The Respondent is the subject of a petition for sex offender civil management pursuant to Article 10 of the Mental Hygiene Law ("Article 10", the Sex Offender Management and Treatment Act, "SOMTA"). On August 30, 2106 this Court conducted a hearing to consider whether there was probable cause to believe the Respondent was a sex offender requiring civil management pursuant to MHL§ 10.06 (g). The State presented a report on the Respondent written by a psychologist employed by the New York State Office of Mental Health ("OMH"), Dr. Hannah L. Geller, asked Dr. Geller a few preliminary questions and then made Dr. Geller available for cross-examination by the Respondent's counsel.^[FN1] The Respondent did not present any evidence. For the reasons outlined infra, the Court holds that there is probable cause to believe Mr. K. is a sex offender requiring civil management.^[FN2]

Dr. Geller interviewed Mr. K., interviewed several collateral contacts and reviewed extensive records. She concluded that Mr. K. is a sex offender requiring civil management under Article 10. Mr. K. is 57 years old, approximately 6', 2" tall and weighs just under 200 pounds. He has multiple criminal convictions. Mr. K. was released on parole three times and each time violated his parole, often by committing new crimes a few weeks after parole release. He has used two aliases.

Mr. K. was convicted of Assault in the Third Degree and Sexual Abuse in the Third Degree for a crime which occurred in 1982 after he came up behind a woman and squeezed her buttocks. In 1983 he was convicted of Rape in the Second Degree. In that assault, he followed a 13 year old female stranger into an elevator, forced her to a roof, threatened the victim with a knife, forced her to smoke marijuana and "sodomized" her, although Dr. Geller's report notes it is not clear precisely what kind of sexual assault this encompassed. The victim attended special education classes for learning problems at the time. Mr. K. was sentenced to 18 to 54 months incarceration for that crime. He was picked up by the police on suspicion of rape a little more than three months after his parole release but then released again when the victim could not identify him.

In 1987 he was convicted of Attempted Robbery in the Third Degree and sentenced to 18 months to 3 years incarceration. In that case, it was alleged that he followed a 17 year old stranger victim into an elevator, grabbed her by the neck, threatened her and attempted to rob her and drag her to the roof. Mr. K. fled when an apartment door opened during the assault and was found in possession of a knife and marijuana.

The offenses which form the basis for this petition (the "instant offenses") arose from convictions regarding four sexual assault charges in 1999 against four victims which commenced two weeks after his parole release from his earlier attempted robbery conviction. The instant offenses all occurred within less than a two month period. In the first incident, Mr. K. was alleged to have approached a stranger victim in an elevator, pulled her by the neck, attempted to take her to the roof and when that failed took her to an incinerator room and raped her. He was convicted of Rape in the First Degree and other charges for this crime.

In the second crime a week later, he followed a 15 year old girl to an elevator, cut her face with a razor and raped and sodomized her on a roof. Mr. K. admitted to giving the victim marijuana laced with angel dust prior to the assault, and characterized the assault as consensual. Mr. K. was convicted of Rape in the First Degree and related charges for that crime. In the third incident, two weeks later, he entered an elevator with a 13 year-old stranger, placed a box cutter to her neck, cut her and dragged her to an apartment landing. As he began to sexually assault the [*2]victim, a person entered the stairwell and Mr. K. fled. He was convicted of various sexual offenses for that crime. Finally, three weeks later, Mr. K. placed a knife to the throat of a 20 year old victim in an elevator and pulled her body to his but was apprehended after a witness came upon the scene. He was convicted of Burglary in the First Degree and Attempted Rape in the First Degree with respect to that assault.

Dr. Geller's report notes that Mr. K. was convicted of a total of 24 felony and 20 misdemeanor counts with respect to these 1999 offenses. She notes he received a sentence of "17-1-18 to 20 years" incarceration with five years of post-release supervision for his 1999 crimes (R-5). This sentence recitation is obviously incorrect; likely another result of the numerous typographical errors in Dr. Geller's report.

Dr. Geller interviewed Mr. K. for about four hours by video-teleconference while he was confined at the Gowanda Correctional Facility. She reported that Mr. K's affect was normal during the interview, although there were some signs of "psychomotor retardation", and said Mr. K. appeared sad and reported depression and anxiety (R-5). She opined the anxiety was situational. Dr. Geller opined that Mr. K. was not a reliable reporter because his statements during the interview sometimes contradicted police reports and his own prior statements. She said his long-term memory, orientation and simply auditory attention appeared normal but that his cognitive functioning was below normal limits and that he had difficulty with judgment, abstract reasoning, the ability to explain common English words and mental flexibility. She reported that Mr. K.'s "presentation is consistent with below average intellectual ability or cognitive decline" (R-6).

Mr. K. was raised by his mother and step-father in Brooklyn and began getting into trouble with drugs, shoplifting and indiscriminate sexual activity around the ages of 13 and 14. He is currently in contact with one brother among his nine siblings. Mr. K. attended special education classes as a child and dropped out of school in the 11th grade. He has held various jobs including being a messenger and kitchen helper and has also committed robberies and burglaries. Mr. K. has previously been diagnosed with Adjustment Disorder with Anxiety and in 1986 was diagnosed with "Mental Retardation with Behavioral Affects", "Residual Adult Attention Deficit Disorder" and Mixed Organic Brain Syndrome" (R-8).

He started drinking alcohol at age 13-14 and using phencyclidine ("PCP", "angel dust" or "dust") at age 15-16. All of Mr. K.'s sexual offenses occurred while he was using drugs or alcohol and substance abuse has had a negative impact on both Mr. K.'s intimate relationships and ability to hold a job. Dr. Geller opined, however, that Mr. K. had little insight into the problems arising from his substance abuse. She cited the negative assessment of a drug abuse counselor who had worked with him in prison who said Mr. K. had insufficient insight, was defensive and lacked coping skills and social supports which could help him avoid substance abuse.

Mr. K. says he is heterosexual, has never married or had children and engaged in various intimate relationships with partners he has never been faithful to. Mr. K. has admitted to being aroused to non-consenting sexual partners but denied during his interview that he had fantasies about non-consensual partners now. He has engaged in sex with prostitutes, used pornography and visited strip clubs. Although a number of his victims were teenagers, he asserted that [*3]choosing such victims was accidental.

Mr. K. completed an eighteen month sex offender treatment program ("SOTP") at the Gowarda correctional facility in May of 2016. However, counselors from the program said Mr. K.'s participation in treatment was problematic in many respects including blaming victims, minimal blame acceptance and the inability to identify and solve life problems. Dr. Geller acknowledged, however, that Mr. K.'s difficulty explaining things which she found in her interview might have also contributed to his being unable to explain things sufficiently during his sex offender treatment. Mr. K. also had difficulty completing written assignments. Sex offender treatment typically occurs only in groups and does not include individual counseling. Dr. Geller acknowledged that Mr. K. might have received some minimal benefit from sex offender treatment.

Mr. K has reported, however, that he now understands the harm his offenses have caused and regrets it. He said his offenses were previously triggered by watching pornography and abusing substances but said those things would not be re-offense triggers for him today. One counselor described Mr. K. as being very defensive and inflexible and said Mr. K. did not trust his counselors. Dr. Geller said Mr. K.'s completion of sex offender treatment was "nominal at best and he did not benefit from his treatment" (R-11). During his most recent incarceration, Mr. K. had 8 "Tier 2" disciplinary infractions (infractions of moderate severity under the Department of Corrections and Community Supervision's three-tiered disciplinary assessment system) all for non-violent\non-sexual violations. Mr. K. also participated in a substance abuse treatment program in prison.

During his interview with Dr. Geller, Mr. K. did talk about some of his sexual offenses and admitted to extensive criminal sexual behavior. He said he did not recall some information and some of his reports differed from the information in his rap sheet. Dr. Geller interviewed three staff members at the Gowanda Correctional Facility. They all "voiced their opinion that Mr. K. was a danger to society because he possessed very limited insight into his offending cycle and role of substance abuse. They found that he minimized his crimes, often denying details that were present in the records, [SIC] deceitful, unwilling to change, that he was particularly defensive when his maladaptive behaviors or cognitive distortions were confronted" (R-13). Dr. Geller interviewed the Respondent's brother, who expressed support for him but did not appear to be familiar with important details of Mr. K.'s history. He said that their father had "severely abused the Respondent physically and emotionally" but that Mr. K. had never received treatment for this abuse (R-13).

Dr. Geller scored the Respondent with a "7" on the Static-99R actuarial risk assessment instrument indicating he was at a high risk to re-offend. Depending upon which of the three offender comparison samples are used, offenders with this score have sexually re-offended at a rate of 27.2% over five years, 30.7% over five years or 42.8% over ten years respectively.

Dr. Geller opined that Mr. K. has multiple dynamic risk factors indicating an increased risk to re-offend. He has not complied with supervision as evidenced by his parole revocations often through his commission of new crimes shortly after release. He has general impulsivity and problems with self-regulation and an antisocial orientation including "arrogance and defiance" and a lack of remorse. He has said he plans to satisfy his sexual urges upon release by [*4]seeing prostitutes which Dr. Geller opined is problematic both because it is illegal and would place him back into the same lifestyle he had when he committed his crimes.

Mr. R. has psychopathy, which Dr. Geller said "is a personality disorder, characterized by persistent antisocial behavior, diminished abilities for remorse and empathy, and disinhibited behavior" (R-16). She scored Mr. K. on the "Hare Psychopathy Checklist Revised 2nd Edition (the "PCLR") and determined he had a score of 27.4, which she characterized as indicating a high level of psychopathy. She acknowledged that some clinicians use a score of 30 as the cut-off for psychopathy. Dr. Geller agreed that PCLR scores have sometimes been shown to have problems with inter-rater reliability (the degree to which two evaluators with the same information reach the same PCLR score). She also agreed the scoring of the instrument can be subject to the "allegiance effect" (the tendency of an evaluator scoring the instrument to be influenced by which side of an adversarial proceeding the evaluator is working for). She said that psychopathy has been positively correlated with sex offender recidivism particularly when accompanied by a paraphilia diagnosis or positive PPG assessment.^[FN4]

Dr. Geller did not diagnose Mr. K. with a paraphilic (sexual) disorder but found indicia suggesting deviant sexual interests including his professed arousal to non-consenting partners, the suggestion of sadistic traits through his unnecessary use of a knife to subdue his victims, a belief at one time that he could "make his victims like being raped" (R-16), his selection of victims in the age range of 13-15 years old, indicating a possible hebephilic sexual orientation (a sexual preference for pubescent children) and an interest in following his victims. She also opined that Mr. K. had driven away his intimate partners in part because he wanted them to engage in a variety of sexual practices which they did not want to participate in, such as anal sex.

She opined that Mr. K. had negative social influences in his life and that it was unknown whether he was sexually preoccupied. Mr. K. has cognitive distortions and attitudes supportive of offending including a lack of empathy for his victims, his assertion that his sex offenses were committed because he was "locked in" to an offense cycle he could not stop (R-17), blaming his victims and minimizing his offenses. Mr. K. has lacked intimate relationships; some of his paramours have been deterred from relationships because they would not agree to sexually experiment with Mr. K. or use drugs. Mr. K. has said it is normal for people to act first and then think about their actions later.

Dr. Geller testified that Mr. K.'s age (57) was a protective factor and that his relationship with his brother might be protective, although his brother appeared to have little knowledge of Mr. K.'s history. She opined that the completion of sex offender treatment was not a protective factor for Mr. K. since he did not seem to derive much benefit from it. Mr. K. has "been suffering with low self-esteem and powerlessness for years" (R-25).

Dr. Geller diagnosed Mr. K. with Antisocial Personality Disorder ("ASPD"). She said this disorder is characterized, among other things, by "a pervasive pattern of disregard for and violation of the rights of others occurring since age 15 years" as indicated by three or more of seven specific personality characteristics. She said Mr. K. met all of the seven criteria which she outlined as a failure to conform to social norms with respect to lawful behavior, deceit, impulsivity, irritability and aggressiveness, a reckless disregard for the safety of himself or others, consistent irresponsibility and a lack of remorse.

She also assigned Mr. K. with the "Condition of Psychopathy" which she described as follows:

DSM-5 clarifies that a distinct variant of [ASPD] often termed Psychopathy is marked by a lack of anxiety or fear and by a bold interpersonal style that may mask maladaptive behaviors (e.g. fraudulence). This psychopathic variant is characterized by low levels of anxiousness (Negative Affectivity domain) and withdrawal (Detachment domain) and high levels of attention seeking (Antagonism domain). High attention seeking and low withdrawal capture the social potency (assertive/dominant) component of psychopathy, whereas low anxiousness captures the stress immunity (emotional stability/resilience) component. Psychopathy is a set of personality traits that affect an individual's behavioral, emotional and interpersonal functioning. Many of the traits of Psychopathy overlap with diagnostic criteria for ASPD. However, Psychopathy is often viewed as a more extreme, pervasive, and multifaceted version of ASPD, and is distinguished from ASPD by the additional features described above. Individuals, like Mr. K., who meet criteria for both ASPD and Psychopathy, unlike those with ASPD alone, are found to be more violent, demonstrate more callousness and disregard for the rights of others, and engage in ongoing efforts to deceive others for personal gain or pleasure. (R-21).^[FN5]

Dr. Geller also diagnosed Mr. K. with Phencyclidine Use Disorder, Cannabis Use Disorder and Alcohol Use Disorder all Severe, in Sustained Remission in a Controlled Environment. She said the substances the Respondent has abused have impaired his judgment and "make him bolder, distort reality, and increase sexual urge" (R-26). She opined that the Respondent's diagnoses in combination met the criteria for a Mental Abnormality in that Mr. K. was predisposed to commit and had serious difficulty in controlling his behavior with respect to the commission of sex offenses.^[FN6] She opined that Mr. K.'s "own statements seem to explicitly [*6]indicate that he is unable to control his urge to commit a sex offense" and that his offenses were not premeditated but were opportunistic in nature (R-26).

There are two requirements for a person to be a "sex offender requiring civil management". The first is that a respondent suffer from a Mental Abnormality. That was the focus of the hearing. A respondent, however, must also be a "Detained Sex Offender" under the statute. MHL §§ 10.03 (g); (q). There is no dispute in this case that Mr. K. was serving a sentence for a sex offense as defined by Article 10 at the time the instant petition was filed and that he is thus a Detained Sex Offender. See State v. Rashid, 16 NY3d 1 (2010).

During argument on the instant motion, the Respondent asserted that the petition must be dismissed because the combined diagnoses of ASPD, psychopathy and phencyclidine, alcohol and cannabis dependence in combination are insufficient diagnostic predicates under Article 10. This Court does not agree with that assertion and the bulk of the remainder of this decision outlines why. Before proceeding to that discussion, however, the Court will outline why it has concluded there is probable cause to believe the Respondent meets the remaining criteria for having a Mental Abnormality under Article 10.

The Court found the testimony of Dr. Geller to be credible in almost all respects, although it advises Dr. Geller and OMH to proofread her reports. There is no excuse for numerous typographical errors to be present in a report which will be relied upon to deprive another human being of his liberty, particularly with respect to important information like the date on which a sworn statement was made or the length of a respondent's prison sentences.

Dr. Geller's report and testimony amply demonstrated that the Respondent is predisposed to commit and has serious difficulty in controlling his behavior with respect to committing sex crimes. Mr. K.'s sexual offense history is horrific. It has featured the brutal sexual assault, rape and sodomy of numerous children and adults, all of whom were strangers to him. It has also evidenced a lack of control and impulsiveness. Mr. K.'s assaults have followed prison terms and been committed while on parole. Criminal justice sanctions and supervision have obviously not deterred him. His crimes have occurred in close proximity to both his prison releases and other sexual assaults. His sexual offenses have spanned most of his adult life and were only interrupted when he was imprisoned for the instant offenses. Mr. K. himself has acknowledged that he has a lack of control over his sexual offending. He apparently believes it is perfectly [*7]normal and acceptable to act first and think later. His substance abuse has obviously also played an integral role in his offense cycle and contributed to his offending both by being a disinhibitor and a method to partially incapacitate his victims, who were often children.

Mr. K. amply demonstrates the criteria for ASPD. He has little regard for the rights of others and has exhibited defensiveness and cognitive distortions related to his offending. Although he has not been diagnosed with a paraphilia, he has evidenced deviant sexual interests including an interest in engaging in sexual relations with non-consenting partners and pubescent children. His completion of sex offender treatment is a positive factor but it is not clear he has derived any significant benefit from it. The fact that he is 57 years old is also a significant protective factor. But it does not outweigh the dynamic risk factors which Dr. Geller outlined in her report. Mr. K. has been demonstrated to be at a high risk to sexually re-offend under the Static 99R. The Court takes judicial notice that this is the most widely used and generally accepted sex offender actuarial risk assessment instrument in the world today. Mr. K. apparently has no current viable plan to avoid re-offending were he to be released into the community with only regular parole supervision. He would also have limited social support were he released without Article 10 supervision.

This Court has written extensively about the confusion and shifting legal standards applicable to a number of fundamental Article 10 issues. One of those arises here. While it is clear that a diagnosis of ASPD alone is an insufficient basis on which to find that a "condition, disease or disorder" exists under Article 10, what is necessary in addition to ASPD to make a Respondent's diagnoses sufficient has been the subject of great uncertainty. Tracing the history of the relevant cases on the subject, however, convinces this Court that, as of today, the diagnoses here would be found by the First Department and\or the Court of Appeals to be legally sufficient. That, along with the other findings the Court has made here compel the conclusion that probable cause exists to find the Respondent is a sex offender requiring civil management. To understand the legal landscape three decisions are particularly important: State v. Donald DD. and Kenneth T. 24 NY3d 174 (2014) (the Donald DD. portion of the decision); State v. Jerome A. (Anonymous), 137 AD3d 557 (1st Dept 2016) and State v. Dennis K., 27 NY3d 718 (2016).

In Donald DD.,the Court's four judge majority held "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.^[FN8] The Court noted that the United States Supreme Court in the second of its two [*8]landmark decisions on sex offender civil management, Kansas v. Crane, 534 US 407, 413 (2002), held that as a matter of substantive due-process, sex offender civil management statutes "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." State v. Donald DD., supra, 24 NY3d at 189 (emphasis added in Donald DD.). The Donald DD. majority said the evidence during the trial indicated that 40- 80% of persons who have been imprisoned could be diagnosed with ASPD. These statistics, the Court opined, indicated a diagnosis of ASPD alone was insufficient as a matter of constitutional due-process to distinguish sex offenders subject to civil management from ordinary recidivists. "ASPD", the Court asserted, "means little more than a deep-seated tendency to commit crimes". 24 NY3d at 190 quoting State v. Shannon S., 20 NY3d at 110 [Smith J., dissenting].

The Donald DD. Court also addressed the psychopathy issue in a footnote, saying that in addition to their other diagnoses, both of the State's experts "opined that Donald DD. suffered from an extreme form of ASPD known as psychopathy. However, they did not testify that this finding materially affected their conclusions regarding Donald DD.'s mental abnormality under Article 10." (n. 3).

This Court, as it has outlined in a number of its prior decisions, respectfully disagrees with the reasoning process the Donald DD. majority used to determine that ASPD alone cannot serve as a Mental Abnormality predicate, although this Court believes there are other valid arguments which might be advanced to support the same conclusion.^[FN9] Simply because most prison inmates can be diagnosed with ASPD does not mean most prison inmates could also be subject to Article 10 because of such a diagnosis. As this Court outlined in more detail in its decision in State v. Michael R., the vast majority of convicted offenders who have been diagnosed with ASPD are not even statutorily eligible for civil management. Of those who are eligible a much smaller fraction prior to Donald DD. were subject to Article 10 and a still smaller percentage had been found to have a Mental Abnormality. Allowing ASPD alone to serve as a Mental Abnormality predicate would thus not expose up to 80% of prison inmates to SOMTA. This Court estimated in Michael R. that such a permissible sole diagnosis had served to subject less than 1/10 of 1% of the prison population to sex offender civil management. 2014 NY SlipOp [*9]at 17. In Donald DD., both of the State's experts estimated that 93% of prison inmates diagnosed with ASPD are not sex offenders. 24 NY3d at 183-184. Only a small percentage of sex offenders, however, ever become subject to Article 10.

The DSM-5 also recognizes that although ASPD is not a sexual disorder, it can be manifested through sexual behaviors. According to the DSM-5: "These individuals [those with ASPD] may also be irresponsible and exploitive in their sexual relationships. They may have a history of many sexual partners and may never have sustained a monogamous relationship".^[FN10]

Judge Graffeo's three judge dissenting opinion in Donald DD. asserted that "[t]he fundamental flaw [in the majority's reasoning] is that it equates a congenital or acquired condition, disease or disorder' with a mental abnormality,' thereby requiring that the predicate disorder itself inherently include the additional predisposition and impulse control elements of [Article 10]. (citation to majority opinion omitted). This interpretation directly conflicts with the language of the statute . . ." State v. Donald DD., supra, 24 NY3d at 194 [Graffeo, J. dissenting]. It is also clear, in this Court's view, that as a factual matter ASPD alone can predispose a small minority of offenders with that diagnosis to commit sex offenses and result in serious difficulty in controlling sexually offending behavior. In eight years of presiding over Article 10 cases, this Court cannot recall any expert ever expressing a contrary view although the Donald DD. majority appeared to characterize the testimony of the Respondent's expert in that case, Dr. Plaud, as standing for the proposition that it is simply impossible for ASPD alone to result in a valid Mental Abnormality finding. See 24 NY3d at 184.

In addition to its basic holding, as discussed infra, Donald DD. was initially understood by multiple courts to require that a respondent's Article 10 diagnoses include a sexual disorder. The majority held:

Its use [that is, the use of ASPD as a predicate disorder under Article 10] in civil confinement proceedings, as the single diagnosis underlying a finding of mental abnormality as defined by Mental Hygiene Law article 10, proves no sexual abnormality. It therefore cannot be the sole diagnosis that grounds such a finding. 24 NY at 190.

The majority also favorably cited arguments by the Respondent that ASPD was not a valid Article 10 predicate because it was not a sexual disorder:

We believe that an ASPD diagnosis has so little relevance to the controlling legal criteria of [Article 10] that it cannot be relied upon to show mental abnormality . . . As Donald DD.'s counsel expressed the objection, ASPD is "not a sexual disorder". Id.

Dr. Plaud, testifying for Donald DD., opined that while ASPD can act "in combination with . . . a diagnosable sexual disorder" to produce a potent abnormal condition, it cannot "in and of itself. . . predict sexual impulse control". Id. (emphasis added).

In the wake of Donald DD. courts struggled with the question of what disorders, in addition to ASPD alone, would make a respondent's diagnostic predicates valid. A recurring [*10]question was whether ASPD with psychopathy, rather than ASPD alone, would be sufficient. Courts deciding that issue did not reach uniform conclusions but, as this Court outlined in its decision in State v. Jerome A., 48 Misc 3d 1229 (A), 2015 NY SlipOp 51303 (U) (New York County Supreme Court 2015), reversed, State v. Jerome A. (Anonymous), supra, the weight of trial court authority following Donald DD had concluded that ASPD along with psychopathy were invalid Mental Abnormality predicates. Those decisions relied both on the fact that Donald DD. appeared to hold that respondents must be diagnosed with sexual disorders to be subject to Article 10 (and psychopathy was not one) and the Donald DD. Court's assertion that psychopathy was merely an "extreme form of ASPD" (and thus, like ASPD, could not be a sole Mental Abnormality predicate).^[FN11]

In State v. Jerome A., supra, this Court found the testimony of the State's expert, Dr. Charder, that the Respondent suffered from ASPD and psychopathy did not provide probable cause to believe the Respondent was a sex offender requiring civil management and ordered the petition dismissed. This Court's decision was based on the fact that: (i) most trial courts had reached the same conclusion; (ii) the Donald DD. Court found that psychopathy was an "extreme form of ASPD" (n. 6); (iii) the Donald DD. Court dismissed the petition in that case, even though the Respondent was also diagnosed with psychopathy; (iv) Donald DD. held that ASPD "proves no sexual abnormality. It therefore cannot be the sole diagnosis that grounds . . . a [Mental Abnormality] finding" (24 NY3d at 190) [and psychopathy is also not a "sexual abnormality"]; (v) the DSM-5 describes ASPD and psychopathy as synonymous ("[ASPD] has also been referred to as psychopathy'") (DSM-5, p. 659); (vi) the State's expert in Jerome A. agreed that under the DSM-5 "psychopathy and ASPD are essentially the same thing". Id.; (vii) the State's expert in Jerome A. described her conclusions regarding psychopathy as tentative;^[FN12] (viii) the State's expert in Jerome A. testified that the Respondent's psychopathy provided him with greater volitional control than if he had ASPD alone ^[FN13] , and (ix) the Court did not find the State expert psychologist's assertions about psychopathy derived from a literature review of [*11]"brain scan" evidence credible in other respects.^[FN14]

The First Department, in State v. Jerome A. (Anonymous) reached the opposite conclusion. They pointed out that the State's expert "offered extensive testimony regarding the distinctions between ASPD and psychopathy" and asserted that the Donald DD. Court "did not state that a diagnosis of ASPD with psychopathy is insufficient to support a finding of mental abnormality" (citing Donald DD). The First Department also faulted this court's dismissal of the petition at the "early juncture" of a probable cause hearing saying: "In article 10 proceedings, issues concerning the viability and reliability of the respondent's diagnosis are properly reserved for resolution by the jury unless the respondent's evidence is deficient" (citation omitted).

In State v. Dennis K., supra, the Court considered whether the diagnostic predicates supporting a Mental Abnormality determination were legally sufficient in three cases in which the Respondent was diagnosed with both ASPD and additional conditions. The first respondent, Dennis K., was diagnosed by the State's expert with ASPD and Paraphilia Not Otherwise Specified ("Paraphilia NOS"). The NOS diagnosis was accompanied by the specifier "Non-Consent". The Court said: "the term non-consent' refers to an unwilling participant who either does not, or is unable to give, consent". 27 NY3d at 731. The State's expert opined with respect to the NOS diagnosis that although the Respondent had said he had access to consenting sexual partners, he still committed rapes and that "power, control, violence [have] all merged with his sexual need". Id., at 734, quoting testimony of State expert Dr. Stuart Kirshner.

The Court held the evidence supporting the judgment was legally sufficient since the Respondent had not only ASPD but also Paraphilia NOS Non-Consent. It said that it would not reach the question of whether the Non-Consent diagnosis was legitimate because the Respondent had not mounted a Frye challenge to it.^[FN15]

The second respondent, Anthony N., was diagnosed with ASPD by one State expert and Borderline Personality Disorder ("BPD") by two state experts. The Court also noted in a footnote that one state expert diagnosed the Respondent with "alcohol abuse and polysubstance [*12]dependence" (n. 5). One state expert testified that the BPD diagnosis led directly to sexual offending by virtue of the Respondent's "desperate need" to establish a connection to his victims. Id. at 470, quoting testimony of State expert Dr. John Thomassen. The Court rejected the argument that a Mental Abnormality predicate had to include a sexual diagnosis:

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. (citation omitted).^[FN16]

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". Id., at 743.

The Court also rejected the notion that ASPD and OPD were analogous Mental Abnormality predicates;

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' and that such a general tendency does not amount to a predisposition "to the commission of conduct constituting a sex offense". 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 [BPD] . . . Id., at 743-744 (internal citations omitted).

The Court also noted that the evidence indicated the Respondent's BPD manifested itself as a need to have a connection to his victims which was expressed by his having sex with them against their will and that there was thus "proof of a strong sexual component to respondent's [BPD] diagnosis". Id. (internal quotation omitted). The Court cited in a footnote portions of the DSM-5's diagnostic criteria for BPD as including impulsivity, including impulsivity involving sex (n. 3).

The final respondent in the Dennis K. case, Richard TT., was diagnosed by the State's expert, Dr. Peterson, with ASPD, BPD and psychopathy. She testified that these conditions in combination established the requisite predisposition and serious control difficulty requirements. The Court noted in a footnote that Dr. Peterson's "other diagnoses included cannabis and alcohol abuse" (n. 10). Regarding psychopathy, the Court said:

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 [*13]impulsivity, and they are prone to taking risks. 27 NY3d at 746-747 (quotation citation not provided in decision).

The Court said that under the PCLR, a score of 30 or more indicated that psychopathy was "strongly present" and that the Respondent had a score above 30 on the test. Explaining why the three diagnoses in Richard TT.'s case were legally sufficient Article 10 predicates the Court said:

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 condition, disease or disorder". Here, Dr. Peterson diagnosed respondent with three disorders — all of which she claims create a "personality structure" that disregards the wants and needs of other people. Id., at 750. . . 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, [met the requirements for a Mental Abnormality]. Id. at 751-752.^[FN17]

Judge Rivera dissented in the Dennis K. Court's holdings regarding Anthony N. and Richard TT. She opined that Donald DD. had imposed a requirement that Article 10 predicates had to be sexual disorders and said there was no basis to overrule Donald DD. She pointed out that some studies had suggested that the prevalence of BPD in the prison population was 25-50%, raising the same issues the Court found dispositive in rejecting ASPD as a predicate in Donald DD.^[FN18]

The Court's decision here about whether the combined diagnoses of ASPD, psychopathy and three substance use disorders are sufficient Article 10 predicates is a simple one by virtue of the First Department's holding in State v. Jerome A., (Anonymous). Although the First Department in that brief decision did not provide a detailed explanation of their reasoning, they clearly found the combined diagnoses of ASPD and psychopathy sufficient to establish probable cause in that case. See also, State v. Richard L. (Anonymous) 2016 NY SlipOp 06745 (1st Dept 2016) (reversing trial court dismissal of Article 10 petition based on Donald DD. prior to probable cause hearing where respondent had ASPD, psychopathy "substance-use disorders" and "sexual preoccupation" saying evidence was "facially valid" and "not patently deficient".)

The continuing question of which diagnoses, other than ASPD alone, might be sufficient Article 10 predicates in cases like this will doubtless, however, be subject to further case law development and the First Department's decision in Jerome A. (Anonymous) predated the Court of Appeals decision in Dennis K. The Court thus believes it is useful to analyze this issue further.

The Court of Appeals has now explained why ASPD alone is an invalid Article 10 predicate in the Shannon S. dissent and the Donald DD. and Dennis K. majority opinions. Certain points are now clear. It is clear that an ASPD diagnosis alone is an insufficient Article 10 predicate. After Dennis K., it is clear that an Article 10 diagnosis need not include a sexual disorder. It is also clear that the specific combinations of disorders which were the subject of the Dennis K. decision are legally sufficient. Beyond that, the terrain is murkier. To understand whether ASPD plus "x" might be legally sufficient, one must understand why ASPD is not a valid predicate and then apply that reasoning process to the other conditions which a respondent has been assigned. Of course, the State must also demonstrate in an Article 10 case that a respondent's diagnoses resulted in a predisposition to commit and serious difficulty in controlling behavior with respect to committing sex offenses. A number of related underlying principles can be gleaned from the Court of Appeals case law. Applying those principles to other disorders, however, is not easy.

Certain passages of Donald DD. and Dennis K. appear to assert that ASPD is a uniquely illegitimate Article 10 predicate. This principle is expressed in the repeated assertion that ASPD is "little more than a deep-seated tendency to commit crimes" (or the even more categorical assertion "that an ASPD diagnosis means nothing more than a person has a tendency to commit crimes"^[FN19] ) and therefore cannot alone support a Mental Abnormality finding. That simple proposition might lead to the reductionist conclusion that any diagnosis, along with ASPD, might be legally sufficient under Donald DD. Thus, ASPD with some cannabis abuse might be sufficient. ASPD with some alcohol abuse might be sufficient. ASPD with depression or anxiety might be sufficient. Such a construction would swallow the "ASPD alone" rule in the vast majority or all cases.

Whether the Court of Appeals has intended its repeated assertions that ASPD is "little more than a deep-seated tendency to commit crimes" as hyperbole is unclear. But ASPD is obviously much more than that. It is unquestionably a legitimate psychiatric diagnosis, unlike the NOS paraphilias which have been routinely found sufficient in multiple appellate rulings but are now being repeatedly rejected after trial court Frye hearings.^[FN20] There are large numbers of prison inmates who cannot be diagnosed with ASPD. ASPD must be supported by evidence of a conduct disorder before the age of 15. Without meeting that criterion, an offender cannot be [*14]diagnosed with the condition no matter how many crimes he has committed. The disorder can and certainly often is characterized by criminal behavior. But it can also be manifested by other irresponsible actions including an absence of steady employment, financial irresponsibility or abusive interpersonal relationships.^[FN21] As the Court of Appeals quoted one of the State's experts Dr. Christopher Kunkle in Donald DD., "some sex offenders have antisocial personality disorder, some don't. Some with antisocial personality disorder commit sex offenses and some don't". 24 NY3d at 183.

The notion that ASPD is not a legitimate psychiatric diagnosis because it is "little more than a deep-seated tendency to commit crimes" could also be applied, in a more limited manner, to other Article 10 diagnoses which are unquestionably legitimate. An offender with pedophilic disorder, for example, might be validly described as having little more than a deep-seated tendency to commit sex crimes against children. An offender with the recognized DSM paraphilia "Frotteuristic Disorder" (a deviant sexual arousal to touching or rubbing against non-consenting persons) could be validly described as having little more than a deep-seated tendency to commit sexual abuse or forcible touching crimes.^[FN22]

The three Shannon S. dissenters who joined the majority in Donald DD. opined that the Paraphilia NOS hebephilia diagnosis in Shannon S. was not a legitimate Article 10 predicate because "paraphilia NOS is essentially a tendency to commit rape, and hebephilia a tendency to commit statutory rape" and criticized the "fiction that he [the Respondent] has some sort of mental condition other than a tendency to commit the crimes for which he was convicted". 20 NY3d at 111-112 [Smith, J., dissenting]. It is thus far from clear how the "little more than a tendency to commit crimes" rationale might or might not be applicable to disorders other than ASPD.

The most apparent rationale for why ASPD is different, harkening back to Donald DD., is that it is condition a large portion of the prison population has. Thus, while it has been estimated that 40-80% of prisoners can be diagnosed with ASPD, a presumably smaller number might be diagnosed with other disorders. But such numerical comparisons among large prison populations, even presuming they were available for a particular disorder, would seem a poor basis on which to rest a decision about whether an individual could or could not be subject to lifetime confinement. It is difficult to understand why due-process would preclude lifetime confinement for conditions which, for example, 65% of prison inmates had but allow it for disorders which 40% of prisoners had.

In Dennis K., the Court found that ASPD plus BPD were sufficient Mental Abnormality predicates. Judge Rivera's dissent, however, pointed out that studies have suggested that 25-50% of prison inmates can be diagnosed with BPD. Moreover, as discussed infra, it would appear that the percentage of the prison population who could be diagnosed with some kind of substance or alcohol use disorder might equal or exceed the percentage who could be diagnosed with ASPD.

The difference between ASPD alone and ASPD plus other disorders might be that when ASPD is combined with additional disorders, the combined diagnoses might lead to more significant predisposition and inability to control problems than ASPD alone. But the degree of severity of a disorder or the harm which might be caused by it were not the bases on which the Donald DD. Court found that ASPD alone was an invalid Mental Abnormality predicate. As this Court and others have outlined before, offenders who have been diagnosed with ASPD alone have committed repeated horrific sex crimes.^[FN23]

Certain passages in Dennis K. might be read to suggest that it is the number of a respondent's diagnoses which determine whether they are legally sufficient. See holding regarding Respondent Richard TT., 27 NY3d at 749-753 cited supra ("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 condition, disease or disorder' . . . Here, Dr. Peterson diagnosed respondent with three disorders . . . In short, Dr. Peterson did not simply rely on one diagnosis . . She considered a number of particular disorders"). A respondent's fundamental constitutional right to liberty under Article 10, however, cannot be determined by counting how many diagnostic labels may be assigned to him. The Dennis K., Court surely did not mean to suggest otherwise.^[FN24]

A final complication is that merely assigning some moniker to a particular trait does not necessarily mean it constitutes an independent condition, disease or disorder under Article 10. An offender might be described, for example, as "sexually preoccupied", "impulsive" "sadistic" or "sexually deviant". The First Department has recognized, however, (correctly in this Court's view) that an independent condition, disease or disorder under Article 10 and Donald DD. will not exist merely because an offender demonstrates particular sexually offending behaviors. State v. Gen C., 128 AD3d 467 (1st Dept 2015). In that case the Court held that "hypersexuality/sexual preoccupation" did not constitute an independent condition under Article 10 which would be sufficient, with ASPD, to demonstrate the Respondent had a Mental Abnormality.

The instant case implicates what have and will continue to be two difficult issues regarding ASPD and additional diagnoses: substance use disorders and psychopathy.

In this Court's experience, it is the rare Article 10 offender who has not been diagnosed with some kind of substance use or alcohol dependency, often in remission in a controlled environment. Such dependencies, moreover, are widespread in the prison population and have no necessary relationship to sexual offending.^[FN25] It is difficult to see how the rationale that ASPD is an invalid Article 10 predicate because of its prevalence in the prison population would also not compel the same conclusion with respect to many substance or alcohol use disorders for the same reason.

It is notable that the Dennis K. Court described the multiple substance use disorders which had been diagnosed for Anthony N. and Richard TT. only in footnotes. That is, in a detailed discussion of the why BPD and ASPD together were valid Article 10 predicates, the respondents' multiple substance use disorders barely merited mention. That might suggest the Court of Appeals would view a case of ASPD plus substance abuse as equivalent to a diagnosis of ASPD alone, but it is impossible to know.

Whatever issues might arise in other cases, however, in the instant matter Dr. Geller's report and testimony provided significant evidence the Respondent's substance use disorders were integral to his sexual offending. Mr. K. has not only used cannabis, alcohol and PCP throughout his life and during his offenses. He also provided or forced his victims to use those substances during his sexual assaults. Even if ASPD plus substance abuse might not be legally sufficient Article 10 predicates in other cases, therefore, the disorders in the instant case might be sufficient because of the close relationship between Mr. K.'s sexual offending and his substance abuse dependencies.

Psychopathy has been described and defined in a myriad of obviously inconsistent ways by various authorities. Under the DSM-5, it is a synonym of ASPD. Under the “alternative” model for personality disorders in the DSM-5, it is a “distinct variant” of ASPD.  The Court of Appeals has repeatedly described it is an extreme form of ASPD. During argument on the instant motion, the State's attorney said psychopathy was distinguished from ASPD because it was measured by the PCLR and PCLR scores were correlated with "brain waves or brain patterns" (referencing Dr. Charder's testimony in State v. Jerome A., supra.). He claimed this constituted an "organic difference" in the two conditions and said the distinction between psychopathy and ASPD was "straightforward" and "self-evident".^[FN26]

In Jerome A., the State's expert, Dr. Charder, (who was not a medical doctor) said a person with ASPD and psychopathy could be distinguished from a person with ASPD alone through brain scans. She testified that a person with ASPD and psychopathy had greater [*16]volitional control than a person with ASPD alone. In the instant case, Dr. Geller said no such conclusion could be drawn. Dr. Geller in her report described psychopathy as an apparently full-fledged "personality disorder". In her testimony, however, she said it was not a diagnosis but a "condition".

Dr. Geller did, however, offer some specific information in her report about how a diagnosis of ASPD plus psychopathy differed from a diagnosis of ASPD alone. A person with ASPD plus psychopathy (rather than ASPD alone), she said, evidences a lack of anxiety or fear, a "bold interpersonal style" withdrawal and attention seeking behavior. She described this combination of conditions, as noted supra, "as a more extreme, pervasive and multifaceted version of ASPD" (R-21).

In explaining her view that Mr. K. had a Mental Abnormality, on the other hand, Dr. Geller repeatedly referred to the characteristics of a person who has "ASPD and/or Psychopathy" as if the two terms were synonymous (R-26). The Court of Appeals, of course, has repeatedly characterized ASPD as "little more than a deep-seated tendency to commit crimes". The Dennis K. Court described persons who have psychopathy as "engaging in antisocial behavior, leading to multiple arrests and repeated revocations of community release". 27 NY3d at 746. If there is a difference between those two characterizations, this Court cannot discern it. Psychopathy is typically diagnosed with the PCLR. But the PCLR has multiple flaws including problems with inter-rater reliability and the allegiance effect. PCLR cut-off scores are also not consistently applied. In Dennis K., the Respondent Richard TT. was found to have psychopathy because he had a score over 30. In the instant matter, however, psychopathy was diagnosed under the same instrument because Gary K. had a score of 27.4. Dr. Geller opined that psychopathy was positively correlated with sex offender recidivism particularly when it was accompanied by a paraphilia diagnosis or positive PPG result. Here, however, neither of those criteria were present. So she reached the same conclusion by finding indicia suggesting sexual deviance not rising to the level of a paraphilia.

The most thorough discussion in reported New York case law on the difference between ASPD and psychopathy came in State v. Kevin F., 51 Misc 3d 911 (Kings County Supreme Court 2016 [Riviezzo, J.]). There, the Court heard testimony from three experts (including Dr. Charder) and concluded (as this Court did in Jerome A.) that the diagnosis of ASPD plus psychopathy in that case was not materially different from the diagnosis of ASPD alone under Donald DD. and therefore required the petition's dismissal. The Respondent's expert, Dr. Rosenfeld, testified that "conceptually" the terms ASPD and psychopathy were synonymous but that the criteria used to measure them differed. 51 Misc 3d at 916. Psychopathy, he opined, was "roughly analogous to saying really, really antisocial". Id., at 917.

State expert Dr. Floyd testified that "there has been a lot of debate about the exact relationship between the two [ASPD and psychopathy]" with respect to the "degree to which the two concepts share conceptual overlap, and the degree to which they don't". Id., at 918. He said it has been argued that ASPD "gets a certain aspect of psychopathy, namely the tendency to be somewhat of an impulsive person engaging in irresponsible behavior or criminal behavior" while psychopathy has "more of an inherent personality nature". Id. Dr. Charder, however, testified [*17]that psychopathy is "not antisocial personality disorder" because psychopathy is characterized by an absence of human relatedness and empathy and has a "callous cold nature". Id. She said that Dr. Hare, the developer of the PCLR, has said that "most criminal psychopaths meet the criteria for ASPD, whereas most offenders with ASPD do not meet the PCL-R criteria for psychopathy". Id., at 919 (internal quotation and citation omitted).

The Kevin F. Court concluded, however, that all three expert witnesses had agreed that "psychopathy only increases the risk of general criminal behavior and only when psychopathy is present with indications of deviant sexual interest is there a greatly increased risk of repeated sexual criminal behavior". Id. The Court found evidence of sexual deviancy was not present in the case and that the arguments for why the Respondent's ASPD with psychopathy were valid Article 10 predicates were not materially different from the arguments the Court rejected in Donald DD.

The notion that psychopathy is an extreme form of ASPD, of course, might naturally lead to the conclusion that, like ASPD alone, ASPD with psychopathy cannot provide the sole predicate for a Mental Abnormality. The two dissenting justices in State v. Richard TT., 132 AD3d 72 (3rd Dept 2015), affirmed, State v. Dennis K., supra., perhaps described that reasoning process best in a footnote regarding the fact that Richard TT. had been diagnosed with ASPD, psychopathy and other conditions. Noting that the State expert, Dr. Peterson had, like the Donald DD. majority, described psychopathy as "an extreme form of ASPD" they reasoned: "If psychopathy is, as Peterson testified, only different in degree — but not in kind — from ASPD, it follows that psychopathy would also lack the requisite necessary relationship with control over one's sexual behavior." [McCarthy, J., dissenting, n. 3].

The reductionist view that ASPD plus anything else can be a legally sufficient Article 10 predicate, however, can lead to the conclusion that ASPD plus psychopathy is sufficient. As the First Department asserted in Jerome A. (Anonymous), the "Court of Appeals did not state that a diagnosis of ASPD with psychopathy is insufficient to support a finding of mental abnormality." That is true. The Donald DD. Court described psychopathy as merely an extreme form of ASPD; dismissed the petition even though the Respondent had been diagnosed not only with ASPD but also psychopathy; and held that ASPD "proves no sexual abnormality. It therefore cannot be the sole diagnosis that grounds . . . a [Mental Abnormality] finding" (24 NY3d at 190). But the Court never said a diagnosis of ASPD plus psychopathy would be legally insufficient.

An even more potentially expansive treatment of the legitimacy of ASPD came in the Fourth Department's recent decision in Suggs v. New York State Office of Mental Health, 2016 NY SlipOp 06289 (4th Dept 2016). That case concerned the same respondent whose judgment was affirmed by the Court of Appeals in State v. John S., supra. In Suggs, the Court reversed a directed verdict finding the Respondent did not suffer from a Mental Abnormality at a confinement annual review hearing. Suggs was diagnosed with ASPD plus "psychopathic traits". The trial court directed a verdict for the Respondent since, pursuant to Donald DD., Suggs had never been diagnosed with a sexual disorder. The Court of Appeals in Dennis K. then said that Donald DD. had not required a sexual disorder diagnosis. The Fourth Department reversed the trial court's ruling for that reason. What the Fourth Department did not explicitly address, however, was the sufficiency of the Respondent's remaining conditions.

This Court finds the argument that ASPD plus psychopathy (or psychopathic traits) is [*18]sufficient to get over the Donald DD. bar in any case where a respondent is diagnosed with both conditions unpersuasive. The Kevin F. Court posited a more refined distinction based on the expert testimony in that case, however: the notion that psychopathy with indicia of sexual deviance was more predictive of sexual recidivism than psychopathy alone. It is worth noting in that regard that the Donald DD. Court said that the State's experts in that case "did not testify that this finding [of psychopathy] materially affected their conclusions regarding Donald DD.'s mental abnormality under Article 10." (n. 3).

The Kevin F. Court, quoting Dr. Hare, said that deviant sexual arousal was defined as "evidence that an offender shows a relative preference for inappropriate stimuli, such as children, rape cues or violence cues" Id. at 920. Although the Respondent here was not diagnosed with a paraphilia, Dr. Geller credibly testified that he had indicia of such sexual deviance. She pointed, inter alia, to Mr. K.'s repeated selection of child victims between the ages of 13-15, the fact that he had made some statements indicating a preference for non-consensual sexual activity and his engagement in a wide range of sexual behaviors which had driven away intimate partners.

Both Mr. K.'s substance abuse and psychopathy, then, in this case, were more than diagnostic conditions with only a speculative connection to sexual offending. Mr. K. was diagnosed with or manifested the conditions of ASPD, psychopathy, indicia of sexual deviance not rising to the level of a paraphilia, and severe cannabis, alcohol and phencyclidine abuse which had played an integral role in his sexual offenses. The conditions other than ASPD here were not merely diagnostic labels which might lead to general disinhibition, antisocial or criminal behavior. Dr. Geller credibly testified about how those conditions in combination led to Mr. K.'s sexual offending. Even then were the First Department's apparently general acceptance of ASPD plus psychopathy as valid Article 10 predicates in any case at some point limited by the Court of Appeals, the instant case stands in a different posture.

For all of those reasons, the Court finds there is probable cause to believe the Respondent is a sex offender requiring civil management.