald DD., respondents Dennis
K., Anthony N. and Richard TT. have been diagnosed with ASPD.1
Unlike the respondent in Donald DD., however, they have been
diagnosed with conditions, diseases and/or disorders in addition
to ASPD. Notwithstanding this significant distinction,
respondents argue that our holding in Donald DD. warrants the
dismissal of the petitions brought against them pursuant to
Mental Hygiene Law § 10.06 (a). For the reasons that follow, we
reject that argument and hold that in each of the Mental Hygiene

1
An "essential feature of [ASPD] is a pervasive pattern of
disregard for, and violation of, the rights of others that begins
in childhood or early adolescence and continues into adulthood"
(American Psychiatric Association, Diagnostic and Statistical
Manual of Mental Disorders 659 [5th ed 2013] [hereafter "DSM-
V"]). There are four diagnostic criteria supporting the
diagnosis: (1) the person is over the age of 18; (2) there is
evidence that the person had an onset of conduct disorder before
the age of 15; (3) the occurrence of antisocial behavior did not
"exclusively occur" during the course of bipolar disorder or
schizophrenia; and (4) the person has displayed "[a] pervasive
pattern of disregard for and violation of the rights of others,
occurring since the age of 15" (id.) With regard to the last
criterion, the person must display three or more of the following
seven traits: failure to conform to social norms; deceitfulness;
impulsivity; irritability and aggressiveness; reckless disregard
for one's safety or that of others; consistent irresponsibility;
and lack of remorse (see id.).

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Law article 10 proceedings, "the evidence, considered in the
light most favorable to the State, was sufficient to support the
. . . verdict[s]" that respondents suffered from a "mental
abnormality" as defined in the Mental Hygiene Law (Matter of
State of New York v John S., 23 NY3d 326, 348 [2014] [citations
omitted]). Accordingly, in Matter of State of New York v Dennis
K. and Matter of State of New York v Anthony N., we affirm the
Appellate Division orders. In Matter of State of New York v
Richard TT., we affirm the order of the Appellate Division and
answer the certified question in the negative.
I.
Mental Hygiene Law article 10 is designed to reduce the
risks posed by, and to address the treatment needs of, sex
offenders who suffer from mental abnormalities that predispose
them to commit repeated sex crimes (Mental Hygiene Law §§ 10.01
[b], 10.03 [i]). The law defines "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]). Thus, not only must the State
establish by clear and convincing evidence the existence of a
predicate "condition, disease or disorder," it must also link
that "condition, disease or disorder" to a person's

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predisposition to commit conduct constituting a sex offense and
to that person's "serious difficulty in controlling such
conduct."
Substantive due process requires that evidence of a
respondent's "serious difficulty in controlling behavior . . .
when viewed in light of such features of the case as the nature
of the psychiatric diagnosis, and the severity of the mental
abnormality itself, must be sufficient to distinguish the
dangerous sexual offender whose serious mental illness,
abnormality or disorder subjects him to civil commitment from the
dangerous but typical recidivist convicted in an ordinary
criminal case" (Kansas v Crane, 534 US 407, 413 [2002]). When
considering Mental Hygiene Law article 10 petitions, courts must
be sure that civil commitment is not utilized as punishment or
deterrence, but, rather, to serve the aims of providing the
necessary treatment to sex offenders while concomitantly
protecting the public from potential sexual assaults (see
generally Mental Hygiene Law § 10.01 [a]).
II.
As evidenced by these current appeals, a significant
issue that repeatedly arises is what constitutes legal
sufficiency of a mental abnormality for purposes of article 10.
We addressed that issue in Matter of State of New York v Shannon
S. (20 NY3d 99 [2012]), where the respondent was diagnosed with,

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among other things, ASPD and paraphilia NOS.2 The particular
paraphilia with which the respondent was diagnosed was
"hebephilia," which is defined as an attraction to pubescent
girls, and is not contained in the American Psychological
Association's Diagnostic and Statistical Manual of Mental
Disorders (DSM) (id. at 105).
In Shannon S., we rejected the respondent's primary
contention that, to qualify as a mental abnormality under the
Mental Hygiene Law, a diagnosis of a mental disease or disorder
must be listed in the DSM, recognizing that section 10.03 (i)
"does not reference or require that a diagnosis be limited to
mental disorders enumerated within the DSM" (id. at 105-106). We
also found that a diagnosis of paraphilia NOS is "a viable
predicate mental disorder or defect that comports with minimal
due process" such that any issue pertaining to its reliability as
a predicate condition is "a factor relevant to the weight to be

2
As we noted in Donald DD., "'[t]he essential features of
a [p]araphilia are recurrent, intense sexually arousing
fantasies, sexual urges, or behaviors generally involving 1)
nonhuman objects, 2) the suffering or humiliation of oneself or
one's partner, or 3) children or other nonconsenting persons that
occur over a period of at least 6 months'" (Donald DD., 24 NY3d
at 179 n 1, quoting American Psychiatric Association, Diagnostic
and Statistical Manual of Mental Disorders 566 [4th ed Text Rev.
2000] ["DSM-IV-TR"]). Paraphilia NOS is a category that "is
included for coding Paraphilias that do not meet the criteria for
any of the specific categories," such as, among other things,
"telephone scatologia (obscene phone calls), necrophilia
(corpses), partialism (exclusive focus on part of body),
zoophilia (animals), coprophilia (feces), klismaphilia (enemas),
and urophilia (urine)" (DSM-IV-TR, at 576).

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attributed to the diagnosis, an issue properly reserved for
resolution by the factfinder" (id. at 107 [citations omitted]).
Based on the particular facts of Shannon S., we concluded that
there was an adequate record to assess the paraphilia NOS
diagnosis and we found no basis to disturb the affirmed findings
of fact of Supreme Court (see id. at 107-108).
Two years later, we observed in Donald DD. "that ASPD
establishes only a general tendency toward criminality, and has
no necessary relationship to a difficulty in controlling one's
sexual behavior" (Donald DD., 24 NY3d at 191). Noting that the
expert testimony and statistics indicated that well over half of
the prison population (and in some instances up to 80% of
incarcerated individuals) could be diagnosed with ASPD, we
concluded that an ASPD diagnosis, by itself "simply does not
distinguish the sex offender whose mental abnormality subjects
him to civil commitment from the typical recidivist convicted in
an ordinary criminal case" (id. at 189-190). Absent evidence of
an "independent mental abnormality diagnosis," evidence of ASPD,
coupled with testimony concerning the sex crimes that Donald DD.
had committed, was insufficient to support Supreme Court's
finding of mental abnormality (id. at 191). We explained that
our holding did not conflict with Shannon S. because the
paraphilia NOS diagnosis in that case, "whatever its strength or
weakness as an evidentiary matter, [wa]s, at the very least,
potentially relevant to a finding of predisposition to conduct

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constituting a sex offense" and that the same could not be said
of ASPD (id. [emphasis supplied]).
Finally, in Matter of State of New York v Kenneth T.,
the companion case to Donald DD., the State's psychologist
testified that Kenneth T.'s disorders of ASPD and paraphilia NOS,
together, predisposed him to the commission of conduct
constituting a sex offense and resulted in his having serious
difficulty controlling that conduct (see Donald DD., 24 NY3d at
178-179). We acknowledged that "[p]araphilia NOS is a
controversial diagnosis" but declined to overrule Shannon S.'s
holding that such a diagnosis was sufficient to support a finding
of mental abnormality, noting that Kenneth T. had not made a
motion for a Frye hearing to challenge the general acceptance of
that diagnosis in the scientific community (id. at 187).
In Kenneth T., we assumed for the sake of argument that
paraphilia NOS constituted a condition that met the
"predisposition" prong of section 10.03 (i), but nonetheless held
that the State failed to establish by clear and convincing
evidence that Kenneth T. had "'serious difficulty in controlling'
his sexual misconduct within the meaning of section 10.03 (i)"
(id.). We concluded that testimony by the State's psychologist
that Kenneth T. had carried out offenses that allowed for his
identification by the victims, and that he had attempted a second
rape after having served a lengthy prison sentence for the first
offense, was insufficient to establish the "serious difficulty"

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prong of section 10.03 (i) (id.). While acknowledging that sex
offenders are not known for their self-control, we stated that
"it is rarely if ever possible to say, from the facts of a sex
offense alone, whether the offender had great difficulty in
controlling his urges or simply decided to gratify them" (id. at
188). We did not delineate "from what sources sufficient
evidence of a serious difficulty controlling sex-offending
conduct may arise," but noted that "[a] detailed psychological
portrait of a sex offender would doubtless allow an expert to
determine the level of control the offender has over his sexual
conduct" (id. at 188).
Having summarized our relevant precedent concerning
legal sufficiency in Mental Hygiene Law article 10 proceedings,
we now consider the evidence presented in each of the following
appeals.
III.
Dennis K.
Respondent Dennis K. has committed numerous sexual
offenses against female victims. In June 1975, when he was 15
years old, he, along with three members of his gang, raped a 19-
year-old woman. Two days later, with three accomplices in tow,
he raped and robbed a 25-year-old woman. As a result of his
commission of these offenses, he was convicted of numerous
crimes, including rape, sodomy and sexual abuse, all in the first
degree. He was adjudicated a youthful offender and sentenced to

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a term of 18 months to 3 years in state prison. In October 1977,
two months after being released on parole, respondent, along with
another person, held a woman captive for over an hour, raped her
twice, assaulted her with a bottle and stole her money and
jewelry. After a jury trial, he was convicted of, among other
crimes, two counts of rape in the first degree, and was sentenced
to 8 1/3 to 25 years' imprisonment. He was released on parole in
1989. In April 1992, three years after his release, and while
still on parole, he held a 17-year-old pregnant female at
gunpoint, forced her to go to a nearby park with him and raped
and robbed her. He pleaded guilty to rape in the first degree
and was sentenced to 8-16 years' imprisonment.
Mental Hygiene Law article 10 Proceeding
On March 10, 2010, the State commenced a civil
commitment proceeding against respondent pursuant to Mental
Hygiene Law article 10 (see Mental Hygiene Law § 10.06 [a]). The
petition alleged that he was a "detained sex offender" who
suffered from a "mental abnormality"; namely, ASPD and paraphilia
NOS.
In September 2011, pursuant to Mental Hygiene Law §
10.07, Supreme Court held a jury trial to determine whether
respondent suffered from a mental abnormality within the meaning
of section 10.03 (i). The State's sole witness, licensed
psychologist Dr. Stuart Kirschner, had evaluated respondent at a
correctional facility in April 2011 and also reviewed his

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pertinent criminal history and psychological records in
preparation for the evaluation and trial. Notably, while
participating in a sex offender treatment program, respondent
referred to himself as a "sadistic power rapist," which Dr.
Kirschner found to be significant because it indicated that there
was an overall "theme" whereby it was important to respondent
that he be able to "exert power and control over others even
though the other individual or the victim might resist."
Respondent claimed that as a member of a gang, he could have sex
with any of the female gang members, but that he committed the
1975 rapes because he wanted to have sex with a non-gang member.
Dr. Kirschner found this to be significant because, although
respondent could gratify his sexual needs through his gang
membership, respondent's sexual desires drove him to victimize
non-consenting women outside the gang.
Dr. Kirschner testified that respondent suffers from
paraphilia NOS and ASPD, both of which are found in the DSM-IV-
TR. The doctor explained that paraphilia involves sexual urges,
fantasies or behaviors that involve either humiliation of, or the
infliction of physical pain on, other individuals. The NOS
portion of the paraphilia diagnosis is utilized where the
individual does not meet the specific criteria of a particular
paraphilia disorder, but it nonetheless is an accepted diagnosis
that is utilized in the evaluation of sex offenders. In terms of
paraphilia NOS (non-consent), the term, "non-consent" refers to

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an unwilling participant who either does not, or is unable to
give, consent.
In Dr. Kirschner's opinion, paraphilia NOS predisposed
respondent to commit sex offenses because he has a "sense of
entitlement that he [can] have what he wants at will, it's just a
matter of overtaking the person" such that, if he has an urge, he
feels entitled to act upon it without concern for the victim.
Dr. Kirschner did not render this diagnosis merely because
respondent had committed rapes. His opinion was based on
respondent's concession that he has had numerous consensual
sexual relationships with females, has frequented prostitutes on
multiple occasions, and, despite such access to consenting
partners, he has still committed rapes, which indicates that
"[s]omething is definitely going on with [respondent] in regards
to his sex urges and drives."
According to Dr. Kirschner, he diagnosed respondent
with ASPD because respondent met all four criteria of that
disorder: (1) he displayed evidence of conduct disorder prior to
the age of 15 (through his gang membership and truancy); (2) he
was at least 18 years old (and consistently engaged in conduct as
an adult that constituted grounds for arrest); (3) his antisocial
behavior did not occur during a course of schizophrenia or
bipolar disorder (there is no evidence that respondent's behavior
occurred as a result of either diagnosis); and (4) he has shown a
pervasive disregard for and violation of the rights of others.

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Dr. Kirschner testified that, with respect to the fourth
criterion, respondent met all seven of the maladaptive traits.
Dr. Kirschner explained that while approximately 85% of the
prison population meets the ASPD criteria, that did not mean that
all sex offenders necessarily suffer a mental abnormality as a
result of that particular diagnosis. However, in his opinion,
respondent is a "life-persistent offender" because his antisocial
behavior extended well beyond adolescence and early adulthood.
When asked to provide a connection between respondent's
ASPD diagnosis and his sexual behavior, Dr. Kirschner testified
that respondent had given a number of examples concerning a
"disturbance" in his ability to control his impulses and urges
that predisposes him to the commission of sex offenses. For
instance, respondent has a sense of entitlement "that if it's
there, he can take it." With regard to the 1992 offense,
respondent acknowledged that it was an "act of power and control"
over a person who was rejecting his advances and that he was
determined to "get what he wanted." Moreover, according to Dr.
Kirschner, respondent has "sexualized" power and control such
that, not only is he predisposed to committing offenses in
general, he is particularly predisposed to committing offenses of
a sexual nature because he derives gratification from
overpowering people whom he thinks he can control.
Dr. Kirschner also testified that respondent has
displayed an "impulsivity" over the course of his life that

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speaks to the issue of "the volitional component and inability to
control one's urges." Specifically, he has been confined for
most of his adult life, and during the limited times that he had
been out of confinement, he ultimately reoffends. That he was in
"consensual sexual relationships" at the times he offended in
1975, 1977 and 1992 but still felt the need to look outside those
relationships for sexual gratification further indicated that his
desire for "power" and "control" merged with sexual needs that
are not met in his primary relationships.
At the conclusion of the State's case, respondent moved
to dismiss the petition on the ground that the State failed to
meet its burden of establishing by clear and convincing evidence
that he suffered from a mental abnormality. Supreme Court denied
the motion.
Respondent called licensed psychologist, Dr. Jeffrey
Singer, who likewise diagnosed respondent with ASPD, but claimed
that there was no basis to diagnose him with paraphilia. With
regard to the ASPD diagnosis, Dr. Singer testified that such a
diagnosis does not mean that respondent has a mental abnormality,
finding it significant that respondent had gone 17 years while
incarcerated without committing a sexual offense and that he had
successfully completed a sex offender treatment program in 2008-
2009.
During summation, the State argued that the paraphilia
NOS and ASPD diagnoses together predisposed respondent to commit

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sexual offenses and resulted in his "serious difficulty in
controlling his predisposition to sexually reoffend."
The jury concluded that respondent had a mental
abnormality as defined by Mental Hygiene Law § 10.03 (i). The
court thereafter held a dispositional hearing, pursuant to Mental
Hygiene Law § 10.07 (f), and determined, among other things, that
respondent was a dangerous sex offender requiring confinement and
committed him to a secure treatment facility. As relevant here,
respondent appealed the order of Supreme Court that determined,
after the jury trial, that respondent suffered from a mental
abnormality and that he was a dangerous sex offender requiring
confinement.
The Appellate Division affirmed, holding that the
State's expert testimony that respondent suffered from paraphilia
NOS and ASPD was legally sufficient to support the jury's finding
of mental abnormality (120 AD3d 694, 695 [2d Dept 2014]). It
also determined that remarks made by the assistant attorney
general during summation did not deprive respondent of a fair
trial in light of the court's jury charge, and that Supreme Court
did not err in denying respondent's application to preclude
certain expert testimony at the dispositional hearing or in
denying respondent's post-dispositional hearing motion to strike
portions of that expert's testimony on the ground that the expert
allegedly violated the Health Insurance Portability and
Accountability Act of 1996 (HIPAA) (id. at 695-696). Finally,

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the Appellate Division determined that Supreme Court properly
found that there was clear and convincing evidence to support its
determination that respondent was a dangerous sex offender
requiring confinement (see id. at 696).
This Court granted respondent leave to appeal.
Legal Sufficiency
Respondent first contends that the State failed to
establish by clear and convincing evidence that he has a
"condition, disease or disorder that affects" his "emotional,
cognitive, or volitional capacity . . . in a manner that
predisposes him . . . to the commission of conduct constituting a
sex offense." Relying on Donald DD.'s holding that ASPD, by
itself, is insufficient to support a finding of mental
abnormality, respondent argues that the sufficiency analysis thus
turns on whether paraphilia NOS is a sufficient predicate
condition, and, according to respondent, it is not. We disagree.
Unlike the sole diagnosis of ASPD in Donald DD., there
were two diagnoses here: ASPD and paraphilia NOS. Thus, this
case is distinguishable from Donald DD. in that, here, the
diagnosis of ASPD is accompanied by a diagnosis of a "condition,
disease or disorder" that we have already recognized as
"potentially relevant to a finding of predisposition to conduct
constituting a sex offense" (Donald DD., 24 NY3d at 191).
In that respect, this case is similar to Shannon S.,
which involved diagnoses of ASPD and paraphilia NOS. There, we

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held that paraphilia NOS is "a viable predicate mental disorder
or defect that comports with minimal due process" (Shannon S., 20
NY3d at 107). Moreover, in Donald DD., we acknowledged that
Shannon S. did not address the specific question whether a
paraphilia NOS diagnosis was generally accepted in the scientific
community because counsel failed to request a Frye hearing, and
we similarly declined to address that particular question in
Donald DD. because no Frye hearing was requested or held (see
Donald DD., 24 NY3d at 187). Likewise, here, to the extent that
respondent challenges the validity of paraphilia NOS as a
predicate "condition, disease or disorder," we need not reach
that argument because he did not mount a Frye challenge to the
diagnosis.
Respondent's second challenge to the sufficiency of the
mental abnormality determination focuses on the "serious
difficulty in controlling" prong of the mental abnormality test.
Relying on Donald DD., respondent argues that the State relied on
the fact that he committed sex offenses to meet its burden in
that respect. The State correctly concedes that the mere fact
that a rapist overpowers a nonconsenting victim is insufficient
to support an article 10 petition or an underlying diagnosis of
paraphilia NOS. It is evident from this record, however, that
the State did more than simply rely on respondent's commission of
the offenses -- it presented "[a] detailed psychological
portrait" that enabled Dr. Kirschner to determine the level of

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control respondent had over his conduct (Donald DD., 24 NY3d at
188).
Dr. Kirschner found it significant that respondent
referred to himself as a "sadistic power rapist" because it
indicated that he enjoyed being able to "exert power and control
over others" in the face of resistance. Respondent has
"sexualized power and control" to the point where a consensual
relationship does not gratify him because "power, control,
violence [have] all merged with his sexual need."
In short, Dr. Kirschner's testimony established that
respondent has difficulty controlling his paraphilic urge to
commit sex crimes by both overpowering and assaulting
nonconsenting victims, and engages in this conduct
notwithstanding the fact that numerous consensual sexual
relationships are available to him. The "psychological portrait"
painted by the State is that respondent becomes sexually aroused
by overpowering nonconsenting women and has serious difficulty in
controlling such conduct. We conclude that, on this record, the
evidence presented was legally sufficient to establish by clear
and convincing evidence that respondent has "serious difficulty
in controlling" his sexual misconduct.
Remaining Issues
Respondent's contention that certain summation remarks
made by the assistant attorney general deprived him of a fair
trial is unpreserved for our review (see generally People v

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Tonge, 93 NY2d 838, 839-840 [1999]). His related contention that
Supreme Court should have issued a curative instruction to
address the assistant attorney general's comment during summation
that "indicated to the jury that given the option of not
accepting any testimony ultimately from either [the State's or
respondent's] expert, [it] could still decide this case because
they could connect the dots" is before us. Indeed, respondent's
counsel asked the court to charge the jury that although it could
"reject to whatever extent either of the
experts' testimony, that [its] verdict must
be based on the evidence in this case, and
that evidence consists entirely of testimony.
To clarify, that they, in fact, have to rely
on clear and convincing evidence supplied by
the attorney general and cannot discount that
and still find a verdict in their favor."
The court declined to give that particular instruction,
but stated that it would apprise the jury of the appropriate
standard and that it must decide the case based on the record
evidence. It thereafter charged the jury that the State had the
burden of demonstrating by clear and convincing evidence that
respondent suffered from a mental abnormality, and that, in
making such a determination, the jury was to rely on only the
testimony and the exhibits and that it was up to the jury to
determine what weight to give the expert testimony. Finally, the
court instructed the jury that it was required to apply the law
as instructed by the court. Thus, on this record, the Appellate
Division properly held that Supreme Court providently exercised
its discretion in declining to give the particular charge

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requested by respondent and issuing its own charge.
Prior to the dispositional hearing, respondent moved to
preclude the testimony of Dr. Kirschner and Dr. Kunkle (a member
of the Office of Mental Health's case review team), claiming that
neither expert had stated in their respective reports whether
respondent was a dangerous sex offender requiring confinement or
a sex offender requiring strict and intensive supervision and
treatment (SIST). We hold that the court properly denied the
motion as to both experts.
With regard to Dr. Kirschner's report, which respondent
received prior to trial, the record indicates that the report
specifically delineated Dr. Kirschner's conclusion that
respondent required inpatient treatment in a secure psychiatric
center. Although it appears that Dr. Kunkle's report did not
contain Dr. Kunkle's opinion with regard to the dispositional
phase, the court took note of that fact and counsel was able to
cross-examine Dr. Kunkle concerning his recommendation. Thus,
under the circumstance of this particular case, the court did not
abuse its discretion in denying respondent's preclusion motion.
Respondent also made an unsuccessful post-hearing
motion to strike certain parts of Dr. Kunkle's testimony on the
ground that Dr. Kunkle allegedly violated HIPAA by conducting a
post-petition search of Department of Corrections records to
determine whether respondent had received any sex offender
treatment after the filing of the petition. Respondent does not

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identify what particular records Dr. Kunkle reviewed, nor does it
appear from the record that the search uncovered any such
records. Accordingly, the Appellate Division properly concluded
that Supreme Court did not err in denying respondent's motion to
strike that testimony (see 45 CFR 160.103).
We have considered respondent's legal sufficiency
challenge to Supreme Court's determination that he is a dangerous
sex offender requiring civil confinement and conclude that it is
without merit.
IV.
Anthony N.
Respondent Anthony N.'s criminal history consists of a
number of assaults and sex offenses. In 1983, when he was 27
years old, he went to an ex-girlfriend's home and demanded that
she drop assault charges that she had filed against him. He also
demanded that she "go to bed with him." When she refused to do
either, he grabbed her by the hair and struck her in the eye,
resulting in the victim's four-day hospitalization. Respondent
pleaded guilty to assault in the third degree and was sentenced
to six months in jail. One year later, in 1984, respondent went
to the apartment of an unknown female and claimed to be looking
for another person. When the woman opened the door, respondent
forced himself inside, pushed the woman into the bathroom and
fondled her breasts. Although he was charged with, among other
things, assault and sexual abuse, he pleaded guilty to one count

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of burglary in the third degree and was sentenced to 6 months in
jail with 5 years' parole.
In November 1987, respondent was arrested for
committing the offenses of sexual abuse in the first degree and
assault in the third degree against his paramour. Those charges
were eventually dropped. However, the following year, respondent
entered the same woman's apartment in violation of an order of
protection, locked the door, told her that he had to "have [her]
one more time" and raped her. He was thereafter arrested for
rape in the first degree and burglary in the second degree. He
pleaded guilty to one count of sexual misconduct and served 17
months in prison.
In 1993, respondent, then 37 years old, met a woman at
a bar through a mutual friend. He took her to a nearby music
studio, where he raped and sodomized her. Although charged with
rape in the first degree, he eventually pleaded guilty to sexual
abuse in the first degree and served four years in prison.
As to the instant offense, respondent began a
tumultuous relationship with the victim in 1999 that eventually
ended by 2003. However, later that year in June 2003, upset that
she was seeing another man, respondent broke into her house when
she was not there. When she arrived home, he ambushed her by
swinging a hammer at her, causing her to fall down the stairs.
He threatened to rape and kill her and then kill himself.
Respondent was arrested for, among other crimes, attempted rape,

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burglary and assault. He pleaded guilty to attempted burglary in
the second degree (a "designated felony" that can constitute a
"sexually motivated" offense under Mental Hygiene Law § 10.03
[f], [p] and [s]), and was sentenced to 7 years' imprisonment
with 5 years' postrelease supervision.
Mental Hygiene Law article 10 Proceeding
On June 9, 2010, before respondent was due to be
released from prison, the State commenced an article 10 civil
commitment proceeding against him, asserting that he had, as
relevant here, borderline personality disorder3 and ASPD, and
that such disorders constituted "mental abnormalities" under
section 10.03 (i). After a hearing, Supreme Court held that
there was probable cause to believe that respondent was a
detained sex offender requiring civil management.
The State called psychologist Dr. Joel Lord, who

3
According to the DSM-V, borderline personality disorder
is "[a] pervasive pattern of instability of interpersonal
relationships, self-image, and affects, and marked impulsivity,
beginning by early adulthood and present in a variety of
contexts, as indicated by five or more of the following:"
impulsivity in at least two areas that are potentially self
damaging, like substance abuse and sex; recurrent suicidal
behavior or threats, or self-mutilating behavior; "[a]ffective
instability due to a marked reactivity of mood"; "[c]hronic
feelings of emptiness"; difficulty in controlling anger and
inappropriate, intense anger; "[t]ransient, stress-related
paranoid ideation or severe dissociative symptoms"; "[f]rantic
efforts to avoid real or imagined abandonment"; "[a] pattern of
unstable and intense interpersonal relationships characterized by
alternating between extreme of idealization and devaluation"; and
"[i]dentity disturbance: markedly and persistently unstable self-
image or sense of self" (DSM-V 663 [5th ed. 2013]).

- 22 -
 - 23 - Nos. 106, 107 & 108
testified that he had attempted to interview respondent but that
his efforts were rebuffed. Dr. Lord reviewed presentence
investigation reports, grand jury minutes and parole documents
and notes in preparation for his evaluation of respondent. A
week before the trial, Dr. Lord had spoken with four of
respondent's victims -- three of whom had relationships with
respondent -- about respondent's behavior.4 Two of the women --
the victims from the 1983 and 2003 incidents -- recounted various
instances of domestic violence that respondent committed against
them. Three of the women claimed that respondent had sex with
them without their consent.
Dr. Lord testified with a reasonable degree of
professional certainty that, based on his review of the records
and conversations with the victims, respondent suffers from
borderline personality disorder and ASPD.5 The borderline
personality disorder diagnosis was premised on the fact that
respondent had attempted suicide on two occasions and that there
was evidence of emotional instability and impulsivity related to
sex and drugs. Moreover, respondent's conduct of "exploding" and
"beating up" the victims that he lived with supported that

4
Dr. Lord explained that it was standard practice in his
profession to rely on victim interviews when conducting an
evaluation of an article 10 respondent, particularly in a case
such as this, where the respondent refuses to be interviewed and
has not participated in a sex offender treatment program.
5
He also diagnosed respondent with alcohol abuse and
polysubstance disorder.

- 23 -
 - 24 - Nos. 106, 107 & 108
diagnosis. The ASPD diagnosis was premised on respondent's
history of taking advantage of others, difficulty with the law,
impulsivity and remorselessness, along with the presence of a
conduct disorder before the age of 15.
In explaining why he believed respondent has a mental
abnormality, Dr. Lord testified that, with regard to three
victims with whom respondent had relationships, respondent feels
"entitled" to sex. The same could be said with regard to the
1993 victim, as evidenced by his statement to that victim "I'm
going to have you," which was the same language he used with
another one of his victims. This entitlement on respondent's
part demonstrates that he does not appreciate the rights of other
people and that he has a poor ability to control his behavior.
In Dr. Lord's opinion, the "primary predisposing factors" to
respondent's mental abnormality are his personality disorders,
resulting in his disregard of the rights of others, inability to
appreciate others' suffering, along with his own sense of
entitlement, instability, irritability and anger. All of those
traits "come together and contribute to this abuser style that he
developed, this strategy for always having somebody that he could
force into submission and thereby elevate himself . . . ."
Ultimately, Dr. Lord testified with a reasonable degree of
professional certainty that, based on his review of the relevant
records, respondent's attempted burglary conviction constituted a
"sexually motivated offense."

- 24 -
 - 25 - Nos. 106, 107 & 108
The State also called licensed clinical psychologist
John Thomassen, who reviewed respondent's mental health records
and conducted an interview of respondent. He diagnosed
respondent with borderline personality disorder based on his
criminal history, which consisted of 46 arrests and/or
convictions (with all but 16 convictions being dismissed), all of
which save for three of them involved the same victims with whom
he had long-term relationships.6 The first two long-term
relationships each had at least a dozen situations where
respondent either violated orders of protection or violated
probation or parole, and continued pursuing the women after they
had pressed charges against him. The criminal history indicated
that respondent is a person who cannot let go in a relationship
and is desperate to restore it. When respondent feels abandoned,
or when the relationship is threatened, he either injures himself
or attempts suicide, and when faced with the loss of a
relationship, he experiences irritability, extreme anger and
depression.
Dr. Thomassen testified that respondent's borderline
personality disorder predisposes him to conduct that constitutes
the commission of a sex offense in that respondent's "desperate
need to have some relationship or contact with women to which he
is connected or wishes to have a connection" results in him

6
Dr. Thomassen did not diagnose respondent with ASPD,
polysubstance dependence or alcohol abuse.

- 25 -
 - 26 - Nos. 106, 107 & 108
engaging in forced sex against his paramours. Those with
borderline personality disorder may attempt to make a connection
with another person "by needing to have sex with them against
their will," which suggested to him that respondent has a
predisposition to act on an urge and difficulty controlling that
urge.
At the conclusion of the State's case, respondent moved
to dismiss the petition on the grounds that the State failed to
demonstrate that the attempted burglary conviction constituted a
sexually motivated offense and that the State did not establish
that respondent had a mental abnormality. The court denied both
motions.
Respondent called his own expert, licensed psychologist
Dr. Erik Schlosser, who testified that respondent does not have
either ASPD or borderline personality disorder. He acknowledged
that respondent has traits of borderline personality disorder,
but testified that the evidence only indicated that he is a
"domestic batterer."
The jury determined that the attempted burglary
conviction constituted a sexually motivated offense and that
respondent was a detained sex offender who suffered from a mental
abnormality. In April 2012, Supreme Court held a dispositional
hearing, and, after hearing from Drs. Lord and Schlosser, it
determined that respondent should be released to SIST. In
October 2012, the State petitioned to revoke respondent's SIST

- 26 -
 - 27 - Nos. 106, 107 & 108
and sought to confine him in a secure treatment facility based
upon his alleged violations of the SIST conditions. Dr. Lord
testified at the SIST revocation hearing. Respondent did not
call any witnesses. Supreme Court concluded that respondent was
a dangerous sex offender now requiring confinement.
Respondent appealed from two orders, the first order
finding that he was a dangerous sex offender requiring civil
management and the second order revoking his SIST (120 AD3d 941
[4th Dept 2014]). With regard to the appeal from the first
order, the Appellate Division held that the evidence was legally
sufficient to establish that the attempted burglary conviction
constituted a sexually motivated offense, and that there was
legally sufficient evidence establishing that the personality
disorders with which he was diagnosed predisposed him to commit
sex offenses and resulted in him having serious difficulty in
controlling his behavior (see id. at 942-943). The court also
held that respondent did not preserve his contention that his due
process rights were violated by the introduction of hearsay
evidence that formed the basis of the experts' opinions.
Finally, with regard to the appeal from the second order, the
Appellate Division held that the State established by clear and
convincing evidence that respondent was a dangerous sex offender
requiring confinement, and rejected his argument that Supreme
Court was required to specifically address the issue of a less
restrictive alternative (see id. at 943).

- 27 -
 - 28 - Nos. 106, 107 & 108
This Court granted respondent leave to appeal, and we
now affirm.
Hearsay
Respondent argues that Dr. Lord's hearsay basis
testimony should have been excluded pursuant to our holding in
Matter of State of New York v Floyd Y. (22 NY3d 95 [2013]), which
requires hearsay "evidence to meet minimum requirements of
reliability and relevance before it can be admitted at an article
10 proceeding" (id. at 109). Because respondent never raised
that particular objection, however, the court was never alerted
to the hearsay argument that he now makes on this appeal.7 Thus,
the issue is unpreserved for our review.
Legal Sufficiency
Respondent makes two legal sufficiency arguments on
appeal. First, he claims that the State failed to meet its
burden of proving that his 2003 conviction for attempted burglary
in the second degree was a "sexually motivated" offense.
An individual may not be subject to civil management
unless he or she is found to be "a detained sex offender who
suffers from a mental abnormality" (Mental Hygiene Law § 10.07
[d]). A "detained sex offender" is "a person who is in the care,
custody, control, or supervision of an agency with jurisdiction,

7
Respondent asserts that his due process rights were
violated by the introduction of hearsay statements of four of his
victims through the expert testimony of Dr. Lord, who had spoken
to the victims a week before the commencement of the article 10
trial.

- 28 -
 - 29 - Nos. 106, 107 & 108
with respect to a sex offense or designated felony, in that the
person is . . . [a] person who stands convicted of a designated
felony that was sexually motivated and committed prior to the
effective date of [article 10]" (id. at § 10.01 [g] [4]). The
term "sexually motivated" is defined as meaning "that the act or
acts constituting a designated felony were committed in whole or
in substantial part for the purpose of direct sexual
gratification of the actor" (id. at § 10.01 [s]).
Here, it is undisputed that respondent's felony of
attempted burglary in the second degree is a "designated felony"
under the statute (id. at 10.03 [f]), and such a felony also
falls under the definition of a "sex offense" (id. at § 10.03
[p]). The only dispute is whether the proof at trial established
that the offense was "sexually motivated." At trial, the court
charged the jury that it had to find that the attempted burglary
crime was sexually motivated beyond a reasonable doubt in light
of a federal court order that required application of that
standard (see Mental Hygiene Legal Service v Cuomo, 785 F Supp 2d
205, 208-209 [SD NY 2011]). That order was later vacated on
appeal (Mental Hygiene Legal Services v Schneiderman, 472 Fed
Appx 45 [2d Cir 2012]).
In light of the court's charge, we need not delineate
what burden of proof should be applied with regard to the issue
of sexual motivation because the evidence in the record is
sufficient to meet the more stringent "beyond a reasonable doubt"

- 29 -
 - 30 - Nos. 106, 107 & 108
standard. Specifically, the victim's grand jury testimony, which
was deemed reliable by the State's and respondent's experts,
adequately detailed the circumstances surrounding the 2003
attempted burglary offense, including the fact that respondent
arrived at the victim's residence with, among other things, a
"sex toy" and lubricant, and told the victim that he was going to
rape her. He dragged her to her bedroom, made her take off her
clothes and directed her to lie face down on the bed. Respondent
stopped only because the victim's son had come home, and the
victim was not able to escape until she promised him that he
could move back in with her and that they would have sex all
night. In light of these facts, the jury had a valid line of
reasoning upon which it could infer that respondent's attempted
burglary conviction was motivated "in whole or in substantial
part for the purpose of [his] direct sexual gratification."
In reliance on Donald DD., respondent next argues that,
even if his 2003 conviction for attempted burglary in the second
degree constitutes a "sexually motivated" offense, a diagnosis of
borderline personality disorder alone cannot form the basis for a
mental abnormality. Specifically, he contends that the State's
experts failed to link the borderline personality disorder
diagnosis to any disorder involving a predisposition to commit
sex offenses, in particular, a sexual disorder like paraphilia,
paraphilia NOS or pedophilia. Thus, according to respondent, the
State's proof was legally insufficient to establish by clear and

- 30 -
 - 31 - Nos. 106, 107 & 108
convincing evidence that he suffers from a mental abnormality
that predisposes him to the commission of conduct constituting a
sex offense. We disagree.
Section 10.03 (i)'s language "congenital or acquired
condition, disease or disorder" is not limited to solely sexual
disorders, as respondent claims. Rather, one may possess a
"condition, disease or disorder" that does not constitute a
"sexual disorder" but nonetheless "affects the emotional,
cognitive, or volitional capacity of a person that predisposes
him or her to the commission of conduct constituting a sex
offense." To be sure, we stated in Donald DD. that ASPD by
itself "proves no sexual abnormality," but that was in the
context of our observation that an ASPD diagnosis means nothing
more than a person has a tendency to commit crimes (Donald DD.,
24 NY3d at 190).8 As such, Donald DD. did not engraft upon the
"condition, disease or disorder" prong a requirement that the
"condition, disease or disorder" must constitute a "sexual
disorder."9

8
The dissent correctly notes that "there is no basis to
overrule Donald DD." (dissenting op, at 5), and we do not do so
here. Any contention that we are is misguided and is derived
from a misinterpretation of our rationale in Donald DD.
9
Indeed, we noted in Donald DD. that our prior decision in
Shannon S. was distinguishable because the diagnosis at issue
there was "potentially relevant to a finding of predisposition to
conduct constituting a sex offense" (Donald DD., 24 NY3d at 191)
-- that language could hardly be read as mandating a finding that
respondent has a sexual disorder.

- 31 -
 - 32 - Nos. 106, 107 & 108
We also reject respondent's contention that our
rationale in Donald DD. that ASPD, along with evidence of sexual
crimes, cannot by itself be used to support a finding of mental
abnormality, should likewise apply to a diagnosis of borderline
personality disorder. Our problem with the ASPD diagnosis in
Donald DD. was that such a diagnosis amounted to "'little more
than a deep-seated tendency to commit crimes'" (Donald DD., 24
NY3d at 190 [citation omitted]), and that such a general tendency
does not amount to a predisposition "to the commission of conduct
constituting a sex offense" (id.). Our concern in Donald DD. was
that the utilization of ASPD as a predicate for a finding of
mental abnormality was insufficient to distinguish a sex offender
who has a mental abnormality that subjects him to civil
commitment from a typical recidivist.
There is no such concern with respect to a diagnosis of
borderline personality disorder, which brings us to the second
prong of the mental abnormality test, namely, whether the State
presented legally sufficient evidence to link respondent's
diagnosis of borderline personality disorder to a predisposition
to commit sex offenses. We hold that it did.
The State's proof established that respondent's
borderline personality disorder predisposes him to conduct
constituting the commission of sex offenses because he has a need
"to have sexual contact, not just a relationship with [a] person,
not just having them back." One of the traits of borderline

- 32 -
 - 33 - Nos. 106, 107 & 108
personality disorder is a fear of abandonment and the need to
restore a relationship that has been threatened. The State
demonstrated that respondent has a "need, [and has] to have a
connection with these women, expressing it by needing to have sex
with them against their will, despite all of these prohibitions
against it." Further, there was evidence that the need itself
was more than just a need to be in a relationship, however;
respondent "has to have a sexual relationship which makes him
whole and calms him in some way" such that "he can't take no for
an answer and he has difficulty with any prohibitions against
this." Thus, there was proof of a "strong sexual component" to
respondent's diagnosis, and respondent has conceded that he has
serious difficulty controlling his sexual urges. Rather than
establishing a general tendency to commit crimes, the State's
proof linked respondent's borderline personalty disorder
diagnosis to his predisposition to commit sex offenses. As such,
under the circumstances of this particular case, the State
established by clear and convincing evidence the predispostion
prong of the mental abnormality test.
Finally, we have considered respondent's argument that
the State failed to prove by clear and convincing evidence at the
SIST revocation hearing that he was a "dangerous sex offender
requiring confinement" and conclude that it is without merit.

- 33 -
 - 34 - Nos. 106, 107 & 108
V.
Richard TT.
Respondent Richard TT. has a long history of committing
sex offenses. In 1999, when he was 12 years old, respondent
anally sodomized a 5-year-old girl and attempted to anally
sodomize an 8-year-old boy. He pleaded guilty to sexual abuse in
the first degree and endangering the welfare of a child, was
adjudicated a juvenile delinquent and was placed on probation for
one year. His probation was revoked because of numerous non-
sexual incidents that occurred at school. As a result,
respondent was placed in a juvenile detention facility. While
there, he confessed to sexually victimizing six girls, including
his sister and two of her friends, his stepsister and two of his
cousins. He stated that his sister wanted to have sex with him.
In January 2007, a few months after being released from
serving a 9-month jail sentence for criminal contempt in the
second degree for violating an order of protection, respondent --
then 19 years old -- went to a "teen night" at the local YMCA and
signed in under an alias. He tricked a 15-year-old girl into
going outside with him and, despite her protests, raped her
behind the YMCA building. He threatened to kill her if she
reported the rape. In June 2007, respondent had intercourse with
a 14-year-old girl, knowing that the girl was underage. As
relevant here, respondent pleaded guilty to rape in the third
degree and sexual misconduct in satisfaction of the charges

- 34 -
 - 35 - Nos. 106, 107 & 108
lodged against him for both incidents. He was sentenced to an
aggregate term of 1-3 years' imprisonment.
Mental Hygiene Law article 10 Proceeding
In May 2010, two weeks before respondent's release from
custody, the State commenced an article 10 civil management
proceeding against respondent alleging that he suffered from a
mental abnormality. Respondent waived his right to a hearing on
the issue of probable cause and his right to have a jury consider
the issue of mental abnormality. He was ordered confined to an
Office of Mental Health (OMH) facility while awaiting the article
10 trial.
At the trial, the State called licensed psychologist
Trica Peterson, who had been employed by OMH from 2008 through
2011 and had conducted an evaluation of respondent during her
time there. During that evaluation, respondent admitted that he
had been hospitalized at the age of 13 for threatening suicide,
and had begun "cutting" himself at age 11.
Based on her review of the records, Dr. Peterson stated
that respondent had amassed 10 victims by the age of 19, which,
in her opinion, confirmed that he had "issues" with sexual
behavior. Specifically, during his time at the juvenile
detention facility, he admitted to sexually abusing six
additional children (mostly family members), engaged in cutting,
was described as being "impulsive" and "aggressive" and was known
for making "sexually inappropriate commentary." He was

- 35 -
 - 36 - Nos. 106, 107 & 108
eventually discharged from the detention center, and remained at
large until he was sentenced to state prison for the rape
offenses. Although respondent participated in sex offender
treatment programs while incarcerated, he did not complete them
due to his failing a urine test and being found with pornography.
Dr. Peterson testified with a reasonable degree of
professional certainty that respondent suffered from ASPD,
borderline personality disorder and psychopathy.10 She
acknowledged that ASPD and borderline personality disorder
diagnoses do not, by themselves, indicate that a person is
predisposed to committing sexual offenses.
With regard to the ASPD diagnosis, Dr. Peterson stated
that respondent met all four criteria, i.e., respondent was at
least 18 years old, he had symptoms of conduct disorder prior to
the age of 15, he had three or more traits demonstrating "[a]
pervasive pattern of disregard for and violations of the rights
of others," and his antisocial behavior did not occur during a
course of schizophrenia or bipolar disorder.
Dr. Peterson also testified that respondent met five
out of the nine criteria necessary to support a diagnosis of
borderline personality disorder. Specifically, he had persistent
issues with impulsivity dating back to when he was a child, had
engaged in repeated "suicidal gestures," displayed "reactive
moods" and difficulty in controlling his anger, and was sensitive

10
Her other diagnoses included cannabis and alcohol abuse.

- 36 -
 - 37 - Nos. 106, 107 & 108
to being abandoned by a significant other to the point of
engaging in "extreme behavior" to prevent the dissolution of the
relationship.
Dr. Peterson acknowledged that the psychopathy
diagnosis was not one that could be found in the DSM.
Psychopathy is an "extreme form of [ASPD]" and individuals who
suffer from it engage in antisocial behavior, leading to multiple
arrests and repeated revocations of community release. Moreover,
individuals who suffer from psychopathy are aggressive,
emotionally unstable, impulsive and lack empathy and remorse.
Specifically, those with psychopathy have poor behavioral
control, and issues with impulsivity, and they are prone to
taking risks. In September 2011, respondent was scored utilizing
the "Psychopathy Checklist, Revised" test, which involved a
consideration of 20 factors that are used to determine whether
psychopathy is "strongly present" in a person. A score of 30 or
more indicated that psychopathy is "strongly present" in the
individual; respondent's score from the test administered by Dr.
Peterson was over 30.
Dr. Peterson testified, as relevant here, that the
ASPD, borderline personality disorder and psychopathy conditions,
in combination, established that respondent has a "congenital or
acquired disease, condition or disorder." She opined that those
conditions or disorders affect respondent's cognitive or
volitional capacity and "predispose" him to commit sex offenses.

- 37 -
 - 38 - Nos. 106, 107 & 108
Specifically, these personality disorders affect a person's
"impulse control" and "emotions" and their "interpersonal
relationships." Respondent's behavior over time demonstrated an
"emotional reactive impulsivity" and "aggressiveness" that had
been present since he was a child. His attitude and history of
sexual preoccupation demonstrate that he feels "entitled" to sex
regardless of its impact on his victims.
Dr. Peterson also testified that respondent has
displayed a "lack of responsibility for his own actions" -- as
evidenced by his placing blame on the victims themselves or
victims' parents. He told Dr. Peterson during their interview,
for example, that his 5-year-old and 8-year-old victims had
prompted or encouraged the sexual contact.
Finally, Dr. Peterson explained that respondent also
has "serious difficulty" in controlling his sexual behavior,
pointing out that he had victimized ten individuals by the age of
19. In his sex offender treatment program writings, respondent
specifically admitted that he targeted teenage girls because
"they were vulnerable and easily gullible" and that he enjoyed
masturbating to young girls. He conceded that he attended "teen
night" at the YMCA with the intention of meeting girls to have
sex with them. Notably, while awaiting his article 10 trial,
respondent stated that he was concerned about the frequency of
his sexual thoughts, and made the observation that such thoughts
were "driving him nuts." Dr. Peterson stated that respondent

- 38 -
 - 39 - Nos. 106, 107 & 108
lacks the "volitional capacity" to stop what he is doing, as
evidenced by his difficulty in maintaining his sexual behavior
within the confines of the law despite repeated (but failed)
efforts at undergoing sex offender treatment. She concluded that
he has an "ongoing attitude" that indicates that he is likely to
reoffend, based on his placing blame on the victims, minimizing
his own role in their sexual attacks and making statements in
group therapy that it is not coercive to pressure women into
having sex with him even when they have rebuffed his efforts.
At the conclusion of the State's case, the court
reserved respondent's right to make a motion with regard to legal
sufficiency until the following day. Respondent thereafter
called his own expert, licensed psychologist Erik Schlosser, who
also testified that respondent suffered from disorders -- ASPD
and borderline personality disorder -- and that those disorders
could, in fact, affect his emotional, cognitive or volitional
capacity. However, in Dr. Schlosser's view, those disorders did
not predispose him to the commission of conduct constituting a
sex offense, nor did they result in respondent having serious
difficulty in controlling such conduct.
Supreme Court found by clear and convincing evidence
that respondent suffered from a mental abnormality -- ASPD and
borderline personality disorder, with the presence of
psychopathic traits. After conducting a dispositional hearing,
Supreme Court held that respondent was a "dangerous sex offender

- 39 -
 - 40 - Nos. 106, 107 & 108
requiring civil confinement" and ordered his commitment to a
secure treatment facility.
During the pendency of respondent's appeals of the
Supreme Court's orders finding that respondent suffered from a
mental abnormality and that he was a dangerous sex offender
requiring confinement, this Court issued its opinion in Donald
DD. Respondent thereafter moved pursuant to CPLR 4404 (b) and
CPLR 5015 (a) to vacate and dismiss the orders on the ground of
legal sufficiency. The State opposed the motion. However,
Supreme Court, citing to its discretionary authority to vacate
its own judgment (as provided by CPLR 5015), held that it was
required to "heed the pronouncements in Donald DD." and grant
respondent's motion, notwithstanding the fact that it believed
respondent suffered from a mental abnormality as defined by
Mental Hygiene Law § 10.03 (i). The State appealed that order.11
A divided Appellate Division held that Supreme Court
abused its discretion in vacating its order of civil commitment,
holding that the Donald DD. decision "did not warrant vacatur of
orders that Supreme Court otherwise viewed to be supported by the
evidence . . ." (132 AD3d 72, 75 [3d Dept 2015]). The majority
noted that respondent "was diagnosed with several mental
disorders" and that the record was "replete with proof that the

11
Consequently, the Appellate Division dismissed
respondent's appeals from the Supreme Court's commitment orders
as moot, holding that "[n]o appeal lies from a vacated judgment
or order" (127 AD3d 1528, 1528 [3d Dept 2015]).

- 40 -
 - 41 - Nos. 106, 107 & 108
disorders . . . cause[d] respondent to exhibit impulsive and
inappropriate sexual behavior" (id. at 76-77). Moreover, Dr.
Peterson identified a number of instances where respondent
demonstrated a lack of remorse and inability to understand the
inappropriateness of his conduct" (id. at 77-78). Thus,
according to the majority, because the evidence otherwise
supported the finding that respondent was a dangerous sex
offender requiring civil confinement such that there was no need
for Supreme Court to grant the motion to vacate in the interest
of justice, it abused its discretion in doing so (see id. at 78).
The two dissenting Justices stated that they were
constrained by our holding in Donald DD. to conclude that
respondent's civil confinement was not justified.
The Appellate Division granted respondent's motion for
permission to appeal to this Court, and, pursuant to CPLR 5713,
certified to us the question whether it erred as a matter of law
in reversing on the law the order of Supreme Court that granted
respondent's motion to vacate its two prior orders.
Legal Sufficiency
The procedural posture of this proceeding is different
from those in Dennis K. and Anthony N. Here, notwithstanding its
stated belief that the record supported its prior mental
abnormality determination, Supreme Court vacated its prior orders
on the ground that our holding in Donald DD. mandated such
relief. To that end, a question of law is presented whether

- 41 -
 - 42 - Nos. 106, 107 & 108
Supreme Court properly interpreted Donald DD., and the Appellate
Division, having concluded that the evidence was legally
sufficient to support the finding of mental abnormality,
determined that Supreme Court abused its discretion in granting
respondent's motion to vacate. We therefore begin our analysis
of the legal sufficiency of the evidence presented by the State
at the article 10 proceeding.
Respondent makes an argument that is identical to one
of the arguments made by Anthony N., namely, that because
borderline personality disorder is not a "sexual disorder," it
may not serve as a predicate "condition, disease or disorder."
For the reasons set forth in our legal sufficiency analysis in
Anthony N., however, respondent's reliance on Donald DD. in
support of this contention is misplaced.
Pointing to Dr. Peterson's testimony that there is a
"considerable overlap in symptoms between borderline personality
disorder and ASPD," respondent argues that, in light of our
holding in Donald DD., the combination of the two disorders is
insufficient for purposes of finding a mental abnormality. We
decline respondent's invitation to consider the ASPD and
borderline personality disorder diagnoses in isolation: Donald
DD. expressly held that an ASPD diagnosis cannot support a
finding of mental abnormality if it is not accompanied by any
other diagnosis, but, in this instance, the State presented
evidence that respondent was diagnosed with more than one

- 42 -
 - 43 - Nos. 106, 107 & 108
"condition, disease or disorder."
Here, Dr. Peterson diagnosed respondent with three
disorders -- ASPD, borderline personality disorder and
psychopathy -- all of which she claims create a "personality
structure" that disregards the wants and needs of other people.
Such disorders affect respondent's impulse control, emotions,
cognitions and interpersonal relationships, and they manifest
themselves in his commission of sex offenses. The combination of
these disorders affect him in that he has a history of sexual
preoccupation and objectification and placing blame on teenage
girls, and he believes that he is entitled to sex regardless of
its impact on the victims. This combination also results in
emotional reactivity, impulsiveness and aggressiveness.
With regard to the offenses that he committed in 1999,
respondent told Dr. Peterson that it appeared to him that the 5-
year-old victim "knew about this stuff . . . she wanted me to
touch her in the front," and he blamed the 8-year-old victim for
bringing up the topic of anal sex. Respondent also has poor
volitional controls. In his sex offender treatment program
homework, he conceded that he surrounded himself with "younger"
and "weaker" people so he could easily influence them,
particularly young girls because of their gullibility. He
attended "teen night" because it was easy to meet girls, and he
claimed that he "manipulated" and pressured that victim into
having sex and "did not stop until she said yes." He also

- 43 -
 - 44 - Nos. 106, 107 & 108
conceded in his writings that he enjoyed masturbating to young
girls.
Finally, the State provided "[a] detailed psychological
portrait" of respondent that met the State's burden of
demonstrating by clear and convincing evidence that he had
"serious difficulty" in controlling his sex-offending conduct.
In March 2012, respondent stated that his frequent sexual
thoughts were making him "nuts." Dr. Peterson found it
significant that by the age of 19, respondent had 10 victims and
that he had yet to successfully complete a sex offender treatment
program (having been kicked out of three of them, one time
because he was in possession of pornography). Moreover, she
stated that respondent's sex offender treatment program homework
made repeated references to sexual contact, stating that he
targets teenage girls because they are gullible and vulnerable
and that he "love[s] masturbating to young girls." Although
respondent has access to adult partners, respondent continues to
remain interested in underage girls. Dr. Peterson also explained
that respondent's sexual preoccupation dates back to his public
school records and continued through his residential treatment
when he was a juvenile all the way to his stays at secure
treatment facilities.
Respondent also exhibits cognitive distortions that
demonstrate he has serious difficulty controlling his sex-
offending behavior, particularly concerning his understanding

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 - 45 - Nos. 106, 107 & 108
about what constitutes consensual sex. In February 2012, while
participating in a treatment group at a secure facility, he
stated that if he desired sex with a woman, he would "talk her
into" having sex with him. When it was pointed out to him that
it was not appropriate to pressure women into having sex and that
if a woman eventually agrees to engage in sex just to get him to
stop asking her, it was still considered nonconsensual,
respondent downplayed that comment, stating that it was
"ridiculous" that he could not persuade "an age appropriate mate
into [having] sex."
In short, Dr. Peterson did not simply rely on one
diagnosis in establishing sexual abnormality. She considered a
number of particular disorders, and testified how those
disorders, in combination, presdisposed respondent to the
commission of conduct constituting sex offenses, resulting in his
having "serious difficulty in controlling such conduct." That
detailed testimony was sufficient to establish by clear and
convincing evidence that respondent had a mental abnormality.
Supreme Court, in vacating its orders, nonetheless
expressed its belief that the State had met its burden and simply
vacated the orders based in its misinterpretation of our holding
in Donald DD. The Appellate Division, recognizing that
misinterpretation, properly held that Supreme Court abused its
discretion in vacating the orders. Therefore, we affirm the
order of the Appellate Division and answer the certified question

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 - 46 - Nos. 106, 107 & 108
in the negative.
In Matter of State of New York v Dennis K., the order
of the Appellate Division should be affirmed, without costs.
In Matter of State of New York v Anthony N., the orders
of the Appellate Division should be affirmed, without costs.
In Matter of State of New York v Richard TT., the order
of the Appellate Division should be affirmed, without costs, and
the certified question answered in the negative.

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Matter of the State of New York v Dennis K.
Matter of the State of New York v Anthony N.
Matter of the State of New York v Richard TT.
Nos. 106, 107 & 108

RIVERA, J.(concurring in Matter of the State of New York
v Dennis K. and dissenting in Matter of the State of New York
v Anthony N. and Matter of the State of New York v Richard TT.):

I concur in Matter of the State of New York v Dennis K.
based on our existing case law and the record developed at
respondent's article 10 trial. However, I dissent in Matter of
the State of New York v Anthony N. and Matter of State of New
York v Richard TT. because in my opinion a diagnosis of
borderline personality disorder (BPD) may not establish, as a
legal matter, the basis for civil management, and the records in
these cases are otherwise devoid of facts sufficient to support
civil confinement.

I.
A "mental abnormality" is defined 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]). Sex offenders with "mental

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 - 2 - Nos. 106, 107 & 108
abnormalities that predispose them to engage in repeated sex
offenses . . . may require long-term specialized treatment
modalities to address their risk to reoffend" (Mental Hygiene Law
§ 10.01 [b]), including strict and intensive outpatient
supervision (Mental Hygiene Law § 10.01 [c]) and, "in extreme
cases, confinement [for] the most dangerous offenders . . . in
order to provide them such treatment and to protect the public
from their recidivistic conduct" (id. § 10.01 [b]).
As a matter of substantive due process, the statute
must set up a mechanism for "distinguish[ing] the dangerous
sexual offender whose serious mental illness, abnormality, or
disorder subjects [the offender] to civil commitment from the
dangerous but typical recidivist convicted in an ordinary
criminal case" (Kansas v Crane 534 US 407, 413 [2002], citing
Kansas v Hendricks, 521 US 346, 357-358 [1997]). "A state may
only use civil process to confine a sex offender for treatment of
'mental abnormality . . . that makes it difficult, if not
impossible, for the person to control his [or her] dangerous
behavior'" (State v Floyd Y., 22 NY3d 95, 103 [2013], quoting
Hendricks, 521 US at 358 [internal quotation marks omitted]).
The loss of liberty and risk of long-term, if not
permanent, confinement at stake in article 10 proceedings
counsels that the statute be narrowly interpreted to ensure that
those subject to civil management are the aberrational recidivist
sex offenders. In furtherance of the twin goals of article 10 --

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 - 3 - Nos. 106, 107 & 108
public safety and treatment -- civil management is meant to
protect the public from a particular class of dangerous sex
offenders and to provide for those offenders' therapeutic
treatment. The statutory distinction between a sex offender with
a mental abnormality that prevents sexual impulse control, and a
recidivist, is the animating feature of the statute. Without it,
article 10 could not survive constitutional scrutiny.

II.
Dennis K.
The Court has previously sanctioned a diagnosis of
paraphilia NOS as a predicate mental disorder or defect to a
finding of a mental abnormality within the meaning of Mental
Hygiene Law § 10.03 (i) (Matter of State of New York v Shannon
S., 20 NY3d 99, 107 [2012]). Similarly, in Dennis K.,
respondent's diagnosis of paraphilia NOS and antisocial
personality disorder (ASPD) could serve as a basis for the jury's
mental abnormality finding. Respondent's challenge to the
scientific basis for this diagnosis is appropriately left to a
hearing in accordance with Frye v United States (293 F 1013 [DC
Cir 1923]), which he did not request.
As discussed by the majority, on the facts presented,
there was sufficient evidence that respondent suffers from a
mental abnormality (Mental Hygiene Law § 10.03 [i]). Notably,
respondent identifies himself as a "sadistic power rapist," who

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 - 4 - Nos. 106, 107 & 108
is aroused by exercising power over his non-consenting partners.
Respondent's statements, along with the other evidence of his
inability to control his urges leading to his paraphilia NOS and
ASPD diagnoses, distinguishes him from other rapists and places
him within the class of sex offenders subject to civil management
under article 10. For the reasons stated in the majority
opinion, I agree that respondent's other claims are without
merit.

Anthony N. and Richard TT.
In Anthony N. and Richard TT. the majority has
effectively overruled, in part, Matter of State of New York v
Donald DD. (24 NY3d 174 [2014]). The majority states that Donald
DD. did not mandate a finding of a sexual disorder (majority op.
at 31 n 8, 42). This interpretation is not supported by our
holding in Donald DD. that a sole diagnosis of ASPD, together
with evidence of sexual crimes, could never serve as the basis
for a finding of mental abnormality under article 10. The Court
explained, "[t]he problem is that ASPD establishes only a general
tendency toward criminality, and has no necessary relationship to
a difficulty in controlling one's sexual behavior" (Donald DD.,
24 NY3d at 191). If the majority's current view accurately
reflected the Court's analysis in Donald DD., the dissent would
not have criticized the Court for essentially redefining "mental
abnormality" under article 10. The dissent maintained that the

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 - 5 - Nos. 106, 107 & 108
Court "equate[d] a 'congenital or acquired condition, disease or
disorder' with a 'mental abnormality'" (24 NY3d at 194
[Graffeo, J., dissenting]). As a result, the Court "implicitly
inject[ed] a requirement that the underlying disorder be
'sexually-related' into Mental Hygiene Law § 10.03(i)" (id. at
196). The Court did not reject this interpretation of its
analysis. In fact, there is no response to the dissent on this
point at all. Instead, the Court doubled-down, quoting
approvingly respondent's counsel that "ASPD is 'not a sexual
disorder'" (id. at 190). Even the state's expert in Donald DD.,
and the expert in the companion case of Matter of the State of
New York v Kenneth T., acknowledged that ASPD did not predispose
a person to commit conduct constituting a sex offense (id.).
Since there is no basis to overrule Donald DD., we are bound by
its reasoning and holding.
Turning to the appeals in Anthony N. and Richard TT.,
the Court must determine whether a BPD diagnosis falls on the
Shannon S. or the Donald DD. side of the line we have drawn
between a diagnosis that serves as a predicate for civil
management, and one that does no more than identify general
criminality. In my opinion, a BPD diagnosis raises the same
concerns associated with ASPD that we found dispositive in Donald
DD. Like ASPD, BPD is prevalent among the prison population,
with some studies suggesting that 25% to 50% of prisoners suffer
from BPD (Randy Sansone & Lori Sansone, Borderline Personality

- 5 -
 - 6 - Nos. 106, 107 & 108
and Criminality, 10 (6) Psychiatry, 17 [2009]; see Donald DD., 24
NY3d at 189-190). Admittedly both are a class of personality
disorder, although BPD is somewhat different from ASPD, because
impulsivity is a central characteristic of BPD, and may include
manifestations of sexual impulsivity. However, a BPD diagnosis
does not require sexual impulsivity expressed by behaviors
constituting sexual offenses. In fact, the DSM-5 does not
associate BPD with sex-offending conduct.
In Anthony N., one of the State's experts, Dr. Lord,
testified that a BPD diagnosis does not mean that a person has a
mental abnormality, and the other State expert, Dr. Thomassen,
explained that BPD is not a common diagnosis for sex offenders,
so he looked for a linkage between BPD and the risk of
reoffending. The experts basically pathologized battering, upon
which they based their diagnoses.1
Dr. Lord concluded that Anthony N.'s mental abnormality
was evidenced by his belief that he was entitled to sex on demand
and his history of relationships and sexual offenses. Dr. Lord
testified that he diagnosed Anthony N. with BPD because of his
displays of emotional instability, impulsivity and irritability,

1
Of course a batterer could suffer from a mental
abnormality as defined by article 10. However, the fact that a
sex offender batters the offender's partner, by itself, does not
convert a criminal act into a predicate "condition, disease or
disorder" for a mental abnormality, nor satisfy the statutory
requirement that the offender has "serious difficulty in
controlling" sex offending conduct (Mental Hygiene Law § 10.03
[i]).

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 - 7 - Nos. 106, 107 & 108
often to the point of violence. Dr. Lord added that Anthony N.
has serious difficulty in controlling his behavior, as evidenced
by his recurring sexual offenses "despite many interventions with
the legal community."
According to Thomassen, Anthony N. has a
"desperate need to have some relationship or
contact with women to which he is connected
or wishes to have connection. And in his
particular case, that contact appears to need
to be sexual, at least some cases. There's
consistent evidence in the record of him
offending against his -- well, having forced
sex against his paramours."
He further concluded that Anthony N. "having forced sex against
his paramours" was a sound basis to find a predisposition to act
on a sexual urge.
In Richard TT., the State's expert, Dr. Peterson,
testified that it was the combination of BPD with respondent's
two other disorders, ASPD and psychopathy, that predisposed him
to commit sex offenses and impacted his impulse control. The
expert relied on what she considered to be the result of the
combined impact of the three diagnoses, which individually were
insufficient to establish respondent's predisposition to commit
sex offenses. However, there is no support for her "combination
diagnosis" theory.
Thus, in order to connect BPD to uncontrollable sexual
behavior that constitutes a sex offense, the experts in these
cases relied on respondents' past crimes. However, under article
10, a finding of mental abnormality cannot be based solely on

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 - 8 - Nos. 106, 107 & 108
evidence of the commission of past sex offenses (Mental Hygiene
Law § 10.07 [d]). Article 10 "essentially envisions a battle of
the experts to determine whether the respondent has a mental
abnormality" (Floyd Y., 22 NY3d at 105-06 [citations omitted]),
and because the basis of experts' conclusions "inevitably involve
devastating accusations," convictions for sex crimes, as well as
the concomitant victim-witness statements, "[j]uries may be
predisposed to doubt the convicted sex offender and believe the
State's expert" (id.). It is not enough that an expert looks at
a respondent's crimes and then works backwards to explain the
existence of a mental abnormality. This process easily lends
itself to misdiagnoses, and increases the risk of over commitment
and a greater focus on public safety by incarceration than
offender treatment and care through civil management (see Crane,
534 US at 412; Hendricks, 521 US at 372–373 [Kennedy, J.,
concurring]; Shannon S., 20 NY3d at 108-109).
In my opinion, respondents' criminal records and the
expert testimony presented in their cases were insufficient to
establish they suffer from a mental abnormality as defined by
article 10, and within the constitutional limits delineated by
the United States Supreme Court. To be clear, respondents have
committed horrendous acts, but the existence of a mental
condition is necessary to distinguish them "from the dangerous
but typical recidivist convicted in an ordinary criminal case",
(Crane 534 US at 413), and to justify what may end up as

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 - 9 - Nos. 106, 107 & 108
permanent civil confinement.
* * * * * * * * * * * * * * * * *
For Case No. 106: Order affirmed, without costs. Opinion by
Judge Pigott. Chief Judge DiFiore and Judges Rivera,
Abdus-Salaam, Stein and Garcia concur, Judge Rivera in a separate
concurring opinion. Judge Fahey took no part.
For Case No. 107: Orders affirmed, without costs. Opinion by
Judge Pigott. Chief Judge DiFiore and Judges Abdus-Salaam, Stein
and Garcia concur. Judge Rivera dissents in an opinion. Judge
Fahey took no part.
For Case No. 108: Order affirmed, without costs, and certified
question answered in the negative. Opinion by Judge Pigott.
Chief Judge DiFiore and Judges Abdus-Salaam, Stein and Garcia
concur. Judge Rivera dissents in an opinion. Judge Fahey took
no part.

Decided July 5, 2016

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