The Respondent is the subject of a petition for sex offender civil management pursuant to Article 10 of the Mental Hygiene Law (Article 10). On January 30, 2015, following a jury trial presided over by this Court, he was found to be a Detained Sex Offender who suffers from a Mental Abnormality under that statute. During the trial, he moved to dismiss the petition against him after the close of the State's case, after the close of the Respondent's case and after the verdict. The Court reserved decision on all of those motions. In arguing for such a dismissal, he primarily relied upon the recent decision of the New York Court of Appeals in State v. Donald DD. & Kenneth T., 24 NY3d 174 (2014), more particularly the portion of the opinion regarding respondent Kenneth T.

In the Court's view, prior to Kenneth T., there would have been no question that the evidence in this case was legally sufficient. Kenneth T., however, significantly increased the quantum of evidence the State must present to demonstrate that a respondent has serious difficulty controlling his sexually offending behavior. The three concurring judges in the case went so far as to assert the majority's ruling had created an "impossible standard" for legal sufficiency in Article 10 trials. Kenneth T., 24 NY3d at 200 (Graffeo, J., concurring). Whether that proves to be true obviously remains to be seen.

Kenneth T., moreover, as discussed infra, is only one of a series of recent Court of Appeals decisions which have revealed an extraordinary gulf between the previous rulings of trial and mid-level appellate courts and the Court of Appeals concerning Article 10. The Court of Appeals over the past 18 months has consistently interpreted the statute as providing more due-process rights to respondents and less leeway for the State in proving these cases and made it [*2]much more difficult to confine rather than release respondents to supervision if a Mental Abnormality is proven. Kenneth T., in the Court's view, must be interpreted in light of those decisions. It is clear to this Court that the new bar set by Kenneth T. was not met here. The Court therefore orders that the instant petition be dismissed.^[FN1]

This case has been pending for more than nine years. Mr. Y. has been confined during that entire time. "In the fall of 2005, after failing to achieve passage of legislation to provide for the civil commitment of convicted sex offenders for a number of years, Governor Pataki charged state officials to push the envelope' and use the provisions of the existing Mental Hygiene Law to civilly confine convicted sex offenders whose prison terms were ending." State v. K.B., et. al., 20 Misc 3d 1110 (A), 2008 NY SlipOp 5132 (U) at 1 (New York County Supreme Court 2008) (decision by this Court) (citations and quotations omitted). The Respondent began his post-prison confinement through this procedure which the Court of Appeals subsequently found was unlawful. State of NY ex. rel. Harkavy v. Consilvio, 7 NY3d 607 (2006). (Harkavy I). In 2007, the Legislature enacted Article 10 and a petition was subsequently filed against the Respondent under that new statute. See State of NY ex. rel. Harkavy v. Consilvio, 8 NY3d 645 (2007) (Harkavy II). The case was assigned to this Court which denied a motion by the State to change the venue of this case and two unrelated cases to the locations where the crimes which formed the basis for Article 10 petitions had been committed (in Mr. Y.'s case, Oswego County). State v. K.B., et. al., supra.

An Article 10 jury trial was subsequently conducted by Justice Nunez of this Court where Mr. Y. was found to be a Detained Sex Offender who suffered from a Mental Abnormality. Justice Nunez subsequently determined in a dispositional hearing that Mr. Y. should continue to be confined rather than released to Strict and Intensive Supervision and Treatment in the community (SIST). That judgment was affirmed by the First Department. State v. Floyd Y., 102 AD3d 80 (1st Dept 2012). The Court of Appeals then reversed the judgment, in a landmark ruling which established new rules governing the permissible recitation of "basis evidence" by expert witnesses. State v. Floyd Y., 22 NY3d 95 (2013). The case was then remitted to this Court, which denied a second motion by the State to transfer the venue of this case to Oswego County. State v. Floyd Y., 43 Misc 3d 1202 (A) (New York County Supreme, March 26, 2014). The instant trial was then conducted.

Mr. Y's Diagnoses & Non-Sexual Offense History

        Dr. Kirshner is a New York State licensed psychologist who testified for the State. He [*3]said that he reviewed voluminous records regarding the Respondent but did not talk to Mr. Y. because the Respondent refused to speak with him. Dr. Kirshner diagnosed Mr. Y. with Pedophlilia, non exclusive type. He said this meant Mr. Y. had a sexual interest in adults and both male and female children. He also said Mr. Y. met the criteria for Alcohol Abuse Disorder, Cannabis Abuse Disorder and Cocaine Use Disorder, all in a controlled environment. He testified there was no evidence the Respondent had abused these substances during his confinement. He said that Mr. Y. also suffered from AntiSocial Personality Disorder (ASPD). Dr. Kirshner opined that Mr. Y. had a Mental Abnormality under Article 10.

Dr. Kirshner defined "Pedophilia" as "intense urges, fantasies or behaviors involving prepubescent children" where a person had either acted on those urges or suffered significant life distress and the condition had persisted for at least six months.^[FN3] Mr. Y.'s substance abuse disorders were supported by evidence that he had trouble using marijuana, alcohol and cocaine over the years, trouble maintaining sobriety and had attributed some of his sexually offending behavior to substance abuse. ASPD requires evidence of a conduct disorder before the age of 15 and Mr. Y. admitted he had been a problem child. The disorder is manifested by being deceitful, irritable, aggressive, irresponsible and demonstrating a lack of remorse for harmful actions. Dr. Kirshner testified that about 80% of the prison population could be diagnosed with ASPD.

Some people "age out" of the condition and some do not. Aging out of the disorder can occur beginning at age 30. Sex offending generally diminishes with advancing age at an even higher rate than general criminality but the degree to which offenders or sexual offenders age out depends on the person. The Respondent is currently 58 years old and was 40 in 1998 at the time of the "Instant Offense", the crimes which were the basis for the Article 10 petition, described infra.

The combination of ASPD and Pedophilia is a "very toxic mixture". A person who had only Pedophilia without ASPD "would be less inclined to be deceitful, may have a conscience, that would be an internal braking mechanism that would inhibit him from engaging in future acts of pedophilia". A person with both conditions, on the other hand, "would not have a conscience or internal braking mechanism that would allow him or inhibit him from future pedophilic acts"^[FN4] The addition of substance abuse disorders impairs "braking mechanisms" which would otherwise exist and "the individual under the influence of these substances losses that ability to exercise control over his impulses. So this is the combination of these disorders [SIC] create impulse problems and really predisposes Mr. Y. in this case for committing sexual offenses".^[FN5]

In addition to looking at Mr. Y.'s past conduct and statements, Dr. Kirshner also [*4]considered whether he has done things to remedy his past behavior through treatment or otherwise or still has the same problems he had when he offended. (The Respondent has been confined in prison or mental health facilities for over 14 years and there is no evidence he has sexually offended during that time.) Mr. Y. previously worked as a truck driver, dropped out of school at a young age, obtained a GED degree, married and had a child, was divorced and married again. He was convicted of four counts of Sexual Abuse in the First Degree (the Instant Offense) for sexually abusing two step-children from that second marriage then subsequently developed a romantic relationship with his father's wife (the Respondent's step-mother) after Mr. Y.'s second wife left him. The Respondent then had a child with his former step-mother. He served in the military for eight or nine months and was dishonorably discharged. Mr. Y. dropped out of anger management programs prior to completing them while in prison.

The Respondent's Criminal History

Most recently the Respondent had reported to Dr. Singer that he was "dry humping" the victim, that he should have stopped but that he was in a drunken stupor. He admitted he had tried to coerce the victim to have sex with him but said this was stupid. Dr. Kirshner acknowledged that Mr. Y.'s current admissions about this conduct indicated he was making progress in sex offender treatment but that he was still trying to minimize his behavior by denying he choked the victim. It is important in sex offender treatment to accept full responsibility. This incident indicated impulsivity and the influence of intoxicating substances. It was also significant that Mr. Y. apparently had access to consensual sexual partners at the time but nevertheless attempted to coerce a victim to have sex.

In 1992, the Respondent was convicted of the misdemeanor of Sexual Abuse in the Second Degree with respect to a victim named Sheri. Mr. Y. and Sheri were next-door neighbors and acquaintances. He had been invited into the victim's home and while there, pulled off her pants, performed oral sex on her over her objections and inserted his penis in her vagina three times over her objections. The victim's baby was asleep in the house at the time. He then left his phone number for the victim asking her to call him if she wanted to see him again. Dr. Kirshner said this latter behavior indicated a lack of empathy, antisocial behavior and a sense of entitlement. The fact that Mr. Y. would presumably be aware that the victim could identify him but proceeded anyway demonstrated impulsivity. Mr. Y. was apparently sober at the time of this incident.

Upon being questioned by the police, Mr. Y. said the sex was consensual and said he [*5]wanted to submit a hair from his mustache to show he had oral sex with the victim. He said the victim was upset because she had a boyfriend. He later acknowledged to the police, however, that the victim had objected to having sex with him. (Dr. Singer testified that Mr. Y. was sentenced to 69 days in county jail and a $1000 fine for this crime). Dr. Kirshner said this showed a lack of remorse, a lack of conscience and exploitation. As recently as 2014, Mr. Y. has described the incident as both consensual and a "date-rape". This reflected a cognitive distortion or deviant thought process because a sexual encounter cannot simultaneously be consensual and a date-rape. Despite some progress in sex offender treatment, Mr. Y. has not taken full responsibility for this crime.

Dr. Kirshner said that "[t]he theory [behind sex offender treatment] is that thoughts dictate behavior" and the goal of treatment is to change deviant thought processes in order to change deviant behavior.^[FN7] Mr. Y. has said he doesn't need any more therapy and is now a different person. He is also deceptive so his assertions cannot necessarily be trusted. The 1992 incident reflected poor impulse control. Mr. Y. also had access to consensual sexual partners as well as prostitutes at the time but this incident reflects the fact that "the non-consensual element becomes a driving force for him".^[FN8] Mr. Y. was sober during his commission of this crime.

A 1994 incident involved a 15-year-old babysitter for Mr. Y.'s step-children whose name was Helen. Helen had been placed in Mr. Y.'s household by child protective services for three days on a temporary basis because she had run away from home. He was convicted of a non-sexual harassment violation for his conduct with Helen. During her first night at his home, Mr. Y. was alleged to have gone into Helen's room, fondled her between the legs which she resisted, then got on top of her for five minutes while he was clothed, gyrated his body on top of her and left. The following night in the early morning hours he was alleged to have gone into her room again, rubbed her in the crotch area and left. Mr. Y.'s 8-year-old stepdaughter was in the same room at the time.

Mr. Y. has denied this incident and said he was having an affair with the victim's father's wife or the victim's father's wife and the wife's 19-year-old daughter and that this provided a motive for the victim's father to fabricate these allegations. Dr. Kirshner said the fact that the victim had been placed with Mr. Y. by child protective services increased the likelihood of his being caught. He further opined that "who knows what he is thinking, but it addresses his impulsivity and his targeting in a predatory manner people who are vulnerable".^[FN9]

A 1998 incident concerned three phone calls the Respondent allegedly made to a 17-year-old half-sister of his wife or girlfriend at the time. The alleged victim's name was Mandy. Mr. Y. was not convicted of any offense in connection with this incident. In one call, he asked Mandy what she was wearing, in a second he asked whether and where she was touching herself [*6]and in a third earlier call said words to the effect of "what's your problem bitch".^[FN10] When Mandy called her half-sister and spoke to Mr. Y. to see if he was the one who had called, he said "yes, it was me you fucking bitch" then hung up.^[FN11] Mr. Y. said he was joking during these calls and was intoxicated.

The Instant Offense involved the Respondent's two step-children, Matthew and Alisha. (Dr. Singer testified that Alisha was 8 years old when the sexual abuse against her began and Mathew was 9 years old when Mr. Y. sexually abused him.) Alisha said that Mr. Y. would come into her room at various times between 1996 and 1998, fondle her vagina with her clothes on or off and lick her vagina. (Dr. Singer testified that Mr. Y. had also told him that he had inserted his finger into Alisha's vagina a couple of times.) Alisha, like an earlier victim, Helen, had been abused before, in Alisha's case by her biological father. Dr. Kirshner again opined that this revealed the predatory nature of Mr. Y.'s crimes. The child's mother was at work when the abuse occurred. Mr. Y. went into Mathew's room, who was 8 at the time, and fondled his penis under his boxer shorts on two occasions. The Respondent was on probation at the time of these offenses, further indicating his antisocial orientation.

At trial on these charges, the children testified that Mr. Y. was physically and emotionally abusive to his wife and the children during this period. Mr. Y. would pick up Mathew by the throat and throw him to the ground. He picked up Alisha on one occasion by the hair and threw her across a room. Mr. Y. testified during the trial and denied the abuse. The Respondent menaced his ex-wife with a crowbar and on one occasion drove his tractor-trailer to within inches of her car while the children were in it. He was in contempt of orders of protection regarding his ex-wife and children on numerous occasions. Abusive conduct occurred in 1997 and 1998. His ex-wife also said he took lots of drugs and had mood swings.

Mr. Y. told a doctor on one occasion that "he had urges towards his stepdaughter that he was fighting for a significant period of time and that he gave in to them."^[FN12] In treatment he initially admitted that he licked Alisha's vagina but said he did it only once then later denied that conduct. He initially admitted touching Mathew, but said he could not explain it. He then later said he had touched the boy's genitals because he wanted Mathew to pee into a balloon so Mr. Y. could use that urine for a urine test he needed to take in connection with his employment as a truck driver. Most recently he has said that he feels remorse for his behavior towards Mathew but cannot account for it. Mr. Y. has admitted that he is sexually attracted to girls between the ages of 15 and 17.

Testimony of "Cara" & Dr. Kirshner's Assessment of That Testimony

The State presented the testimony of one victim during the instant trial who alleged that Mr. Y. had sexually abused her, "Cara". Cara's mother was married to the Respondent's father (Floyd Y. Sr.) and Cara first met the Respondent at her step-father's house. On one occasion, which Dr. Kirshner testified based on his record review occurred when she was 10 years old, the [*7]Respondent touched her hands and she felt uncomfortable. Her mother subsequently left Floyd Y. Sr. and began a relationship with the Respondent. Her mother had been treated for paranoid schizophrenia since her mother was 14. Cara would visit the Respondent and her mother at their house. Cara was almost 15 years old at the time and being treated with medication for depression. She would play "quarters" with the Respondent and he would give her alcohol.

In November of 1999, shortly before her 15th birthday, the Respondent came to the couch where Cara was sleeping and put his tongue in her mouth. Her mother upstairs saw what occurred and called Cara a sleaze. On a subsequent occasion, when Cara may have already turned 15, Mr. Y. was rubbing Cara's feet and tried putting his hand up her pants. He grabbed between her legs and put his hand up her shirt over her bra. Her mother again saw what happened through a heat vent from upstairs and called Cara a name. Mr. Y. said he was using acid and drugs at the time but Cara did not remember him using anything on those occasions. Mr. Y. later told Cara that she had exaggerated the incident and he tried to laugh it off. Cara received an order of protection directing the Respondent to stay away from her. The district attorney's office told her she did not have to testify at a trial because Mr. Y. would be incarcerated based on his conviction for other sex offenses (the Instant Offenses) and so a separate legal case based on Cara's allegations would not be pursued. (Dr. Singer testified that police records reported Mr. Y. was using alcohol and marijuana and experiencing mood swings at the time he allegedly offended against Cara.)

Dr. Kirshner testified that Mr. Y.'s conduct towards Cara indicated a pattern of deviant sexual behavior with underage girls. The fact that both Cara and her mother were struggling with psychiatric issues is consistent with Mr. Y.'s pattern of targeting vulnerable victims. Mr. Y.'s "inability to control" his behavior was evidenced during this incident by the fact that Cara's mother was in the house when both incidents occurred and in fact discovered the abuse on both occasions.^[FN13] Mr. Y.'s attempt to "laugh off" the behavior and claim it resulted from drug use was consistent with his minimization of his sexually offending behavior.

Mr. Y.'s Conduct Since 2005\Additional Analysis of Diagnoses

Dr. Kirshner opined that if Mr. Y. did not have a Mental Abnormality, "he would have a viable relapse prevention plan that would prevent him from re-offending".^[FN14] He testified, however, that Floyd Y. did not have a viable relapse prevention plan. Sex offender treatment aims to help a person understand their cycle of offending and how to stop it before it occurs but there is no evidence Mr. Y. has yet developed such skills. He does not currently accept that he is sexually attracted to children. Since his hospitalization in 2005, he has at times made moderate treatment gains and more recently and at other times made minimal gains. His behavior has been argumentative and at times intimidating. He has been removed to a behavioral unit in OMH facilities at times because of his difficult behavior. He has disobeyed rules and exhibited hostile conduct. Mr. Y.'s grievances at OMH facilities are often unfounded. He has at times fought with other residents or postured to fight with them. At times he has been disrespectful to women staff, [*8]using profanity against them. He has not received sufficient sex offender treatment to change his behavior. Mr. Y. completed a six month sex offender treatment program in prison.

A child molester, as opposed to a pedophile, is a person who molests children but does not meet the criteria for Pedophilia. An example would be a person who was unable to sexually interact with adult women he was attracted to and used a child as a sexual outlet instead. The distinction, Dr. Kirshner opined, would not matter with respect to whether Mr. Y. had a Mental Abnormality. Regardless of whether Mr. Y. had Pedophilia, "if every time he fights with his wife he molests a child to get out his anger, it wouldn't matter in the end, he could still have a mental abnormality according to that definition".^[FN15] In addition to his pedophilic urges, Mr. Y.'s attraction to 15-17 year old girls has resulted in deviant unlawful behavior towards them. An attraction to such girls is not necessarily abnormal, but acting on that attraction is unlawful and deviant. Mr. Y. has recently said he is attracted to adult women, but since sexual preference manifests itself during puberty and is difficult to change, Dr. Kirshner does not credit that assertion.

Mr. Y. did complete drug abuse treatment in prison but there is nothing to indicate this is not still an ongoing problem. He has used substance abuse or alcohol intoxication as an excuse with respect to his sexual crimes but people in an intoxicated state don't normally shift their sexual preferences. Mr. Y. "doesn't really have a conscience that will break him from acting on his impulses".^[FN16] He has not been known to commit any sexual offenses for 17 years but has been confined and the normal triggers for such behaviors (like the presence of children) have not been present. Mr. Y. has not been known to have viewed child pornography since his confinement but not all pedophiles are aroused by child pornography. Dr. Kirshner acknowledged, however, that the DSM provides that the extensive use of child pornography is a useful diagnostic indicator of Pedophilia. Summarizing his findings regarding the Respondent's Mental Abnormality, Dr. Kirshner opined that:

[H]e has a sexual preference for children and his ability to control his desires are impaired by his lack of conscience, lack of remorse associated with antisocial personality and disinhibitions that are caused by his use and abuse of various substances over the years. What makes his condition current is that he has not been adequately treated for any of these problems.^[FN17

He said further that Mr. Y. attended only a very brief substance abuse treatment program, had refused toxicology tests and has not been adequately treated for Pedophilia. Mr. Y. also feels victimized. Dr. Kirshner acknowledged that he was not aware the Respondent had refused every toxicology screen he was asked to take and that Mr. Y. has never had a positive screen or been caught with drugs in OMH facilities.

When the Respondent was transferred from prison to a psychiatric hospital in 2005 it was [*9]done through a certificate signed by two psychiatrists, neither of whom diagnosed him with Pedophilia. The Pedophilia diagnosis was consistently given in later years by other evaluators. The Respondent's initial transfer to a psychiatric hospital in 2005 was subsequently found to be illegal. Mr. Y. was not informed that he would be confined in a psychiatric hospital until about two weeks prior to the time that occurred. He ran a Narcotics Anonymous group in prison. Relapse prevention plans are revised during sex offender treatment. Mr. Y. has never been known to cut-out pictures of children from newspapers or magazines. He was found with mislabeled DVD's while in an OMH facility on one occasion seven years ago in violation of facility rules but these DVD's did not have any pornographic content.

Dr. Jeffrey Singer, a New York State licensed psychologist, testified for the Respondent and opined that although Mr. Y. was a child molester he did not suffer from Pedophilia or have a Mental Abnormality. In addition to reviewing records, Dr. Singer also interviewed Mr. Y. three times. He noted there had been no evidence Mr. Y. had experienced any difficulty in controlling his sexually offending behavior for at least 14 years and that even in a controlled environment, a person with serious difficulty controlling sexually offending behavior would have manifested that in some way. He explained that Pedophilia was a psychiatric diagnosis based on sexual arousal to prepubescent children. A child molester is a person convicted of sexual conduct with a minor. He estimated that only about 25% of child molesters were also pedophiles.

Behavior is largely based on the situation a person finds himself in. Dr. Singer diagnosed the Respondent with "Unspecified personality disorder with antisocial traits". He said this meant that Mr. Y. had a fixed pattern of violating people's rights, being deceitful and being "a jerk".^[FN18] He also has problems with impulse control, frustration tolerance and polysubstance abuse. He has used alcohol, marijuana, cocaine and perhaps hallucinogens. Doctor Singer testified that: "[y]ou can imagine the explosive combination between having a character structure like that and a disinhibition that can come with such deep serious pernicious substance abuse".^[FN19] Mr. Y., however, has done a good job of becoming sober and seems committed to maintaining his sobriety. Those efforts manifest "a large degree of behavioral self-control".^[FN20] He has been in confined facilities for 15 years and there is no evidence he has ever engaged in substance abuse during that time.

In recounting the details of what Mr. Y. told Dr. Singer about the Respondent's sexually offending history, Dr. Singer opined that Mr. Y.'s credibility was "extraordinarily low" and that he "invariably" attempts to put himself in the best possible light.^[FN21] Dr. Singer opined that the [*10]1984 incident involving "Jean", recounted supra, was a "situational, opportunistic, impulsive, hedonistic event".^[FN22] The incident in which Mr. Y. allegedly made offensive phone calls to his wife or girlfriend's half-sister, according to Dr. Singer, did not speak to any Mental Abnormality, but rather was a manifestation of behavior which was antisocial, a violation of boundaries and the product of a dysfunctional family.

The sexual offense against "Sheri" did not indicate that Mr. Y. had Pedophilia because Sheri was an adult woman. Rape, as was evidenced in this incident, is illegal but not a paraphilia. Dr. Singer defined a paraphilia as having "recurrent intense thoughts and fantasies or behaviors that cause a deviant maladaptive pattern of sexual arousal."^[FN23] The incident with Sheri evidenced "hedonistic, impulsive, antisocial, self-centered type of behavior".^[FN24] "Helen" was about 15 when the alleged sexual abuse against her occurred and since she was postpubescent, this was not indicative of a paraphilia since most heterosexual males are sexually attracted to postpubescent females. "Cara" was likewise postpubescent when the alleged abuse against her occurred and thus this incident was also not indicative of a paraphilia.

The Respondent told Dr. Singer that at the time of the Instant Offense he was at the lowest point in his life and engaging in significant substance abuse. Addressing the report that Mr. Y. had said to one doctor on one occasion that "he had urges towards his stepdaughter that he was fighting for a significant period of time and that he gave in to them"^[FN25] , Dr. Singer said this was "the only time in his life that he had talked about and acted on having such urges towards prepubescent [children]."^[FN26] Urges in the moment must be distinguished from urges which continue through one's life. Mr. Y. has not been consistent in reporting information about his sexual crimes or alleged crimes but "he's never given a pedophilically laced explanation for his behavior."^[FN27] He has rather spoken of being disassociated, self-centered or depressed.

Mr. Y. told Dr. Singer that he was motivated to offend against his step-children by insecurity and lack of respect. He acknowledged that his step-daughter must have sexually aroused him at the time of his abuse because he abused her. He said he molested Alisha three different times and masturbated after one such incident. Two of the incidents were separated by nine months. Dr. Singer acknowledged that Mr. Y. had said after the first of these two incidents that he was going to stop but did it anyway because he had an urge or impulse to sexually abuse her again. He wanted to stop but acted again anyway. The Respondent reported that he was fighting with his wife but turned to his step-daughter for gratification. He said: "I want what I [*11]want when I want it."^[FN28]

A complete picture of Mr. Y.'s life indicates he is not a pedophile. Prior to 1996, he had never been known to touch a child and sexual orientation is usually formed between the ages of 16 and 25. He did not seek out his child victims, they were in his household which was almost like incest and Mr. Y. had extensive sexual interactions with adult females throughout his life. The Respondent's current age is associated with a decreased sex drive. A person with a sexual drive towards prepubescent children would have manifested that in some way during the past 14 years but there is no evidence he had any such drive during that time. Dr. Singer has worked extensively with domestic abusers and there is significant evidence Mr. Y. engaged in domestic violence in his second wife's home. Dr. Singer has never encountered a pedophile who engaged in domestic abuse.

Dr. Singer did not believe any of the Respondent's victims or alleged victims' non-consent was a motivating factor for him or something he found sexually stimulating. Mr. Y.'s mind set when committing his offenses was often self-pitying and based on a belief that he could simply take what he wanted. He opined there was no reason to believe Mr. Y. did not get the maximum benefit from the 6 month sex offender treatment program he completed in prison because people change the most during the first six months of psychotherapy. Mr. Y. received four disciplinary tickets in prison, all Tier 2 infractions, one having to do with a phone issue and two having to do with commissary packages. Prison infractions are classified as Level 1, 2 or 3, with Level 2 being an infraction of moderate severity. Although the Respondent is still considered to be at a moderate stage of sex offender treatment in the OMH system, Dr. Singer opined this is probably sufficient for him.

Dr. Singer acknowledged that the DSM-5 indicates there is an interaction between ASPD and Pedophilia and that males with both traits are more likely to act out sexually with children. According to the DSM-5, ASPD can be considered a risk factor for Pedophilia. Dr. Singer conducted an IQ test of Mr. Y. but Mr. Y. did not have his glasses at the time so the test may have slightly underestimated his IQ. Mr. Y. had a low average rating on the test which came out to 70 something to 80 on a point score. Although the Respondent has discussed how he was impaired by drugs and alcohol at various times during his offenses and otherwise, he has only one arrest for a substance abuse offense, a marijuana arrest in the 1970's. During his testimony, Dr. Singer recounted numerous inconsistencies in the information Mr. Y. has provided. These are not all recounted here.

The Respondent told Dr. Singer that he felt remorse for sexually abusing his step-children and reported that he had abused Alisha on one occasion after becoming aroused by watching a comedy featuring college-aged actresses. He reported that he had been drinking a lot during this time. He also told Dr. Singer at one point regarding his abuse of his step-children that "he doesn't lose sleep over it".^[FN29] Dr. Singer reported that Mr. Y. had told a previous doctor, Dr. Koontz, that "he was frustrated at the urges to touch Alisha, tried to fight them and he eventually [*12]gave in and repeated touching".^[FN30]

Summarizing the interplay of various forces in the Respondent's life, Dr. Singer opined that Mr. Y.'s "behavior was much more consistent, in my opinion, with somebody with a polysubstance abuse problem superimposed on an antisocial character, than a pedophile who has an ongoing fight within himself against urges to prepubescent children."^[FN31] Mr. Y. has made as much progress as he is likely to achieve in being able to empathize with other people but empathy is not really associated with Mental Abnormality. During the times he was offending Mr. Y. reported using marijuana, cocaine, crack, alcohol, possibly speed, Tylenol with codeine and also mentioned PCP at one point. He failed a detox program in 1997, which indicated he was abusing substances at that time

Mr. Y. has been removed from sex offender treatment programs at OMH facilities on numerous occasions for "not going along with the program" and also accused of "staff splitting" meaning attempts to pit one staff member against another.^[FN32] He has been found to have lied and possessed a toothbrush with a sharpened edge. In 2013, however, he reported being beat up at an OMH facility. Mr. Y. reported that his current sexual fantasies involve consensual sex with age-appropriate partners. Dr. Singer opined that "[m]ost child molesters are situational, opportunism, [SIC] hedonistic, self-gratifying and not driven by a craving, urging, yearning desire for prepubescent children, which is more consistent with a pedophilic disorder".^[FN33] Dr. Koontz reported in 2006 that the Respondent had a good understanding of the role which substance abuse played in his sexual offending and that he should stay away from women with young children.

A trial court may set aside a jury verdict pursuant to CPLR 4404 (a) where, inter alia, a party is "entitled to judgment as a matter of law". To order such a dismissal, the court must find there is "no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusion reached by the jury on the basis of the evidence presented at trial". Rodgers v. New York City Transit Authority, 70 AD3d 917, 919 (2d Dept 2010). A judgment as a matter of law pursuant to CPLR 4404 (a) is also referred to as a judgment finding a verdict legally insufficient. Id.; Zorm Trans Corp v. Woodside Management, Inc., 110 AD3d 1061 (2d Dept 2013). The Respondent's motion pursuant to CPLR 4404 (a) is granted on that ground.
    The State first contends that CPLR 4404 (a) is not applicable to Article 10 proceedings and in support of that assertion cites the trial court's decision in State v. Mack, 28 Misc 3d 180 (Bronx County Supreme Court 2010 [Gross, J.]). Mack held that CPLR 4404 (a) could not be applied in an Article 10 proceeding to reverse a jury verdict finding the Respondent did not suffer [*13]from a Mental Abnormality.

The decision was based partly on the fact that while Article 10 explicitly incorporates a number of CPLR provisions, it does not incorporate CPLR 4404 (a). But the decision also outlined allowances afforded the State in Article 10 cases including the right to stay release orders pending appeal and appeal adverse verdicts which the Court found indicated an intent by the Legislature to not allow a judgment finding a respondent suffered from a Mental Abnormality when a jury reached a contrary verdict. Those portions of the Court's analysis do not apply to the instant question: whether a trial court is empowered to set aside a verdict where a jury finds a respondent does suffer from a Mental Abnormality.

The two questions are also very different. Article 10 cases are not criminal proceedings but the Article 10 statute incorporates a number of the rules applicable to criminal trials, applies only to criminal offenders and can result in lifetime confinement, a sanction more severe than might occur in all but the most serious criminal cases. Allowing a court to void a jury's verdict finding a respondent did not have a Mental Abnormality, to carry the analogy forward, would be the equivalent of allowing a criminal defendant to be found guilty although a jury had reached a not-guilty verdict. Conversely, criminal trial courts are empowered to set-aside jury verdicts adverse to criminal defendants on various grounds. See CPL 290.10 (Trial Order of Dismissal); CPL 330.30 (Motion to set aside verdict). As the Mack court recognized, Article 10 provides respondents with "numerous procedural safeguards in an article 10 proceeding which mirror those rights afforded to a defendant in a criminal proceeding". 28 Misc 3d at 193 (citation omitted).

Mack, in this Court's view, is an exceptionally well-reasoned decision. The part of the decision's rationale which applies to the instant question, however, has been abrogated by appellate case law decided subsequent to Mack on the general issue here: the ability of trial courts to decide dispositive questions as a matter of law under the CPLR even when Article 10 does not explicitly incorporate those CPLR provisions. Specifically, controlling appellate authority has held that it is proper for trial courts to determine whether a respondent is a "Detained Sex Offender" under Article 10 on a Motion for Judgment During Trial pursuant to CPLR 4401 (one of the statutory provisions the Respondent moved under here). State v. Geoffrey P., 100 AD3d 911 (2d Dept 2012), lv denied, 20 NY3d 862 (2013); State v. S. Mc., 103 AD3d 652 (2d Dept 2013), lv denied, 21 NY3d 854; State v. Robert F., 101 AD3d 1133 (2d Dept 2012). The appellate courts have so held even though CPLR 4401 is not explicitly referenced by Article 10 and even though the Article 10 statute, to the contrary, explicitly provides that this decision is made by juries. See MHL § 10.07.

These cases have taken a pragmatic approach to the question of the extent to which the CPLR applies to Article 10. The CPLR governs all civil proceedings "except where the procedure is regulated by inconsistent statute".^[FN34] Article 10 cases are civil proceedings and nothing in Article 10 explicitly negates the authority of trial courts to set aside legally insufficient verdicts. The authority the Court is exercising here is consistent with that which it could exercise in a criminal case. It furthers the goal of judicial economy. It will not prejudice the State nor jeopardize the public. The State here not only has the right to appeal, they have the explicit [*14]authority to obtain a stay of this Court's order. MHL § 10.13. Especially after 9 ½ years of confinement, the Respondent deserves to have this case resolved expeditiously.

Kenneth T. reversed a judgment of the Appellate Division which had affirmed a judgment of the trial court holding the Respondent had a Mental Abnormality and confining him to a secure treatment facility.^[FN35] The Kenneth T. majority opinion was authored by Judge Pigott and joined by Judges Lippman, Smith and Rivera. Judge Graffeo issued a concurring opinion in which Judges Read and Abdus-Salaam joined. In 1982, Kenneth T. forced a 17 year-old victim to a roof at knife point, raped her and stole her coat. He was arrested after being seen wearing the coat, convicted after trial of Rape in the First Degree and other charges and served 17 years in prison. Approximately 13 months after being released from that sentence, he offered an acquaintance a ride home, ordered the victim out of his car, threw her to the ground and attempted to rape her. The victim escaped after a passer-by saw the incident. He pled guilty to Attempted Rape in the First Degree and received an 8 year prison sentence followed by five years of post-release supervision. The Respondent received disciplinary infractions while in prison for assaulting staff and other violations and was removed from sex offender treatment on three occasions for disciplinary reasons but was not found to have engaged in any sexual misconduct.

A doctor who testified at the Respondent's probable cause hearing said that Kenneth T. told him "he had difficulty controlling his sexual impulses". 24 NY3d at 178. Dr. Kirshner (the same witness who testified at the instant trial) testified for the State and opined that Kenneth T. had ASPD and "Paraphilia NOS" (Paraphilia Not Otherwise Specified) which in this case meant sexual urges, fantasies or behaviors concerning non-consenting partners. Dr. Kirshner said such arousal could be inferred from the Respondent's conduct but acknowledged he could not be certain the Respondent found the non-consensual aspect of his offenses sexually arousing. The combination of both disorders, he said, gave the Respondent an inability to "think before he acts", "internal [braking] mechanism" or "internal controls such as a conscience which might curb his impulses". 24 NY3d at 180 (quotations and bracket in original decision).

The majority opinion said that Dr. Kirshner identified two factors as supporting the conclusion that the Respondent had serious difficulty controlling his sexually offending behavior. The first was that Kenneth T. committed his crimes under circumstances where it would be obvious he could be easily identified and caught. He committed the first crime in a neighborhood he frequented and wore the coat he took from the victim. The latter victim knew Kenneth T. and therefore could identify him. The second factor supporting the serious difficulty finding was that Kenneth T. committed the second offense after serving 17 years in prison for his initial sex crime.

Judge Graffeo's concurring opinion noted that the Respondent was on parole for a non-sex offense when he committed his initial rape. She said that Dr. Kirshner had testified that Kenneth T. lacked sufficient impulse control and had "very little braking mechanism to stop his impulses once [they are] set in motion". 24 NY3d at 200 (quotations and brackets in original). She noted that the second offense took place in a public parking lot and that the Respondent was likewise on parole and subject to sex offender registration when that crime occurred.

The majority first noted that while Paraphilia NOS was a controversial diagnosis in the psychiatric profession, the legitimacy of that diagnosis as a predicate for a Mental Abnormality finding had been upheld in State v. Shannon S., 20 NY3d 99 (2012), cert denied, Shannon S. v. New York, 133 SCt 1500 (2013). The Court did hold, however, that the trial evidence was legally insufficient to demonstrate that Kenneth T. had serious difficulty controlling his sexually offending conduct. The Court focused on the inherent difficulty of inferring that an offender had the requisite deficit in volitional control through a review of his offending behavior:

A rapist who killed his victims so that they could not identify him may have serious difficulty controlling his sexual urges. Conversely, one who raped an acquaintance and permitted her to escape may not have serious difficulty controlling his sexual urges. . . A person who committed a rape soon after serving a very short sentence for sexual abuse may have serious difficulty in controlling his sexual misconduct. Conversely, one who committed a rape soon after serving a very lengthy sentence may not have serious difficulty controlling his sexual urges. 24 NY3d at 187-188.

[I]t 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, though he knew he was running a significant risk of arrest and imprisonment. 22 NY3d at 188.

Dr. Kirshner's testimony, the Court held, was legally insufficient to demonstrate serious difficulty, even viewing the evidence in a light most favorable to the State:

Dr. Kirshner's testimony that Kenneth T. lacked "internal controls such as a conscience that might curb his impulses" is not a basis from which serious difficulty in controlling sexual conduct may be rationally inferred. It is as consistent with a rapist who could control himself but, having strong urges and an impaired conscience, decides to force sex upon someone, as it is with a rapist who cannot control his urges. Id.

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.

Judge Graffeo's concurring opinion found that the judgment against Kenneth T. should be reversed because the State had not presented legally sufficient evidence to support its proffered diagnosis of Paraphilia NOS. She strongly disagreed, however, with the majority's view that the trial evidence had been legally insufficient to demonstrate the Respondent had serious difficulty controlling his sexually offending behavior. The notion that reversal was required because the State's evidence was as consistent with an offender who could control his impulses but chose not to as an offender who had serious difficulty controlling such behavior, she said, had created an "impossible standard":

The majority fails to indicate exactly what other type of evidence a factfinder may rely upon to determine an offender's inability to control sexual behaviors, short of a clear admission from the offender regarding a lack of control over urges. 24 NY3d at 200.

Precisely what kinds of evidence under Kenneth T. might be sufficient to withstand a dismissal motion? What must the State do in these cases? To answer that question, it is useful to take a brief detour and review the jurisprudence of the Court of Appeals on Article 10 cases over the past 18 months. The cases decided by the Court during that period have revealed an extraordinary gulf between the legal standards which have been applied in Article 10 cases by trial and mid-level appellate courts and the holdings of the Court of Appeals. The Court of Appeals has provided Article 10 respondents with significantly greater due-process rights and imposed significantly greater restrictions on the State than the lower courts. Kenneth T. cannot be read in a vaccum. It must be understood in the context of these decisions.

During the past 18 months, the Court of Appeals has decided nine Article 10 appeals. The Court found that the trial court erred, at least in part, in eight of those cases. The one exception concerned a venue change issue. In six cases, the Court of Appeals reversed orders of the Appellate Division which had affirmed orders and /or jury verdicts in trial courts. In two cases, the Court found the errors made in the trial court were harmless. In one of those two cases, however, State v. John S., 23 NY3d 326 (2014), the Court subsequently found the diagnosis which served as the predicate for the Respondent's Mental Abnormality could not alone serve as the basis for a Mental Abnormality finding. State v. Donald DD., supra. In every case in which error was found it concerned a trial court determination adverse to a Respondent.

First, in State v. Enrique D., 22 NY3d 941 (2013), the Court reversed an Appellate Division order which had upheld a jury's Mental Abnormality verdict and the trial court's confinement order. The Court of Appeals held it was reversible error for the trial court to require the Respondent to present evidence that he had not offended against one of at least 26 prior sexual partners through the testimony of the Respondent's expert witness rather than the [*15]testimony of the previous alleged sexual partner herself. In the instant case, State v. Floyd Y., supra, the Court again reversed an Appellate Division order which had upheld a jury's Mental Abnormality verdict and a confinement decision by the trial court. The Court held the admission of evidence of two alleged child sexual abuse claims against the Respondent through the testimony of the State's expert witnesses violated the Respondent's due-process rights. Floyd Y. also announced a series of new rules for the admission of "basis evidence" by expert witnesses in Article 10 trials which has significantly limited the evidence which can be presented by the State in these cases.^[FN36]

The jury trials in State v. John S., 23 NY3d 326 (2014), rearg denied, 24 NY3d 933 and State v. Charada T., 23 NY3d 355 (2014) were conducted long before the evidentiary rules outlined in Floyd Y. were announced. Both cases were considered by the Court of Appeals, however, after Floyd Y. In both cases, the Appellate Division had affirmed a jury verdict finding the Respondent suffered from a Mental Abnormality and a confinement order issued by the trial court. In both cases, the Court of Appeals held the trial courts erred by allowing the jury to hear evidence of an alleged rape committed by the Respondent in violation of the evidentiary rules outlined in Floyd Y. In both cases, however, the Court of Appeals found these errors were harmless. In John S., the Court did not address the question of whether the diagnosis proffered by the State's experts in that case, ASPD, was alone sufficient to find a Mental Abnormality because a majority of the court found that issue had not been presented to it. See State v. Donald DD., supra, n. 8. But that issue was considered in Donald DD.

Donald DD. again reversed an Appellate Division order which had upheld a jury's Mental Abnormality verdict and a confinement order by the trial court. In Donald DD., the Court held that "evidence that a respondent suffers from antisocial personality disorder cannot be used to support a finding that he has a mental abnormality . . . . when it is not accompanied by any other diagnosis of mental abnormality". 24 NY3d at 177.^[FN37] The Donald DD. decision has spawned a wave of new motions and appeals in Article 10 cases seeking the dismissal of petitions where a [*16]respondent's primary diagnosis is ASPD.^[FN38] The companion case to the Donald DD. decision at issue here, State v. Kenneth T., reversed a Appellate Division order which had affirmed a bench trial verdict and confinement ruling.

Kenneth T. is significant not only because of the legal sufficiency issue which is the subject of the instant decision. It is also important because of the extreme skepticism the majority opinion expressed over whether "Parpahilia NOS" will eventually be found to be a valid diagnosis under Article 10. The Kenneth T. majority noted that the legitimacy of that diagnosis as a predicate for a Mental Abnormality finding had been upheld in State v. Shannon S., supra.. The Kenneth T. majority noted, however, that three members of the Kenneth T. majority had written a dissenting opinion in Shannon S. opining that Paraphilia NOS was "junk science devised for the purpose of locking up dangerous criminals" and had expressed "grave doubt" that such a diagnosis would survive a Frye hearing which was not conducted in the Shannon S. case. 24 NY3d at 186.^[FN39]

State v. Nelson D., 22 NY3d 233 (2013) reversed an Appellate Division ruling which had affirmed a trial court order directing the Respondent who was subject to SIST to be placed at an in-patient facility operated by the Office for People with Developmental Disabilities. The Court held that Article 10 provides for two distinct dispositional outcomes, confinement or SIST, and that SIST could not include the kind of inpatient placement which had been ordered by the trial court.

The Article 10 statute provides that respondents who have a Mental Abnormality shall be subject to SIST in the community unless the state proves the necessity for confinement by clear [*17]and convincing evidence. From the statute's inception on April 13, 2007 until October 31, 2013, however, 71% of the offenders who have been subject to initial dispositional decisions have been confined rather than released to supervision.^[FN40] In State v. Michael M., 2014 NY SlipOp 08789, (December 17, 2014) the Court held that in order to revoke a respondent's SIST placement and confine him the State must demonstrate he has an "inability to control sexual misconduct", a standard the Court held had not been met in the case. Since the statutory standard for confinement of a SIST violator is the same as for confining a respondent after an initial dispositional hearing, the "inability to control sexual misconduct" standard will now also apply to initial dispositional hearings. The Court noted that the statutory standard for confinement of a respondent after either trial or a SIST violation required the court to find a respondent had "such a strong predisposition to commit sex offenses, and such an inability to control behavior, that the person is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility". 2014 NY SlipOp § IV; quoting MHL § 10.03 [e] (emphasis added in decision). The Court held the statute "clearly envisages a distinction between sex offenders who have difficultly controlling their sexual conduct and those who are unable to control it. The former are to be supervised and treated as outpatients' and only the latter may be confined." Id.

Previous holdings by trial and appellate courts had not explicitly construed the statute in that manner. Although courts had not previously parsed the statutory language to the degree the Michael M. court did, the phrase "such an inability to control behavior" had apparently been construed to mean such a degree or extent of inability to control behavior that a respondent would likely be a danger to others and commit sex offenses if not confined.^[FN41] An absolute inability to control behavior was not required prior to Michael M. The question going forward will be the extent to which this standard can be met. In rejecting a requirement that sex offender civil management systems (as opposed to the dispositional decisions considered by Michael M.) had to constitutionally require a "total" or "complete" lack of ability to control behavior, the United States Supreme Court in Kansas v. Crane, 534 U.S. 407, 411-412 (2002) noted that "amici on opposite sides of this case agree, an absolutist approach is unworkable . . . most severely ill people — even those commonly termed 'psychopaths'- retain some ability to control their behavior."

Finally, in Matter of Tyrone D. v. State, 2015 NY SlipOp 01301, (February 12, 2015) the Court affirmed an order of the Appellate Division which had affirmed a trial court order denying [*18]the Petitioner's motion to change the venue of an annual review hearing for a confined Article 10 respondent from Oneida to New York County. The Court of Appeals agreed with the trial court that the Petitioner had not established good cause to warrant the venue change.

The Kenneth T. decision did not announce any bright-line legal sufficiency rules for Article 10 cases and on its face is a decision limited to its facts. In this Court's view, however, its implications are far greater. This Court has presided over eleven Article 10 trials to verdict. It has also conducted numerous Article 10 hearings of every kind, other than annual review hearings for confined offenders, which are venued outside New York County. This Court has heard expert witnesses testify in dozens of Article 10 proceedings. What Dr. Kirshner did in the instant matter and what he apparently did in Kenneth T. was not materially different from what expert witnesses do in all of these cases.

As will be seen infra, what the Court of Appeals found fault with in Kenneth T. was not just Dr. Kirshner's analysis. It was, this Court would submit, the general method of analysis he used and the kinds of inferences which experts in these cases generally propound. Moreover, since the Court did not outline what would be sufficient in these cases (with one exception) it is not clear what the State could possibly do in most trials to present sufficient proof. Thus, the new standards imposed by Kenneth T., as the three concurring judges in the case surmised, may be "impossible" to meet, at least in most cases.

The Kenneth T. decision primarily concerned the quantum of proof which is necessary to distinguish an offender who has serious difficulty controlling his sexually offending behavior from an offender who has greater volitional control but chooses not to exercise it. The "serious difficulty" standard has always been subject to significant criticism and before examining the Kenneth T. holding in more detail, it is worth reviewing some of that standard's conundrums. First, the term is not defined, in law, psychology, among experts or for juries. It is therefore not applied consistently. In Kansas v. Crane, supra, Justice Scalia jointed by Justice Thomas dissented from the majority's holding that the Constitution required States to show sex offenders had "serious difficulty" controlling sexually offending behavior in order to civilly confine them. He argued the reason the standard had not been more precisely defined was that an elaboration which "passes the laugh test" would be "impossible":

Will it be a percentage ("Ladies and gentlemen of the jury, you may commit Mr. Crane under the SVPA [Sexual Violent Predator Act] if you find, beyond a reasonable doubt, that he is 42% unable to control his penchant for sexual violence")? Or a frequency ratio . . . . Or merely an adverb ("Ladies and gentlemen of the jury, you may commit Mr. Crane under the SVPA if you find, beyond a reasonable doubt, that he is appreciably-or moderately, or substantially or almost totally-unable to control his penchant for sexual violence")?. . ." 535 US at 423-424 (Scalia, J. dissenting).

Personal responsibility and blameworthiness are inconsistent with a lack of volitional control. Because the "serious difficulty" concept is so fluid, however, a skilled State's advocate can simultaneously argue that an offender cannot control his deviant sexual behavior but nevertheless should be held accountable for that conduct through an adverse verdict. The State [*19]made such an appeal in this case during its summation, without objection, in response to defense arguments that Mr. Y.'s conduct was not the result of a sexual disorder but of other difficult life circumstances including substance abuse and an antisocial personality:

The fact that he [Mr. Y.] chose with his free will to go and sexually abuse two children is a choice he made, he has free will. Okay, let's not try to say poor guy, he hit the hard times, he did not know what he was doing.^[FN42]

What you are talking about . . . is a man who has made choices. . . . [H]e still chose on his free will to get involved in certain behavior, there is no getting around that.^[FN43]

Ladies and gentlemen, he has free will to go into therapy if he wants, nobody is stopping him. They are begging him to come, they are saying, please, you are at stage two, [of sex offender treatment] get to stage four, complete it. What does that man do, he takes it upon himself not to go, free will, who told him not go to. That is the problem here, everybody is making excuses for him. . . .^[FN44]

He is not a puppet of antisocial personality disorder. They make it sound like he's got little strings tied to you and when you are antisocial you walk around and this current just pulls you across. I am antisocial, can't help myself, oops. Free will, adult man, had time to think about it, nothing done. His choice.^[FN45] (emphasis added throughout).

Second, although the purpose of Article 10 is to protect the public, the "serious difficulty" standard does not optimally accomplish that goal. An offender who commits forcible rapes because he cannot control himself is no more dangerous than an offender who commits the identical rapes because he is in complete control of his actions but chooses to rape anyway. The first offender may be confined for life upon the completion of his prison sentence. The second cannot be subject to any form of mental health supervision.

The reason for the distinction does not primarily concern public safety. The "serious difficulty" standard rather provides the justification for the Article 10 system. The system does not confine or supervise offenders solely to prevent them from re-offending. That would be an unconstitutional deprivation of due-process. It confines or supervises offenders in order to treat the impairment of their volitional capacities and protect the public until that treatment or other circumstances make the offender no longer dangerous. The system is justified only if some [*20]diagnosable "condition" warrants treatment. As those who work in this field know, the term "Mental Abnormality" is not used in psychology nor is it a "diagnosis". It is a legal construct which defines the category of offenders who may be lawfully subjected to indefinite confinement or supervision following the expiration of their prison terms.

In practical terms, however, as the United States Supreme Court noted in Kansas v. Crane, supra, "[t]he line between an irresistible impulse and an impulse not resisted is probably no sharper than that between twilight and dusk." 534 US at 412, quoting American Psychiatric Association, Statement on the Insanity Defense 11 (1982), (quotation in subsequent publication omitted). Prior to Kenneth T., this court is not aware of any case in which evidence was held legally insufficient because the "irresistible impulse\impulse not resisted" distinction was not adequately proven.

The general methods used by experts in Article 10 cases are the same and at their core are not complicated. Experts seek to gather all of the information they can about a respondent primarily from documentary records, seek to interview him and score a respondent on actuarial risk assessment instruments or other scales which seek to measure his propensity for deviant sexual behavior by comparing him to other offenders with similar characteristics. They may conduct additional cognitive tests. They review an offender's progress in sex offender treatment. They then use their clinical judgment gleaned from many years of assessing and treating sex offenders to draw inferences about the extent to which a respondent has serious difficulty controlling sexually offending behavior. Among all of these information sources, it is often the circumstances of a respondent's criminal sexual conduct itself which is most important in reaching a conclusion on the serious difficulty question. That is what Dr. Kirshner did in this case and apparently in Kenneth T.

Trials and hearings, other than probable cause hearings, often feature at least one competing expert from each side. In most trials and hearings, ultimate judgments don't hinge on factual disputes. Factual disputes do not loom large in most cases because the vast bulk or often all of the materials the competing experts review are identical. In most cases, outcomes hinge on the competing inferences fact-finders and experts draw.

The extent to which an offender, at the time of a trial, is in control of his sexually offending behavior is rarely provable, however, by direct evidence. This Court has never heard a case where an offender acknowledged that, as of the time of a proceeding, he had serious difficulty controlling his urge to re-offend. The idea that a person's mental state can be inferred from his conduct, however, is a well-established legal principle. Jurors in criminal trials, for example, are instructed that in order to determine whether a defendant had the intent to commit a crime, they must determine whether that intent can be inferred beyond a reasonable doubt from what the defendant did or said at the time of a crime, what result followed that conduct and whether that result was the natural, necessary and probable consequence of that conduct.^[FN46]

That is how Article 10 cases also proceeded prior to Kenneth T. Under Kenneth T., however, fact-finders will apparently no longer be permitted to draw conclusions from such competing inferences. At least with respect to the "serious difficulty" question, the clear and convincing evidence standard has become much more exacting.

In this case, Dr. Kirshner argued that the fact that Mr. Y. had offended against Cara while her mother was in the same house under circumstances where his abuse was easily discovered indicated he had serious difficulty controlling his urge to re-offend. He said the fact that Mr. Y. had offended against "Sheri" a next-door neighbor and acquaintance who he knew could identify him, also indicated his impulsivity. The 1994 alleged sexual abuse of "Helen" was impulsive again because the fact that she had been placed temporarily in Mr. Y.'s home by child protective services rendered his abuse easily detectable. The validity of such inferences, however, were explicitly rejected in Kenneth T. See, 24 NY3d at 187-188. The Court held that serious difficulty cannot be inferred from "such meager material as that a sex offender did not make efforts to avoid arrest and re-incarceration". Id. Kenneth T. was on parole for a non-sexual offense at the time of his first rape. He was on parole and subject to sex offender registration at the time of his second sex crime. Neither of these facts, however, were noted by the Kenneth T. majority as being relevant in their analysis.

During argument on the instant motion, the State's attorney (who was also the State's attorney during the Kenneth T. trial) urged that Mr. Y.'s crimes were committed under circumstances where he was much more likely to get caught than Kenneth T. Thus, while Kenneth T. committed his initial crime in his neighborhood and was found with the victim's coat, Mr. Y. committed his offense against Cara when her mother was in the same house. But what the Court of Appeals in Kenneth T. found lacking was not the extent of evidence which was presented on the detection issue. What the Court found lacking was the validity of the inference itself, the validity of allowing an offender's knowledge that he might get caught to permit a conclusion that he lacked volitional control.

The Kenneth T. majority, as noted supra, also held 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, though he knew he was running a significant risk of arrest and imprisonment". 22 NY3d at 188. The Article 10 statute provides and jurors in Article 10 trials are instructed that they may not find a respondent suffers from a Mental Abnormality by virtue of a respondent's commission of a sex offense alone. See MHL § 10.07 (d). But that is a far different proposition from the assertion that serious difficulty cannot be inferred from the circumstances surrounding an offender's criminal conduct.

Drawing inferences from behavior, primarily sexually offending behavior, is what experts do in these cases to arrive at their conclusions. As one of the State's doctors argued in describing the Respondent's Mental Abnormality in Donald DD.: "his behavior has shown you what goes on inside his mind, and he acts upon the urges that he has". Donald DD., supra, 24 NY3d at 183. If that is an illegitimate method of determining serious difficulty, as the Kenneth T. court asserted, however, then it is unclear how the State will be able to prove most of these cases. Indeed, Dr. Kirshner used almost identical language in both the instant case and Kenneth T. to describe the inferences he drew regarding the internal workings of the Respondent's psyche.

As noted supra, he testified in this case that the combination of ASPD and Pedophilia meant Mr. Y. "would not have a conscience or internal braking mechanism that would allow him or inhibit him from future pedophilic acts"^[FN47] The addition of substance abuse disorders, he [*21]further opined, impairs "braking mechanisms" which would otherwise exist. Mr. Y., Dr. Kirshner testified, "doesn't really have a conscience that will break him from acting on his impulses".^[FN48] In Kenneth T., he similarly testified that the Respondent lacked an "internal [braking] mechanism," or "internal controls such as a conscience which might curb his impulses". 24 NY3d at 180 (quotations and bracket in original decision). The Court of Appeals found the "psychological portrait" Dr. Kirshner presented during the Kenneth T. trial clearly inadequate. It is difficult to understand how a similar portrait, by the same doctor, using the same reasoning process and even the identical words could possibly be adequate here.

Perhaps the most important post-Kenneth T. case which has yet been announced was the First Department's decision on February 19, 2015 in State v. Frank P., 2015 NY SlipOp 01551 (1st Dept 2015). Frank P. reversed a jury Mental Abnormality verdict and a trial court decision placing the Respondent on Strict and Intensive Supervision and Treatment (SIST). This Court presided over the Frank P. probable cause hearing, trial and dispositional hearing and has been supervising Mr. P. on SIST for more than two years. While this Court would have followed a different reasoning process in analyzing that case under Kenneth T. than the First Department, this Court believes the First Department correctly reversed the Frank P. judgment in light of Kenneth T.

In Frank P. two State doctors opined the Respondent suffered from a Mental Abnormality. Frank P. was initially charged with four home-invasion rapes of stranger victims, two additional robberies of women and one burglary of a woman which likewise all involved him attempting or gaining entry into victims' apartments. All of the crimes occurred in a four month period. He was convicted only of non-sexual crimes with respect to those charges and then released from prison after a significant prison term.

Less than one month after his release, he committed another rape. Over the next four months he committed five more home invasions and rapes following a similar pattern. He was convicted of three rapes and then spent 33 years in prison. He assaulted the assistant district attorney who was a party to one of his trials in open court after one of the verdicts against him but was not charged with a crime for that assault. The Article 10 process commenced upon his release from prison at age 62. The State's experts diagnosed him with Paraphilia NOS and ASPD. Notably, there was no evidence the Respondent had engaged in any deviant sexual behavior during his 33 year prison term. Mr. P. also engaged in many productive actions while incarcerated but continues to this day to deny he has ever committed a sex crime.

The First Department found that neither of the State's doctors "conducted a quantified analysis of the factors that led to their individual conclusions" but rather testified in a "conclusory" fashion. 2015 NY SlipOp at 9. The Court faulted the experts for relying on the criminal history which preceded Frank P.'s incarceration. They also criticized the State's experts for drawing conclusions based on their diagnoses, opining that "drawing a conclusion that a respondent has a volitional impairment from only a diagnosis of sexual abnormality violates the Court of Appeals' recent mandate in Donald DD. that the State must prove separate from the [*22]abnormality that a sex offender has serious difficulty controlling his behavior". Id.^[FN49] The Court found the Respondent's 33 year prison term without evidence of sexual offending was also significant.

If an expert cannot infer serious difficulty from either the circumstances surrounding an offender's crimes (Kenneth T.) nor an expert's psychiatric diagnoses (Donald DD. & Frank P.), how can Mental Abnormality be proven? Is it fair to deny a jury the opportunity to conclude that the fact that an offender does not rape in prison may say little about whether he will rape when he is released, especially when that same offender raped again within one month of being released from prison the last time?

The evidence during the instant trial indicated that Floyd Y. had made only limited progress in sex offender treatment. His lack of such progress and his failure to develop an adequate relapse prevention plan was one of the important factors which led Dr. Kirshner to conclude Mr. Y. suffered from a Mental Abnormality. But in Kenneth T., the Respondent was removed from a prison sex offender treatment program three times for disciplinary reasons. That fact was not mentioned in the Kenneth T. Court's legal sufficiency analysis.

Even a respondent's admissions, after Kenneth T., may carry little weight in the serious difficulty calculus. As noted supra, Mr. Y. told one doctor on one occasion that "he had urges towards his stepdaughter that he was fighting for a significant period of time and that he gave in to them." He also told a different doctor that he had fought and succumbed to the urge to molest his 10 year old stepdaughter. The evidence in Kenneth T. indicated the Respondent reported that he "had difficulty controlling his sexual impulses". The Kenneth T. majority concluded, however, that the Respondent's admission that he had "difficulty controlling his sexual impulses" did not demonstrate he had the requisite "serious difficulty" even, presumably, when that admission was coupled with the other evidence in the case, including his sex crimes. Kenneth T., supra, n. 7. Whatever reliability the Respondent's statement in Kenneth T. may have had, moreover, one thing both experts in the instant case agreed on was that Mr. Y. was consistently deceitful and a "poor historian" whose accounts of his past actions and feelings could not be relied upon without corroboration.

The State during argument on the instant motion also urged that the instant verdict was legally sufficient because the facts here were more egregious than those in Kenneth T. in other respects. But, in the Court's view, that assertion is both factually incorrect and beside the point. Every case is obviously different. But a comparison of Floyd Y. and Kenneth T. allows reasonable arguments to be made that the evidence of serious difficulty was both greater or lesser in each case. Floyd Y. was accused of committing many more sexual offenses than Kenneth T. But the crimes Kenneth T. was convicted of, under the Penal Law, were significantly more serious. Kenneth T. offended again after a 17 year prison term. Floyd Y. was never sanctioned with any punishment greater than a brief local jail sentence prior to the Instant Offense and has been confined for more than 14 years without any evidence he has engaged in deviant sexual behavior. At age 58, moreover, Floyd Y. may well be "aging out" of both his antisocial and sexually offending propensities.

The Kenneth T. court did not dismiss that case on the basis that the Paraphilia NOS diagnosis proffered by the State's expert was invalid. But it did express great skepticism about the legitimacy of that diagnosis. There is no dispute that the diagnosis of Pedophilia proffered by Dr. Kirshner in the instant matter may be a valid predicate for a Mental Abnormality. On the other hand, as in Kenneth T., the evidence for that diagnosis was very thin.

Floyd Y. is a man who has engaged in a wide range of sexual conduct with postpubescent girls and adult women throughout his life. He was married twice and engaged in at least one additional long term intimate relationship. He has fathered multiple children. He allegedly engaged in coercive sexual conduct with postpubescent girls or adult women on at least four occasions. But the jury did not learn he had ever molested a prepubescent child with the sole exception of the sexual abuse of his two step-children. That occurred 17 years ago and was limited to a 2 year period.^[FN50] Dr. Singer, moreover, provided an explanation for why that behavior occurred for reasons which did not support a Pedophilia diagnosis. He also testified without contradiction that most men who molest children are not pedophiles.

There is no evidence that Mr. Y. has engaged in pedophilic behavior for the past 16 years. Of course, Mr. Y. has not had access to children during his confinement. But that would not prevent him from acting out sexually in other ways, by engaging in lewd conduct, attempting to obtain child pornography or seeking non-pornographic images of children, for example. This Court has heard evidence that offenders in psychiatric facilities in other cases have engaged in all of those behaviors, often repeatedly.

As the Respondent's counsel also argued, Dr. Kirshner during a key passage of his testimony appeared to misstate the legal standards governing the definition of a Mental Abnormality. As noted supra, he testified that regardless of whether Mr. Y. had pedophilia, "if every time he fights with his wife he molests a child to get out his anger, it wouldn't matter in the end, he could still have a mental abnormality according to that definition".^[FN51] After Donald DD., however, were the underlying diagnosis in Dr. Kirshner's example ASPD rather than Pedophilia that certainly would matter. It would likely mandate a finding that Mr. Y. did not suffer from a Mental Abnormality.^[FN52]

Indeed, most of the sexual offending Mr. Y. has engaged in during his life can be linked only to a combination of ASPD and substance abuse, not Pedophilia. In Donald DD., however, the majority held that "[w]e believe that an ASPD diagnosis has so little relevance to the controlling legal criteria of Mental Hygiene Law § 10.03 (i) that it cannot be relied upon to show mental abnormality for article 10 purposes". 24 NY3d at 190. Given that categorical statement, how could a case like this one, where most of the Respondent's sexual offending was driven by ASPD, possibly result in a valid Mental Abnormality finding?

The Kenneth T. court provided one example of what would constitute legally sufficient evidence in an Article 10 case. It said 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". We cannot know precisely what the Court had in mind with that assertion. But, in this Court's view, the "detailed psychological portraits" the Court sought in Kenneth T. may be unattainable given our current understanding of human behavior, at least in the vast majority of Article 10 cases. Article 10 experts reach conclusions about an offender's serious difficulty in exercising volitional control by drawing inferences from an offender's statements and behaviors.

There may be cases where the State may still be able to prove a Mental Abnormality even after Kenneth T. A respondent who credibly reported that as of today he had "serious difficulty" controlling his sexually offending behavior and would molest a child were he released would presumably still qualify for sex offender civil management. A respondent with a psychotic disorder which obviously made him unable to control his actions might be another category which would warrant civil management, although such an offender might presumably warrant involuntary confinement under other provisions of the Mental Hygiene Law. The vast majority of cases, however, in this Court's experience, do not fall into either of those categories. They rather fall into the broad category which includes offenders like Kenneth T., Donald DD., Frank P., John S. and Floyd Y.

The State has administered the Article 10 statute with great restraint. During the last year in which statistics are available OMH recommended 6.9% of the sex offenders who qualified for Article 10 proceedings for sex offender civil management.^[FN53] A smaller number will eventually be found to have a Mental Abnormality. The State's Article 10 screening process has, in this Court's experience, been merit based and exacting, using multiple levels of psychiatric review to select the small number of convicted sex offenders who pose the greatest risk to society. Decisions by the state in these cases have also been remarkably free of politics. Of course, it might be said, that is as it should be. In a field where the often horrific crimes of its charges could easily lead to decisions based on public fear or political expediency, however, it has been this Court's experience that the State has consistently made its decisions under the statute on the basis of psychiatric assessments. The proverbial chips have then fallen wherever they land.

Modern sex offender civil management systems, which first made their appearance in the 1990's, have always been controversial. Their proponents (including the vast majority of the New York State Legislature) have urged that such laws are essential public safety measures, a necessary protection against predatory sexual offenders who might otherwise wreak havoc upon [*23]our families and children. Their opponents have opined that such laws are nothing more than unlawful, indefinite preventive detention masquerading as something which sounds like but in reality bears little resemblance to a valid psychiatric condition.

This Court respectfully disagrees with some of the holdings the Court of Appeals has reached in Article 10 cases. But it is also obvious that the Court's rulings have rested on sound jurisprudential considerations and reflected the duty of our courts to uphold the fundamental liberty interests of everyone, even the most reviled members of our society. The Court's recent Article 10 rulings have been instructive, this Court would submit, in a number of important ways. An inference of serious difficulty in controlling behavior is qualitatively different from an inference of intent, for example, in a criminal case. If I pour a glass of water in a meeting conference room and lift it to my lips a reasonable inference can be drawn that I intend to drink water. If I commit a rape after serving a long prison term, an inference with the same certitude can certainly not be drawn with respect to my volitional control. Inferential shortcuts may be appropriate in adjudicating matters of minor import. When what is at stake is potential lifetime confinement, the standard of clear and convincing evidence demands much more.

It may be difficult or impossible to get a witness who was sexually assaulted 30 years ago to testify at an Article 10 trial. But that does not mean the State should be allowed to present unreliable evidence of such an assault as an alternative. The Article 10 statute provides for a presumption of community supervision rather than confinement. Judges must be held to that statutory presumption, no matter how difficult it might be for a court to release an offender when there will always be some chance he will commit a horrible crime again. The current state of psychology may not allow us in most cases to predict an offender's future behavior or understand the deepest recesses of his mind. But if that ability is ultimately lacking, we cannot guess at an answer nor allow vague standards and our own natural fear and revulsion to confine someone because of what we think he might do.

On January 27, 1978, the Second Circuit federal Court of Appeals issued an opinion in the first series of what were to become the criminal cases which thirty years later were to result in the Article 10 proceeding of State v. John S., supra, a case which then engendered extensive analysis from this Court and our New York Court of Appeals. The Second Circuit's decision at the time affirmed a lower court ruling which found that John S.'s previous guilty plea to one of multiple forcible rapes he had been charged with was involuntary. The Court vacated the plea and in doing so provided an extraordinarily thoughtful meditation on the intractable problems society faced in dealing with such offenders:

This case presents an all too familiar pattern of breakdown of societal, institutional, medical and legal failure adequately to cope with a person. Perhaps inability to solve an insoluble problem is a better description, since the intentions of those attempting to cope psychiatrists, psychologists, correction officers, judges and lawyers have in no case been untoward.

The John Suggses of life begin with an utterly crippling home environment. Early on they exhibit signs of unusual, bizarre and even destructive behavior, often the result of traumatic experiences. Society, with humanitarian motivation, institutionalizes them, ostensibly to protect itself or them, more probably because [*24]no alternative exists. The depth of the mental/emotional problem proves too great, the numbers of Suggses too large, the resources for positive assistance too few. When released into society, criminal behavior is probable, not merely possible. A rape, a robbery, a mugging or worse ensues.

The legal system then assumes jurisdiction over the problem. Somehow the rights of the individual must be protected, while the danger to society is removed. Questions of competency to stand trial and of criminal responsibility arise. The psychiatric experts and the judges who must rule disagree; both psychiatry and law are insufficiently advanced to attain the scientific precision necessary to resolve these questions. Yet decisions have to be made. After a period of years the case is just as insoluble as it was in the beginning. Suggs v. LaValle, 570 F.2d 1092, 1094 (2nd Cir 1978), cert. denied, 439 US 915 (1978).^[FN54]

Tragically, as noted supra, the Second Circuit's prediction about the future behavior of John S. proved prophetic. 28 days after being released from prison in 1978, while on parole, he committed a violent rape. Fortunately, as this Court outlined in its dispositional ruling ordering Mr. S.'s confinement under Article 10, there are many reasons to believe Mr. S., who is now 63 years old, might be far less dangerous if he were released today.^[FN55] Yet our ability to deal with these problems may ultimately be little better now than it was 37 years ago.

For all of those reasons, the petition in this case is dismissed and that order is stayed as reflected in the accompanying order for a two week period to allow the State to seek a stay of that order. As the Court discussed with the parties, in the event that order is stayed by the Appellate Division, this Court would attempt to find an appropriate mechanism for a dispositional hearing to proceed while the appellate process continues. State v. Michael M., supra, in this Court's view, has made it very difficult for the State to prove that respondents should be confined following a Mental Abnormality finding. Particularly in light of the Respondent's 9 ½ confinement awaiting a final resolution of this case, it would be manifestly unjust to require his confinement for a significant additional period pending appeal if he met the standards for SIST release. The Court will address that issue with the parties on the next adjourned date.