                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: August 13, 2015                   520794
________________________________

In the Matter of STATE OF
   NEW YORK,
                    Appellant,
      v                                     OPINION AND ORDER

RICHARD TT.,
                    Respondent.
________________________________


Calendar Date:   June 5, 2015

Before:   McCarthy, Egan Jr., Lynch and Devine, JJ.; Peters, P.J.,
          vouched in.

                             __________


      Eric T. Schneiderman, Attorney General, Albany (Allyson B.
Levine of counsel), for appellant.

      Sheila E. Shea, Mental Hygiene Legal Service, Albany
(Shannon Stockwell of counsel), for respondent.

                             __________


Devine, J.

      Appeal from an order of the Supreme Court (Krogmann, J.),
entered March 23, 2015 in Warren County, which, in a proceeding
pursuant to Mental Hygiene Law article 10, granted respondent's
motion to, among other things, vacate two prior orders of the
court.

      The underlying facts are also addressed in our prior
decision in this matter (127 AD3d 1528 [2015]). Briefly,
respondent has a history of sexually inappropriate behavior and
was adjudicated a juvenile delinquent for his efforts to anally
rape two children, ages 5 and 8, when he was 12 years old. In
2007, when he was 19, respondent was charged with various
                              -2-                520794

offenses as a result of his forcible rape of one underage girl
and engaging in sex with another. He pleaded guilty to rape in
the third degree and sexual misconduct and was sentenced to an
aggregate prison term of 1 to 3 years. As his release from
prison neared in 2010, petitioner commenced this proceeding
seeking a determination that respondent is a dangerous sex
offender requiring civil management (see Mental Hygiene Law
§ 10.06 [a]). Respondent did not dispute that he suffered from
numerous psychiatric disorders, including antisocial personality
disorder (hereinafter ASPD), but argued that none of them
constituted a "mental abnormality" that could subject him to
confinement under Mental Hygiene Law article 10 (see Mental
Hygiene Law §§ 10.03 [i]; 10.07 [a]). After a bench trial,
Supreme Court issued an order finding respondent to be a detained
sex offender suffering from a mental abnormality (see Mental
Hygiene Law § 10.07 [a]). Supreme Court then conducted the
dispositional phase of the trial and adjudicated respondent to be
a dangerous sex offender requiring confinement (see Mental
Hygiene Law § 10.07 [f]). Respondent appealed from that order.

      While his appeal was pending, the Court of Appeals held
that ASPD is a diagnosis with "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 [Mental
Hygiene Law] article 10 purposes" (Matter of State of New York v
Donald DD., 24 NY3d 174, 190 [2014]). Respondent accordingly
moved to vacate the orders finding him to be a detained sex
offender suffering from a mental abnormality and a dangerous sex
offender requiring confinement, arguing that he could not be said
to have a mental abnormality. Supreme Court in no way departed
from its prior findings and expressed its continued belief that
respondent suffered from a mental abnormality. Because it felt
that Matter of State of New York v Donald DD. (supra) "require[d]
a different conclusion," however, Supreme Court granted the
motion and ordered that respondent be released from confinement.
As a result, we dismissed the appeal from the confinement order
on mootness grounds (127 AD3d at 1528). We are now asked to
                               -3-                520794

resolve petitioner's appeal from the vacatur order.1

      Petitioner initially asserts that the motion to vacate was
procedurally inappropriate because respondent could obtain relief
via other means. Respondent cited CPLR 4404 (b) and 5015 (a) as
authority for his motion to vacate, and Supreme Court relied upon
CPLR 5015 in granting it. The grounds for vacatur set forth in
CPLR 5015 (a) are not exclusive, and "[a] court has the
common-law authority to, in its discretion, grant relief from a
judgment or order in the interest of justice, considering the
facts of the particular case, the equities affecting each party
and others affected by the judgment or order, and the grounds for
the requested relief" (Hodge v Development at Helderberg Meadows,
LLC, 114 AD3d 1122, 1123 [2014] [internal quotation marks and
citations omitted]; see Nash v Port Auth. of N.Y. & N.J., 22 NY3d
220, 225-226 [2013]; Woodson v Mendon Leasing Corp., 100 NY2d 62,
68 [2003]). Given this authority, and noting that Supreme Court
remained empowered to "entertain a motion to vacate its [orders]
during the pendency of an appeal," we have no difficulty
concluding that the motion to vacate was properly considered
(Ruben v American & Foreign Ins. Co., 185 AD2d 63, 67 [1992]).

      Turning to the merits, "[a] motion pursuant to CPLR 5015 to
vacate a judgment or order is addressed to the trial court's
sound discretion, subject to reversal only where there has been a
clear abuse of that discretion" (Maddux v Schur, 53 AD3d 738, 739
[2008]; see Matter of McLaughlin, 111 AD3d 1185, 1186 [2013]).
Petitioner argues that such an abuse of discretion is present
here, as Matter of State of New York v Donald DD. (supra) did not
compel the conclusion that respondent did not suffer from a
mental abnormality. We agree that Matter of State of New York v
Donald DD. (supra) did not warrant vacatur of orders that Supreme
Court otherwise viewed to be supported by the evidence and,
accordingly, reverse.

      In order "[t]o demonstrate that respondent is a dangerous
sex offender requiring civil confinement, petitioner was required


     1
        We granted petitioner's motion for a stay of the order
pending appeal.
                              -4-                520794

to prove 'by clear and convincing evidence that . . . respondent
has a mental abnormality involving such a strong predisposition
to commit sex offenses, and such an inability to control [his]
behavior, that [he] is likely to be a danger to others and to
commit sex offenses if not confined to a secure treatment
facility'" (Matter of State of New York v Walter W., 94 AD3d
1177, 1178 [2012], lv denied 19 NY3d 810 [2012], quoting Mental
Hygiene Law § 10.07 [f]; see Matter of State of New York v Barry
W., 114 AD3d 1093, 1094 [2014]). Respondent takes issue with the
finding that he suffered from a mental abnormality, i.e., "a
congenital or acquired condition, disease or disorder that
affects the emotional, cognitive, or volitional capacity of a
person in a manner that predisposes him . . . to the commission
of conduct constituting a sex offense and that results in [his]
having serious difficulty in controlling such conduct" (Mental
Hygiene Law § 10.03 [i]; see Matter of State of New York v Donald
DD., 24 NY3d at 187).

      Substantive due process requires that evidence of a mental
abnormality reflect a "serious difficulty in controlling
behavior" that, "when viewed in light of such features of the
case as the nature of the psychiatric diagnosis, and the severity
of the mental abnormality itself, . . . [is] sufficient to
distinguish the dangerous sexual offender whose serious mental
illness, abnormality, or disorder subjects him [or her] to civil
commitment from the dangerous but typical recidivist convicted in
an ordinary criminal case" (Kansas v Crane, 534 US 407, 413
[2002]; see Matter of State of New York v Donald DD., 24 NY3d at
189). As such, "the New York statutory structure does not run
afoul of substantive due process because it requires [petitioner]
to prove that the individual is dangerous, and the dangerousness
must be coupled with a mental abnormality, which – by definition
– incorporates the additional requirement that the offender have
serious difficulty with behavioral control" (Matter of State of
New York v Frank P., 126 AD3d 150, 159 [2015]). The Court of
Appeals has determined that a diagnosis of ASPD, without more,
does not meet that requirement, as it "establishes only a general
tendency toward criminality, and has no necessary relationship to
a difficulty in controlling one's sexual behavior" (Matter of
State of New York v Donald DD., 24 NY3d at 191; see Matter of
State of New York v Gen C., 128 AD3d 467, 467 [2015]).
                              -5-                520794

      With this legal framework in mind, we turn to the facts of
the case before us. Initially, while "a civil commitment under
Mental Hygiene Law article 10 may [not] be based solely on a
diagnosis of ASPD, together with evidence of sexual crimes"
(Matter of State of New York v Donald DD., 24 NY3d at 189),
respondent here was diagnosed with several mental disorders. The
psychologists who testified – Trica Peterson for petitioner and
Erik Schlosser for respondent – were in agreement that he
suffered from ASPD and borderline personality disorder
(hereinafter BPD). Those conditions result in emotional
reactivity, aggressiveness and impulsivity, but neither
necessarily result in a predilection to commit sex offenses.2
Schlosser went on to note, however, that individuals suffering
from BPD not only exhibit generalized impulsivity, but may
specifically exhibit impulsive sexual behavior. Moreover,
Peterson diagnosed respondent as suffering from psychopathic
traits, which she described as an extreme form of ASPD, and
Supreme Court credited her testimony in that regard. Peterson
explained how those traits impacted her conclusions, noting that
a psychopath such as respondent exhibits poor behavioral control
and impulsivity that would further impair his decision making
(cf. Matter of State of New York v Donald DD., 24 NY3d at 183 n
3). Schlosser questioned the validity of any link between
psychopathy and the risk of sexual reoffense, but even he
acknowledged the existence of studies that drew such a link. The
trial evidence therefore reflected that respondent has a variety
of disorders that can lead not only to a generalized willingness
to commit crimes, but impulsive sexual behavior in particular.

      The record is replete with proof that the diagnoses do, in
fact, cause respondent to exhibit impulsive and inappropriate
sexual behavior. Peterson and Schlosser agreed that respondent
exhibited "a high degree of sexual preoccupation and [a] high
degree of . . . hypersexuality" during the period that he was
confined as a juvenile. Respondent indicated that he victimized


    2
        Peterson provisionally diagnosed respondent as suffering
from paraphilia not otherwise specified, but later retracted that
diagnosis because of her belief that it was "subsumed" within the
diagnosis of ASPD.
                              -6-                520794

six children, including his sister, stepsister and two cousins,
that were not accounted for in his juvenile delinquency history.
Moreover, the crimes to which he pleaded guilty as an adult
stemmed from allegations that he had forcibly raped one underage
girl and threatened to kill her if she told, as well as engaging
in sex with another underage girl. Peterson believed that
respondent's sexual preoccupation was ongoing, as he had dozens
of sexual partners in the months leading up to his incarceration
and, while incarcerated, experienced increasingly persistent
sexual thoughts that were driving him "nuts."

      The question of "whether [respondent] had great difficulty
in controlling his urges or simply decided to gratify them" may
also be answered here without difficulty (Matter of State of New
York v Donald DD., 24 NY3d at 188). Peterson, in fact,
identified several instances that illustrated "respondent's lack
of compunction and incapability to comprehend the
inappropriateness of his conduct" (Matter of State of New York v
Shannon S., 20 NY3d 99, 108 [2012], cert denied     US    , 133 S
Ct 1500 [2013]). Aside from the obvious fact that respondent has
repeatedly victimized children despite sanctions for that
behavior, respondent has expressed a lack of understanding as to
what consensual sex is, most notably in 2012 when he described
his strategy of verbally coercing women into having sex with him
and found it "ridiculous" that anyone would view the ensuing sex
as nonconsensual. He further stated that he fantasized about
young girls and apparently saw no problem in lying about his age
in order to obtain entry to "teen night" events, where he could
meet "gullible" girls that made easy targets. Respondent has
also failed to complete sex offender treatment despite numerous
attempts, suggesting that he has not brought his urges under
control, recognized them as destructive, or developed any
meaningful strategies for dealing with them (compare Matter of
State of New York v Frank P., 126 AD3d at 163).

      Peterson had all of the above evidence before her, had
interviewed respondent and reviewed his extensive institutional
and treatment records, and used this information to form a
"detailed psychological portrait of" respondent (Matter of State
of New York v Donald DD., 24 NY3d at 188). That portrait shows
an individual whose various diagnoses create a toxic mix that
                              -7-                520794

have not only caused him to objectify women and feel "entitled to
sex regardless of impact," but have also impelled him to satisfy
those desires. Peterson saw no reason to believe that this
situation would change in the future and had no difficulty
opining that respondent had a mental abnormality that seriously
impaired his behavioral control, particularly when coupled with
his diagnosed penchant for substance abuse. In our view, nothing
in Matter of State of New York v Donald DD. (supra) would bar her
from doing so now. Thus, as the evidence otherwise supports the
finding that respondent is a dangerous sex offender requiring
civil confinement, and the interests of justice plainly do not
support granting the motion to vacate, Supreme Court abused its
discretion in doing so (see Matter of State of New York v Glenn
T., 48 Misc 3d 521, 530-531 [2015]; compare Matter of State of
New York v Gen C., 128 AD3d at 467-468).

     Peters, P.J., Egan Jr. and Devine, JJ., concur.


McCarthy, J. (dissenting).

      While we agree that the motion to vacate was properly
considered, we disagree with the majority's conclusion that
Supreme Court abused its discretion by granting the motion. The
record provides insufficient evidence to establish that
respondent suffered a mental abnormality within the meaning of
Mental Hygiene Law article 10. Specifically, neither expert
witness diagnosed respondent with an "independent mental
abnormality diagnosis," because none of the conditions, diseases
or disorders that were attributed to respondent bear a "necessary
relationship to a difficulty in controlling one's sexual
behavior" (Matter of State of New York v Donald DD., 24 NY3d 174,
191 [2014]). For that reason, we respectfully dissent.

      Pursuant to Mental Hygiene Law § 10.03 (i), a mental
abnormality is "a congenital or acquired condition, disease or
disorder that affects the emotional, cognitive, or volitional
capacity of a person in a manner that predisposes him or her to
the commission of conduct constituting a sex offense and that
results in that person having serious difficulty in controlling
such conduct." In Matter of State of New York v Donald DD.
                               -8-                520794

(supra), the Court of Appeals further clarified that a diagnosis
that "proves no sexual abnormality . . . cannot be the sole
diagnosis that grounds [a finding of mental abnormality as
defined by Mental Hygiene Law article 10]" (id. at 190).
Specifically referring to the diagnosis at issue in that case,
antisocial personality disorder (hereinafter ASPD), the Court
determined that "ASPD is not a sexual disorder"; although ASPD is
not an unreliable diagnosis, the Court identified the "problem"
with the diagnosis as being that it "establishes only a general
tendency toward criminality, and has no necessary relationship to
a difficulty in controlling one's sexual behavior" (id. at 191
[internal quotation marks omitted]). Given ASPD's deficiency in
this regard, and upon the Court's further consideration of the
fact that there was no other "independent mental abnormality
diagnosis," it concluded that the record was insufficient to
support a finding that Donald DD. suffered from the requisite
mental abnormality (id.).

      Turning to our record, Trica Peterson, a psychologist,
testified on behalf of petitioner. She cumulatively diagnosed
respondent with ASPD, borderline personality disorder
(hereinafter BPD), psychopathy,1 cannabis abuse and alcohol
abuse.2 Peterson specifically identified ASPD, BPD and


     1
        As Peterson acknowledged, psychopathy is not a diagnosis
recognized by the current edition of the Diagnostic and
Statistical Manual of Mental Disorders.
     2
        The majority contends that Peterson testified that she
withdrew a paraphilia not otherwise indicated diagnosis because
she believed that "it was 'subsumed'" within the diagnosis of
ASPD. Although Peterson was not perfectly precise with her use
of the pronoun "it," a contextual reading of the record
establishes that Peterson testified that respondent's behaviors
were subsumed by ASPD, and this reading particularly makes sense
given her conclusion that "[t]here [was] not sufficient evidence
to . . . have a stand alone [p]araphilia [diagnosis]." Even if
this were not clear based on context, ASPD is simply not a
diagnosis that contains the diagnosis of paraphilia. The
"essential features" of paraphilia include particular "sexual
                              -9-                520794

psychopathy as personality disorders. Peterson also agreed that
she did not diagnose defendant with a sexual disorder.
Relatedly, Peterson did not testify that any of the three
diagnoses had any sexual component.

      As an initial matter, we agree with the majority that
Peterson and respondent's expert were in consensus in regard to
respondent's diagnoses of ASPD and BPD to the extent that they
testified that neither of those diagnoses identified respondent
as someone necessarily predisposed to commit sex offenses.
Further, Peterson – "whose usual role is to testify that a
respondent suffers from a mental abnormality for [Mental Hygiene
Law] article 10 purposes" – never identified ASPD, BPD or
psychopathy3 as having a "necessary relationship to a difficulty
in controlling one's sexual behavior" (Matter of State of New
York v Donald DD., 24 NY3d at 190-191).4 Finally, and
unsurprisingly, Peterson did not identify cannabis abuse or
alcohol abuse as a condition necessarily affecting a person's
ability to control his or her sexual behavior. In the absence of
any evidence that respondent had a condition, disease or disorder
that had a "necessary relationship to a difficulty in controlling
one's sexual behavior," there is no "independent mental
abnormality diagnosis[] to ground a finding of mental abnormality


fantasies [and] sexual urges," which are not features of ASPD
(Matter of State of New York v Donald DD., 24 NY3d at 179 n 1).
    3
        Peterson described psychopathy as "an extreme form of
[ASPD]" (see generally Matter of State of New York v Donald DD.,
24 NY3d at 183 n 3). 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.
    4
        Both experts testified at length regarding significant
similarities between ASPD and BPD. Notably, in explaining her
conclusion that respondent had a mental abnormality, Peterson
initially identified each ASPD, BPD and psychopathy but went on
to refer to "personality disorders" generally at the point in her
testimony where she described her "reason[ing]."
                              -10-               520794

within the meaning of Mental Hygiene Law article 10," and Supreme
Court correctly vacated its previous orders (Matter of State of
New York v Donald DD., 24 NY3d at 191; see Matter of State of New
York v Maurice G., 47 Misc 3d 692, 700-701 [Sup Ct, NY County
2015]; see generally Matter of State of New York v Gen C., 128
AD3d 467, 467 [2015]; but see Matter of State of New York v Glenn
T., 48 Misc 3d 521, 527-531 [Sup Ct, Oneida County 2015]).

      Further, the impulsivity and behavioral control problems
that the majority identify are also hallmarks of ASPD,5 as
evidenced by the expert opinion regarding Donald DD. that ASPD
predisposed him to "act[] upon the urges that he has . . . and
neglect[] the laws that govern" (Matter of State of New York v
Donald DD., 24 NY3d at 183 [internal quotation marks omitted]).
In addition, the same expert not only connected such impulsivity
to a general predisposition to commit crime, but also
specifically identified such impulsivity as affecting Donald
DD.'s sexual behavior (id.). That expert also specifically
opined that, in fact, "Donald DD.'s ASPD predisposed him to
commit conduct constituting a sex offense" (id.). Given the
Court of Appeals' conclusion in Matter of State of New York v
Donald DD. (supra) that the record was deficient as a matter of
law to support such a finding, we are unpersuaded by the
majority's contentions on this issue. Under the standard of
Matter of State of New York v Donald DD. (supra) that constrains
us, respondent's civil confinement is not justified.

        Lynch, J., concurs.



    5
        More particularly in terms of the constitutional
principles that limit civil confinement, behavioral control and
impulse deficits do not distinguish a respondent "from the
dangerous but typical recidivist convicted in an ordinary
criminal case" (Kansas v Crane, 534 US 407, 413 [2002]).
Further, it is not a remarkable or a distinguishing fact that
such deficits would affect a person's sexual behavior along with
other behavior; it would only be remarkable if someone's general
problems with impulse and behavioral control did not affect his
or her sexual behavior.
                              -11-                 520794

      ORDERED that the order is reversed, on the law, without
costs, and motion denied.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
