                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: February 18, 2016                    521689
________________________________

In the Matter of JOHN Z.

COMMISSIONER OF MENTAL HEALTH,
                    Respondent;              MEMORANDUM AND ORDER

JOHN Z.,
                    Appellant.
________________________________


Calendar Date:   February 8, 2016

Before:    McCarthy, J.P., Egan Jr., Rose, Devine and Clark, JJ.

                              __________


      Sheila E. Shea, Mental Hygiene Legal Service, Albany
(Jeremy J. Best of counsel), for appellant.

      Eric T. Schneiderman, Attorney General, Albany (Jeffrey W.
Lang of counsel), for respondent.

                              __________


McCarthy, J.P.

      Appeal, by permission, from an order of the Supreme Court
(Pritzker, J.), entered August 28, 2015 in Washington County,
which, in a proceeding pursuant to CPL 330.20 (14), found that
respondent has a dangerous mental disorder and recommitted him to
the custody of petitioner for a period of six months.

      In the mid-1980s and during the span of an afternoon and
evening, respondent stabbed to death his mother, father and
brother, and then, in the course of an apparent suicide attempt,
killed a stranger. Eventually, respondent was found not guilty
by reason of mental disease or defect in regard to two of the
killings, but found guilty of manslaughter in the first degree
and manslaughter in the second degree in regard to the remaining
                               -2-                521689

killings. With respect to the convictions, respondent was
sentenced to a prison term of 13a to 40 years. With regard to
the counts upon which he was found not guilty by reason of mental
disease or defect, respondent was ordered to be committed to the
custody of petitioner for confinement in a secure facility for a
period of six months. Apparently, respondent was not thereafter
committed to the custody of petitioner for confinement, and he
instead proceeded to begin serving his prison sentence. In
September 2005, respondent was conditionally released to Grace
House, a residential home for recent parolees. Respondent's
parole was revoked following an August 2006 violation, and he was
returned to the custody of the Department of Corrections and
Community Supervision.

      Prior to the expiration of respondent's maximum prison
sentence, petitioner commenced this proceeding for a recommitment
order pursuant to CPL 330.20 (14). Following a hearing (see CPL
330.20 [14]), Supreme Court determined that respondent suffered
from a dangerous mental disorder and directed that he be
recommitted to petitioner's custody for confinement in a secure
facility for a period of six months. Respondent, by permission,
now appeals.

      Initially, we reject respondent's contention that due
process renders a current diagnosis of antisocial personality
disorder (hereinafter ASPD) with narcissistic and paranoid
features1 insufficient as a matter of law to justify civil
confinement pursuant to CPL 330.20. More specifically on this
point, respondent contends, among other things, that the fact
that ASPD, alone, is a legally insufficient diagnosis for the
purposes of civil confinement pursuant to Mental Hygiene Law
article 10 (see Matter of State of New York v Donald DD., 24 NY3d
174, 191 [2014]) merits the conclusion that a diagnosis of ASPD
with narcissistic and paranoid features is a legally insufficient
diagnosis for the purposes CPL 330.20. The Supreme Court of the
United States has established that "[s]tates retain considerable


     1
        Respondent does not dispute, for the purposes of this
appeal, that he was properly diagnosed with ASPD with
narcissistic and paranoid features.
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leeway in defining the mental abnormalities and personality
disorders that make an individual eligible for [civil]
commitment" (Kansas v Crane, 534 US 407, 413 [2002]). The
constitutional guarantee of due process limits that discretion,
however, by ensuring that civil commitment is not used as a
mechanism to identify and confine the dangerous but "typical
[criminal] recidivist[s]" (id. at 413). With this in mind, proof
sufficient to satisfy due process requires proof of a mental
condition that causes a person to have serious difficulty in
controlling his or her dangerous behavior (see id. at 407).

      Civil confinement schemes can, of course, be more
restrictive than these constitutional limits. Accordingly, when
the Court of Appeals examined the legal sufficiency of a
diagnosis in light of a statutory civil confinement scheme
limited to sex offenders, the operative question was the
relationship between a diagnosis and a respondent's "difficulty
in controlling . . . sexual behavior," because the relevant form
of dangerousness pursuant to Mental Hygiene Law § 10.03 (i) was
that of committing a sex offense (Matter of State of New York v
Donald DD., 24 NY3d at 191). CPL 330.20 (1) (c), in contrast,
does not limit the relevant form of dangerousness in the same
manner; it only requires a relationship between respondent's
current mental condition and "a physical danger to himself [or
herself] or others."

      Further, the diagnosis of ASPD with narcissistic and
paranoid features is more specific than a generic ASPD diagnosis.
Accordingly, this case does not force us to confront a generic
ASPD diagnosis that, as elucidated by expert evidence, "means
little more than a deep-seated tendency to commit crimes" (Matter
of State of New York v Shannon S., 20 NY3d 99, 110 [2012, Smith
J., dissenting], cert denied ___ US ___, 133 S Ct 1500 [2013]).
Therefore, we turn to the expert evidence further clarifying
respondent's ASPD diagnosis and its attendant narcissistic and
paranoid features.

      Expert testimony established that ASPD causes individuals
to have "distortions related to their thoughts [and] behaviors,
and . . . a reckless disregard for societal norms." Individuals
are diagnosed with narcissistic features when they engage in
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"grandiose" thinking, have a "sense of self-importance" and feel
"entitled" and possibly omnipotent. Finally, individuals with
paranoid features often have feelings that "people are out to get
them." Considering this evidence, we conclude that a mental
condition marked by a disregard for societal norms and
specifically amplified by an unreasonably inflated sense of self
worth and an irrational attribution of hostile intentions to
other people sufficiently distinguishes a respondent from the
typical recidivist and has a relationship to the requisite
dangerousness pursuant to CPL 330.20. Accordingly, we conclude
that the diagnosis of ASPD with narcissistic and paranoid
features is not legally insufficient to support civil confinement
pursuant to CPL 330.20.

      Next, we turn to the determination that respondent suffers
from a dangerous mental disorder requiring commitment in a secure
facility. To support a dangerous mental disorder finding,
petitioner must demonstrate, by a preponderance of the evidence,
"that [the respondent] currently suffers from a 'mental illness'
as that term is defined in [Mental Hygiene Law § 1.03 (20)], and
[] that because of such condition he [or she] currently
constitutes a physical danger to himself [or herself] or others"
(CPL 330.20 [1] [c]; see Matter of Amir F., 94 AD3d 1209, 1210
[2012]; Matter of Arto ZZ., 24 AD3d 947, 947-948 [2005], lv
denied 6 NY3d 707 [2006]). Mental Hygiene Law § 1.03 (20)
defines "mental illness" as "an affliction with a mental disease
or mental condition which is manifested by a disorder or
disturbance in behavior, feeling, thinking, or judgment to such
an extent that the person afflicted requires care, treatment and
rehabilitation." Petitioner "may meet its burden of proving that
a [respondent] poses a current threat to himself [or herself] or
others . . . by presenting proof of a history of prior relapses
into violent behavior, substance abuse or dangerous activities
upon release or termination of psychiatric treatment" (Matter of
George L., 85 NY2d 295, 308 [1995]; see Matter of Francis S., 87
NY2d 554, 561 [1995]; Matter of Amir F., 94 AD3d at 1210). While
this Court's scope of review is as broad as that of the trial
court, this Court will accord appropriate deference based on the
fact that the trial court "is in the best position to not only
observe [the respondent's] behavior but also [to] evaluate the
weight and credibility of the often conflicting medical and
                              -5-                521689

psychiatric experts" (Matter of Eric U., 40 AD3d 1148, 1149-1150
[2007], lv denied 9 NY3d 809 [2007]; see Matter of Amir F., 94
AD3d at 1212).

      Upon respondent's release from prison, respondent was
ordered to reside at Grace House – run by Saving Grace Ministries
– for a period of one year. The chief executive officer
(hereinafter CEO) of Saving Grace Ministries explained that
respondent was employed in January 2006, but was then terminated
from that position due to "issues of intimidation with two female
staff members." According to the CEO, respondent became
increasingly agitated during his stay, stated that he believed
that he was being held hostage, and threatened that he was "going
to do something bigger" than a parolee who he specifically
referenced. The parolee that respondent had referenced had shot
several State Troopers. According to the CEO, during this
conversation, respondent's eyes were red, his mouth was foaming
and he was acting aggressively. A few days later, respondent
assured the CEO that he was "going to start hurting people" and
then made similar threats a few days after that. Later,
respondent assured the CEO that he "absolutely" wanted to start
hurting people and further informed the CEO that he planned to
start killing people that day. According to the CEO, respondent
acknowledged to his parole officer, who had been summoned, that
he currently felt the same way that he had felt at the time that
he killed his family. Respondent's parole officer confirmed the
CEO's testimony in regard to respondent's statements as to his
feelings. Respondent was thereafter arrested for a parole
violation. A different parole officer testified to obtaining
journal recordings that respondent had previously made "about
wanting to kill people."

      A licensed clinical social worker testified that she first
met respondent in September 2005 and that she was his primary
therapist until August 2006. The social worker testified to a
particular instance in which respondent discussed visiting his
parent's graves. During that discussion, respondent "talked
about how huge he felt standing over the graves and that [his
parents] were like puppies." On another occasion, respondent
informed the social worker that he did not appreciate that she
spoke to him "as if he were a child." Respondent also expressed
                              -6-                521689

a particular dislike of certain men who also lived in Grace
House, who he described as "black Muslims." His dislike arose
from the fact that these men "clean[ed] too much" and "used all
[of] the cleaning supplies." In a related discussion regarding
respondent's general dislike of black men and respondent's time
in prison, respondent explained that, "if it would not have kept
[him] from getting out [of prison], more than one would have felt
[his] knife." On another occasion, respondent discussed a
confrontation with an employee of Grace House. Respondent
relayed to the social worker that, as a result of a disagreement,
he had told the employee that he planned to sexually assault the
employee's wife, son and daughter. Respondent explained that he
intended to make the employee afraid so that the employee
understood that he could not "f*** with people's lives." Given
the opportunity to reflect on those actions, respondent assured
the social worker of his belief that his behavior had been
justified and that, given another opportunity, he would make the
same threats. More generally, the social worker explained that
respondent's mental health had progressively deteriorated after
he was released from prison, and that, during that time, he had
increasing difficulty in dealing with the "mundane irritations of
everyday life."

      Brian Belfi, a licensed psychologist employed by the Office
of Mental Health, testified that he interviewed respondent on two
occasions – the most recent of which was approximately three
months before the trial – and made other inquiries into
respondent's background. Based on his interviews and review of
relevant records, Belfi diagnosed respondent with, as is relevant
here, ASPD with narcissistic and paranoid features. In
explaining this diagnosis, Belfi placed the most emphasis on
respondent's killing of his family and a stranger, noted
respondent's multiple suicide attempts as a child and teenager,
his repeated thefts from his parents, his truancy from school and
his killing of cats. Belfi also considered respondent's history
of physical altercations while in prison. Particularly in regard
to respondent's narcissism, Belfi explained that respondent has
initiated over 25 lawsuits in a short span of time, and that
respondent was interested in having Belfi read his legal briefs
due to respondent's belief that they were particularly well
written. Further, and in regard to respondent's paranoia, Belfi
                              -7-                521689

explained that respondent believed that Governor Andrew Cuomo had
personally been involved with sending Belfi to do the
examination. Belfi further explained that respondent also
believed that the Moreland Commission was somehow involved in his
continued detention. Further, Belfi relayed that respondent had
a belief that he had negatively affected some business dealings
of the CEO of Saving Grace Ministries and that, as a result, he
was currently in danger from the mafia.

      More generally, Belfi emphasized that it was important to
him that respondent "dwell[ed]" on killing people in his recorded
diary. Belfi explained that he was not particularly convinced by
respondent's explanation of the cathartic benefits of such
recordings, given that respondent was a person who had killed
multiple people. Belfi testified that he believed that, over
time, respondent would pose a moderate risk to others if he was
allowed out into the community. Based on this and other
information obtained by Belfi, he opined that respondent had a
mental illness that required care or treatment and that, if
respondent were released to the community, he would be a danger
to himself or others.

      Respondent presented the testimony of Joe Scroppo, a
psychologist and licensed attorney. He diagnosed respondent with
other specified personality disorder with paranoid, narcissistic
and antisocial traits and major depressive disorder, recurrent,
in full remission. Based on this diagnosis and the information
that he obtained, Scroppo opined that respondent had a low to
moderate risk of dangerousness if released into the community.
Scroppo believed that respondent's fights in school were within a
normal range, that there was no indication that respondent had
enjoyed killing cats, and that his behavior in the lead up to his
parole revocation was his attempt to set boundaries and modify
his environment. Scroppo explained that respondent's use of his
recorded diary to share his violent impulses was a good sign that
respondent had acquired a tool to "drain off anger and other
negative feelings." According to Scroppo, while respondent's
belief that the mafia was after him was probably an
"exaggeration," he found it important that it was not a delusion.
Scroppo further noted that respondent did not abuse drugs, which
reduced his risk of dangerousness.
                              -8-                521689

      Supreme Court found Belfi's testimony more convincing and
credible than Scroppo's testimony, and we discern no reason to
depart from that determination. As such, Supreme Court properly
found that respondent suffers from a mental illness within the
meaning of CPL 330.20 (see Matter of Marvin P., 120 AD3d 160, 171
[2014]; Matter of Consilvio v Alan L., 7 AD3d 252, 255-256
[2004]). Turning to the question of dangerousness, respondent's
killings as a teenager, though removed in time, offer some
insight into the immense danger that respondent posed to the
community at a point in time where respondent faced particular
stresses and was not receiving mental health treatment. Although
respondent has not engaged in particularly significant acts of
physical violence since that time, that period has been most
often marked by a highly structured detention environment and
significant mental health interventions. During the one period
of time that respondent began to be introduced back into the
community, his mental health decompensated relatively swiftly.
That decompensation was most notably marked by respondent's
increased aggression, his expressed desire to commit violence and
his threats of violence against others. Minimization of such
threats as mere bluster is not warranted here, given respondent's
history of the use of extreme physical violence against family,
strangers and animals. Finally, as Belfi described, respondent
lacks insight into his mental health condition and does not
understand that he needs continued mental health treatment.
Accordingly, we agree with Supreme Court that petitioner proved
by a preponderance of the evidence that respondent suffers from a
dangerous mental disorder requiring commitment in a secure
facility (see Matter of Eric U., 40 AD3d at 1150; Matter of
Consilvio v Alan L., 7 AD3d at 256-257).

     Egan Jr., Rose, Devine and Clark, JJ., concur.
                        -9-                  521689

ORDERED that the order is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
