This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
-----------------------------------------------------------------
No. 102
In the Matter of State of New
York,
            Respondent,
        v.
Floyd Y. (Anonymous),
            Appellant.




          Alexandra H. Keeling, for appellant.
          Matthew W. Grieco, for respondent.




MEMORANDUM:
          The judgment appealed from and the order of the
Appellate Division brought up for review should be affirmed,
without costs.
          Considering the evidence "in the light most favorable
to the State" (Matter of State of New York v John S., 23 NY3d

                                - 1 -
                                - 2 -                            No. 102

326, 348 [2014]), as we must, the evidence at respondent's
retrial (see Matter of State of New York v Floyd Y., 22 NY3d 95,
111 [2013]) was legally sufficient to establish by clear and
convincing evidence that he had "serious difficulty in
controlling" his sexual conduct within the meaning of Mental
Hygiene Law § 10.03 (i).
            The State's expert witness testified, among other
things, that he diagnosed respondent with pedophilia and
antisocial personality disorder (ASPD), as well as substance
abuse disorders.   In the expert's opinion, respondent's
"combination of a pedophilic disorder with [ASPD] . . . create[d]
a very toxic mixture in the sense that [respondent] [wa]s more
likely to act on the urges towards children and not feel
remorse."   The witness's testimony was supported by evidence from
the relevant scientific community.      As respondent's expert
witness conceded, the American Psychiatric Association's Manual
of Mental Disorders states that there is "an interaction between
pedophilia and [ASPD], such that males with both traits are more
likely to act out sexually with children" (see American
Psychiatric Association, Diagnostic and Statistical Manual of
Mental Disorders 699 [5th ed 2013]).
            The jury also heard that during sex offender treatment,
respondent described his struggle with pedophilia by saying he
had experienced sexual desires toward his preteen stepdaughter,
which he had been "fighting for a significant period of time,"


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                                - 3 -                          No. 102

until "he gave in to them."    There was also testimony from
respondent's expert witness that during an interview respondent
had summarized the urgency of his sexual desires by saying, "I
want what I want when I want it."
           Additionally, the State's expert testified that
respondent had made minimal progress in treatment for his
pedophilic disorder, and had been removed from treatment "because
his behavior was deviant and very difficult to manage. . . .
[A]s recently as 2013 and 2014 . . . he wasn't really involved
[in treatment] or wasn't attending or had a negative and hostile
attitude."    The expert opined that, because of this failure to
cooperate with sex offender treatment, respondent had not
developed the "cognitive skills" necessary to manage his
pedophilia.    He had no "viable relapse prevention plan" (compare
Matter of State of New York v Michael M., 24 NY3d 649, 655 [2014]
[describing "tools" by means of which a Mental Hygiene Law
article 10 respondent subject to "strict and intensive
supervision and treatment" was "learning to control" his sexual
urges]).   The expert further testified that respondent exhibited
cognitive distortions about what constitutes consensual sex.
Moreover, respondent over the years minimized or denied his
offending behavior, exhibiting a lack of remorse for his actions,
which impaired his ability to control his desires.
           We conclude that a rational jury could have found -- on
the basis of respondent's particular diagnoses and cognitive


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                              - 4 -                         No. 102

deficiencies, his own admissions, and his cavalier attitude
toward sex offender treatment -- that respondent had "serious
difficulty in controlling" his sexual conduct.
          Finally, we note that no expert at respondent's trial
testified that a diagnosis of pedophilia alone would demonstrate
"serious difficulty in controlling" sexual conduct, and the State
concedes that it has never "advocated for any such rule."    In the
present case, by contrast, there was "detailed testimony" (Matter
of State of New York v Dennis K., 27 NY3d 718, 752 [2016]; see
generally Matter of State of New York v Donald DD., 24 NY3d 174,
188 [2014]) about the manner in which respondent's multiple
psychiatric disorders collectively resulted in his having
"serious difficulty in controlling" his sexual conduct.
          We have considered respondent's remaining contentions
and they lack merit.




                              - 4 -
Matter of State of New York v Floyd Y.
No. 102




WILSON, J.(dissenting) :


          Oh Thou, who didst with Pitfall and with Gin
               Beset the Road I was to wander in,
             Thou will not with Predestination round
              Enmesh me, and impute my Fall to Sin?


                      Rubáiyát of Omar Khayyám


I respectfully dissent.
          Floyd Y. has a tortuous history.    In sum, sentenced to
a term of four to eight years, he was confined for fifteen years,
only four of which were his term of imprisonment, and is now
released under a program of "Strict and Intensive Supervision and
Treatment" (SIST).    Make no mistake, he appears to be a person
who has done many bad things, some of which were proved beyond a
reasonable doubt, the others not.    The issue here, though, is not
whether Floyd Y. is good or bad, or whether he spent too little
time in prison, or whether he will commit some future crime if
released from SIST.    To justify his continued civil management
"on the fiction that he has some sort of mental condition other
than a tendency to commit the crimes for which he was convicted


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                               - 2 -                         No. 102

(and has served his time) is and should be constitutionally
unacceptable" (Matter of State of New York v Shannon S., 20 NY3d
99, 112 [2012] [Smith, J. dissenting]).   We now have ten years of
experience with article 10, and the truth that emerges from our
decisions is that the question of whether human behavior is
volitional or predetermined is no more tractable that it was
thousands of years ago.
          Between 1996 and 1998, Floyd Y. sexually molested his
two young stepchildren.   In 2001, he was sentenced to a term of
four to eight years in prison for those offenses.   In 2005, he
was released from prison, but his confinement was continued
pursuant to article 9 of the Mental Health Law.   In 2006, this
Court held that his confinement under article 9 was unlawful
(State of N.Y. ex rel. Harkavy v Consilvio, 7 NY3d 607 [2006]).1
In response to Harkavy, the legislature adopted article 10 of the
Mental Hygiene Law, which provides for the civil commitment of
sex offenders who have a "mental abnormality," which is defined
as a "condition, disease or disorder . . . that [1] predisposes
[a person] to the commission of conduct constituting a sex
offense" and that "[2] results in that person having serious



     1
       We held that if the State wished to continue the civil
confinement of an inmate who would otherwise be released, the
State needed to proceed under Correction Law § 402, which, among
other things, requires the prison superintendent to petition the
court to appoint two independent psychiatrists to evaluate the
inmate; article 9 of the Mental Law lacks that and other
procedural safeguards (id. at 613).

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                               - 3 -                          No. 102

difficulty in controlling that conduct" (Mental Hygiene Law §
10.03 [i]).2
          Upon enactment of article 10, the State brought a
petition seeking to continue Floyd Y.'s commitment as a sex
offender suffering from a mental abnormality.    The jury found
that he had a mental abnormality, and the trial court ordered
that he remain confined.   In Matter of State of New York v Floyd
Y. (22 NY3d 95 [2013]), we reversed and ordered a new trial,
holding that the State had used its expert as a conduit for
inadmissible hearsay prejudicial to Floyd Y.    He remained
confined pending the new trial, which was held in 2015.    The jury
again found that Floyd Y. suffered from a mental abnormality, but
the trial court held that the evidence was insufficient to show
that Floyd Y. had "serious difficulty in controlling" his sex
offending, relying principally on our decision in Matter of State
of New York v Donald DD. (24 NY3d 174 [2014]), in which we
rejected the opinion of the same psychologist who had testified
as to Floyd Y.'s mental abnormality, Dr. Stuart Kirschner (46
Misc 3d 1225[A], 2015 NY Slip Op [Sup Ct. NY County 2015]).      The
Appellate Division reversed, concluding the record contained
sufficient evidence to satisfy article 10 (135 AD3d 70 [1st Dept


     2
       Article 10 parrots the words of Supreme Court precedent.
A finding of a "mental abnormality" which causes a "lack of
control" over offending behavior satisfies the substantive due
process rights of a sex offender whom the state is seeking to
civilly manage (Kansas v Hendricks, 521 US 346 [1997]; Kansas v
Crane, 534 US 407 [2002]).

                               - 3 -
                               - 4 -                          No. 102

2015]).   Pursuant to a dispositional hearing conducted in Supreme
Court before the Appellate Division's reversal, Floyd Y. was
determined not to be a "dangerous" sex offender, and therefore is
presently released under SIST, instead of confined.
                                  I
          So, what is the clear and convincing evidence of Floyd
Y.'s serious inability to control his sex offending?   It appears
to consist of the following: (1) Dr. Kirschner diagnosed Floyd Y.
with pedophilia, antisocial personality disorder (ASPD) and
substance abuse disorders, and then relied on a statement in the
American Psychiatric Association's Manual of Mental Disorders
(DSM-5) noting "an interaction between pedophilia and [ASPD] such
that males with both traits are more likely to act out sexually
with children"; (2) during sex offender treatment, Floyd Y. said
he had struggled with, and ultimately given in to, sexual urges
directed at his stepdaughter; (3) Floyd Y. was removed from sex
offender treatment because he was difficult; (4) Floyd Y.
explained his conduct by saying "I want what I want when I want
it"; and (5) he had no viable relapse prevention plan.   In
evaluating the sufficiency of this evidence, it is important to
keep in mind that the proof must support scientifically valid
criteria that can distinguish persons who are to be civilly
confined or strictly supervised "from the dangerous but typical
recidivist convicted in an ordinary criminal case" (Kansas v
Crane, 534 US 407, 413 [2002]).   These observations compiled by


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                              - 5 -                         No. 102

Dr. Kirschner do not constitute clear and convincing proof that
Floyd Y.'s mental abnormality causes him to have serious
difficulty in controlling his sexual offending.
          First, Dr. Kirschner's diagnoses, even if accurate, go
to the "mental abnormality" prong.    His conclusion as to the
"serious difficulty in controlling" prong rests on a
generalization that may or may not be true as to Floyd Y.    The
proof required is that Floyd Y.'s mental abnormality causes him
serious difficulty in controlling his sexual offending behavior,
not that people with his diagnoses sometimes, generally, or more
often than not, have such serious difficulty.    Observed
differences in behavior do not answer the question of whether
such behavior is volitional or, instead, not volitional and
caused by a mental abnormality.   Moreover, the law does not allow
proof of individual liability by evidence of the propensity of a
group of which the individual is a member.    As a further matter,
the substance abuse and pedophilia diagnoses were based on stale
information: there was no evidence that Floyd Y. had used drugs
or alcohol in the past 20 years, and the pedophilia diagnosis was
largely based on the crime of incarceration (nearly 20 years
before his second article 10 trial) and statements he made "early
on" during sex offender treatment.3   Nothing in those diagnoses


     3
       The only recent psychological interview was conducted by
Dr. Singer; Dr. Kirschner reviewed his report and testified that
Floyd Y. "feels remorse" for molesting his stepchildren, and
recognizes "it is something that he should not have done."

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                                - 6 -                        No. 102

allows us to say that Floyd Y. has a mental abnormality that
results in an inability to control his sexually offending
behavior, and is not (or was not) instead a recidivist rapist
with a substance abuse problem.
          Second, Floyd Y.'s statements "early on" in sex
offender treatment, to the effect that he had sexual urges
towards his young stepdaughter "for a significant period of
time," to which he ultimately gave in, may establish pedophilia
(all his other documented sexual conduct involved females too old
including, inter alia, his own stepmother, to fit within the
definition of pedophilia), but, as the majority acknowledges, a
diagnosis of pedophilia does not establish a present inability to
control sexual offending, and coupling it with ASPD (which Dr.
Kirschner estimates that 80% of the prison population has) and
drug abuse (same) again does not prove that Floyd Y.'s mental
abnormality causes him serious difficulty in controlling his
sexually offending behavior.4   His admission that he did in fact


     4
       Contrary to the Appellate Division's statement that an
element of impulse control difficulty is inherent to pedophilia,
neither ASPD nor pedophilia contains such an element. Dr.
Kirschner defined a pedophile as an "individual [who] has intense
sexual urges, fantasies or behaviors involving prepubescent
children and that the person has either acted on these urges or
it causes the individual significant distress and problems in his
functioning in his life, occupational, educational, vocational,
social, etcetera. And that the problem exists for at least six
months." As we stated in Kenneth T., the existence of urges and
acting upon those urges could indicate a lack of control or it
could just as simply indicate a choice to gratify those urges (24
NY3d at 188).

                                - 6 -
                               - 7 -                        No. 102

have an urge before he committed the crime (a fact that was
probably assumed) was interpreted to mean that since he did in
fact commit the crime, he was unable to control his urges (which,
during the admission, he said he had in fact controlled for a
significant period of time).   This reasoning is circular, and
reverts back to relying almost exclusively on the underlying
criminal history for which Floyd Y. has already been to prison.
In Kenneth T. we noted that it is "rarely if ever possible to
say, from the facts of a sex offense alone" whether the offender
had difficulty controlling his behavior (24 NY3d at 188).
          Third, the record evidence concerning Floyd Y.'s sex
offender treatment shows the following.    He completed the sex
offender treatment program while serving his term of
imprisonment, and because of "dose effects" associated with his
age, he had "sufficient sex offender specific treatment."
Following his (unlawful) transfer to a psychiatric hospital in
2005, Floyd Y. "made moderate gains" but "more recently . . .
made minimal gains."   After our decision reversing his first
article 10 trial, "he wasn't really involved or wasn't attending
or had a negative and hostile attitude."    The examples given were
that he "might hang shirts to cover his window," "fought with
other residen[ts] or postured to fight with them," and "says
. . . he doesn't need to get involved because he is gonna be
released in the near future anyway."   It would be very hard
indeed to conclude that these examples evidence anything other


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                              - 8 -                          No. 102

than expected behavior by someone who believes he has been
unlawfully confined in a psychiatric facility for 11 years.
Moreover, failure to participate in treatment is at least equally
consistent with volitional behavior as it is with a mental
abnormality causing serious control difficulties.
          Fourth, his "I want what I want when I want it"
statement was made more than a decade ago.   Doubtless countless
celebrities, investment bankers, sports stars, politicians and
perhaps even lawyers and psychiatrists have felt the same way.5
Although not admirable, such sentiments are regrettably
mainstream enough to fail as evidence of a mental abnormality
causing a lack of control.
          Fifth, a sex offender's lack of a relapse prevention
plan does not help us distinguish between those who are mere



     5
       "I want what I want when I want it" also happens to be the
title of a song opening the second act of the operetta
Mademoiselle Modiste, penned by Henry Blossom and Victor Herbert,
debuting in 1905. Cf., e.g., John Lennon & Paul McCartney, I
Want You (She's So Heavy) (1969) ("I want you, I want you so bad
it's driving me mad, it's driving me mad"); Mick Ralphs, Can't
Get Enough of Your Love (1974) ("Well I take whatever I want, and
baby, I want you"); Isaac Hayes, David Porter & Mabon Hodges, I
Take What I Want (1966) ("I take what I want, I'm a bad
go-getter, yeah, yes, I am. I'm never a loser and I'm never a
quitter yet, oh, no. 'Cause I take what I want, baby, I want you,
yeah, you"); Kit Yarrow, Decoding the New Consumer Mind (2014)
(describing modern consumers as possessed by IWWIWWIWI); Leslie
Bricusse, Anthony Newley & Walter Scharf, I Want it Now!, Willy
Wonka and the Chocolate Factory (1971) ("I want the whole works!
Presents and prizes and sweets and surprises in all shapes and
sizes, And now! I don't care how! I want it now!").


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                               - 9 -                         No. 102

recidivists and those who cannot control their offending behavior
because of a mental abnormality.   Granted, a relapse prevention
plan might help either, but its absence does not let us
distinguish one from the other.
          In Kenneth T., we remarked on the difficulty of
divining how impulse control fits into the commission of a sex
crime:


          "A rapist who killed his victims so that they
          could not identify him may have serious
          difficulty controlling his sexual urges.
          Conversely, one who raped an acquaintance and
          permitted her to escape may not have serious
          difficulty controlling his sexual urges
          within the meaning of article 10. A person
          who committed a rape soon after serving a
          very short sentence for sexual abuse may have
          serious difficulty in controlling his sexual
          misconduct. Conversely, one who committed a
          rape soon after serving a very lengthy
          sentence may not have serious difficulty
          controlling his sexual urges. Rather, the
          rape may be a crime of opportunity, and the
          defendant willing to risk the prospect of a
          return to incarceration"

(24 NY3d at 188).   The American Psychiatric Association, quoted
by the Supreme Court in Crane, made the same point more
succinctly: "The line between an irresistible impulse and an
impulse not resisted is probably no sharper than that between
twilight and dusk" (534 US at 412 [quoting The American
Psychiatric Association, Psychological Evaluations for the
Courts, 200 [2d ed. 1997]]).
          Indeed, when creating the requirement that a sex

                               - 9 -
                              - 10 -                       No. 102

offender must demonstrate a "lack of control" in order to be
committed, the Supreme Court in Crane noted that "we did not give
to the phrase 'lack of control' a particularly narrow or
technical meaning.   And we recognize that in cases where lack of
control is at issue, 'inability to control behavior' will not be
demonstrable with mathematical precision.   It is enough to say
that there must be proof of serious difficulty in controlling
behavior" (534 US at 413).   In an apparent acknowledgment of the
fact that this legal requirement was not definable in psychiatric
terms, the Court went on to say, "the science of psychiatry,
which informs but does not control ultimate legal determinations,
is an ever-advancing science, whose distinctions do not seek
precisely to mirror those of the law" (id.).
          In his dissent in Crane, Justice Scalia pointed out the
glaring problems with the requirement, writing,


          "I suspect that the reason the Court avoids
          any elaboration is that elaboration which
          passes the laugh test is impossible. How is
          one to frame for a jury the degree of
          'inability to control' which, in the
          particular case, 'the nature of the
          psychiatric diagnosis, and the severity of
          the mental abnormality' require? Will it be a
          percentage ('Ladies and gentlemen of the
          jury, you may commit Mr. Crane under the SVPA
          only if you find, beyond a reasonable doubt,
          that he is 42% unable to control his penchant
          for sexual violence')? Or a frequency ratio
          ('Ladies and gentlemen of the jury, you may
          commit Mr. Crane under the SVPA only if you
          find, beyond a reasonable doubt, that he is
          unable to control his penchant for sexual
          violence 3 times out of 10')? Or merely an

                              - 10 -
                              - 11 -                         No. 102

           adverb ('Ladies and gentlemen of the jury,
           you may commit Mr. Crane under the SVPA only
           if you find, beyond a reasonable doubt, that
           he is appreciably-or moderately, or
           substantially, or almost totally-unable to
           control his penchant for sexual violence')?
           None of these seems to me satisfactory"

(id. at 423-424 [Scalia, J., dissenting]).
           As behavioral experts have opined, "It would seem
tautological, and certainly not scientific to argue that the
offender has pedophilia because he/she commits sexual acts
against children and he/she commits sexual acts against children
due to that pedophilic condition. Translating this premise into
the control paradigm: the offender lacks the ability to control
his/her behavior because the person fails to control that
behavior" (Holly A. Miller, et al., Sexually Violent Predator
Evaluations: Empirical Evidence, Strategies for Professionals,
and Research Directions, 29 L & Human Behavior 1, 43 [Feb.
2005]).   When one looks more closely at the testimony of Dr.
Kirschner, it becomes apparent that he rests his opinions here on
a host of information that fails for the same reason his
testimony failed in Kenneth T.: it does not allow him or us to
distinguish volitional conduct from conduct caused by a mental
abnormality.
                                II
           The fundamental problem is this: we have no way to know
whether the fault lies with ourselves or with our stars.    Why we
do what we do dates at least to the disagreement between the

                              - 11 -
                               - 12 -                        No. 102

Stoics and Aristotle.    Today, the debate continues, more often
framed around brain chemistry and physics than philosophy or
religion.   Article 10 asks us to prove the unprovable: a mental
abnormality caused me to have serious difficulty controlling my
actions, or as Flip Wilson put it, "The devil made me do it."
            The legislature enacted article 10 one year after
Harkavy, because it determined that "many mentally abnormal
sexual offenders may not have the kind of 'mental illness' that
is a prerequisite for such a commitment" under the Correction Law
(Governor's Program Bill Mem, Bill Jacket, L 2007, Ch 7 at 9-10).
Thus, the legislature sought to expand civil commitment of one
type of criminal - sex offenders - to persons who had previously
not qualified as in need of commitment under the existing laws.
            Days before the legislature passed article 10, the New
York State Psychiatric Association sharply criticized the
proposed legislation in a letter to Governor Spitzer, writing,
"'mental abnormality' as defined is essentially a vague and
circular determination that has no scientific or clinical basis"
and that "usurps psychiatric terminology to achieve a social and
political result" (Bill Jacket, L 2007, Ch 7 at 67).    It
continued, "Because 'mental abnormality' has no medical
foundation, mental health professionals, including psychiatrists,
have no special expertise in assessing individuals for the
presence of 'mental abnormality' as defined in the bill"
(emphasis added) and observed "it is precisely because many


                               - 12 -
                              - 13 -                         No. 102

individuals who would be considered a 'dangerous sex offender
requiring confinement' under the bill do not fit into the
existing statutory scheme for civil commitment of persons
(because they do not have a serious mental illness) that the
non-psychiatric definition of mental abnormality was created in
order to provide a legal basis for civil retention" (id.).
          Mental health organizations have criticized such laws
as scientifically unsound.   In 1999, the American Psychiatric
Association opined that "Sexual predator commitment laws
represent a serious assault on the integrity of psychiatry . . .
by bending civil commitment to serve essentially nonmedical
purposes, sexual predator commitment statutes threaten to
undermine the legitimacy of the medical model of commitment"
(American Psychiatric Association Task Force, Dangerous Sex
Offenders 173 [1999]).
          Professor Stephen Morse, an expert on individual agency
and the intersection of criminal law and mental health has
observed the following about self-control and our ability to
measure it:


          "[W]e talk about impulses, the will, and
          self-control as if these are independent
          psychological entities that are
          well-understood and reliably identifiable.
          But theoretical disarray abounds in
          psychology; the studies often contradict each
          other; measures of supposedly the same
          variable correlate poorly; findings are often
          based on suspect self-reports; and, most
          importantly, the studies do not address, and

                              - 13 -
                              - 14 -                        No. 102

           folk psychology does not know, whether and to
           what degree people are unable to refrain from
           acting. Neither in psychology, philosophy,
           nor folk psychology is there a reasonably
           uncontroversial understanding of these
           matters. Finally, we do not know how mental
           disorder affects self-control in general,
           apart from its more clear role in affecting
           perception and belief, which are variables
           central to rationality."

(Culpability and Control, 142 U Pa L Rev 1587, 1657-1658 [1994]).
Other experts in the field have commented, "[t]here is no
empirical proof that an individual diagnosed with a personality
disorder or paraphilia actually has a neuropsychological
abnormality, or, if present, the degree to which that abnormality
may impair behavioral control," and further, "[n]ot only is there
no method developed by which to assess behavioral control, there
is no clear definition of what is being measured. Any standard
would appear to be more normative than scientific" (Miller, et
al. at 42).
                                III
           The standard's deficiencies have become patent when
courts, including ours, have attempted to apply it in actual
cases.   Even a cursory review of the psychological/psychiatric
testimony in our article 10 cases demonstrates the lack of any
valid scientific method.   Experts before our courts have
testified that a sex offender has a mental abnormality causing a
serious difficulty in control based on the following sorts of
information: (i) commission of a crime in a manner in which it


                              - 14 -
                              - 15 -                         No. 102

was likely that the offender would face legal consequences
because the victims knew or could easily identify the defendant
(Kenneth T., 24 NY3d at 187); (ii) lack of conscience (Floyd Y.,
46 Misc 3d 1225[A] at *7); (iii) lack of remorse (id.); (iv) the
combination of ASPD and paraphilia NOS (Kenneth T., 24 NY3d at
179); (v) commission of a new sex offense shortly after release
from a long prison stay (id. at 187)); (vi) admissions from the
perpetrators that they have difficulty ignoring their sexual
impulses (id. at 178; Floyd Y., 46 Misc 3d 1225[A] at *7); (vii)
ASPD diagnosis (Kenneth T., 24 NY3d at 179; Donald DD. 24 NY3d at
183; Frank P., 126 AD3d 150, 154 [1st Dept 2015]; John S., 23
NY3d 326, 334 [2014]); (viii) a sense of entitlement "that if
it's there [the offender] can take it" (Dennis K., 27 NY3d 718,
731 [2016]); (viii) reoffending while in a consensual
relationship (id. at 732); (ix) a diagnosis of paraphilia NOS
(Frank P., 126 AD3d at 154); (x) offense taking place in a public
place (John S., 23 NY3d at 337); (xi) a "historical pattern" of
"reoffending after being sanctioned" (John S., 23 NY3d at 338);
(xii) failure to participate in sex offender treatment (Floyd Y.,
135 AD3d at 76; John S., 23 NY3d at 338); (vviii) a pattern of
offending with vulnerable and easily accessible victims (Floyd
Y.), among others.   Although we have accepted some of these as
sufficient evidence when in combination with others, none - apart
or in combination - lets us know whose mental abnormality causes
serious difficulty in avoiding reoffense, and who is a volitional


                              - 15 -
                              - 16 -                         No. 102

recidivist.   To be clear, I am not impugning the integrity of the
psychiatrists and psychologists who have attempted to provide
some testimony that might meet article 10's legal standard;
instead, I observe that we in the legislative and judicial
branches have erred in uniting psychiatric principles and an
impossible legal standard in an unhappy marriage, when the
experts themselves have plainly objected.
          The nature of this unworkable standard is also apparent
in how various pieces of evidence have been interpreted to prove
a mental abnormality causing a serious difficulty in control.
There is no protection in article 10 against using statements
made while participating in sex offender treatment against the
offender in later civil commitment proceedings.   Conversely,
failing to participate fully in sex offender treatment, which
undoubtedly requires confession of past offenses, will also be
used against the offender.
          In many cases, there is no recent evidence of an
offender acting out sexually, to show that he currently suffers
from a mental abnormality.   The undisputed evidence is that the
four behavioral violations Floyd Y. received during his
incarceration were not for sexual or violent infractions, but for
"package and commissary ones . . . really kind of minor stuff."
Even though Floyd Y.'s last offense was nearly twenty years ago,
and he has had no incidents since then, that evidence is
neutralized with the argument that he was confined, either in


                              - 16 -
                              - 17 -                       No. 102

prison or civilly in this case, and so his "triggers" were not
present.   However, in other cases time in prison has been used as
evidence that the offender has been acting out sexually,
seemingly indicating that the presence of absence of "triggers"
should make little difference (see e.g., Matter of Christopher
PP. v State of New York , 151 AD3d 1334, 1337 [3d Dept 2017]).
           Experts also frequently testify in these cases without
having ever interviewed the offender.   Their opinions are based
principally on criminal history (for which the offender has
already been incarcerated), statements by the offender (often
from sex offender treatment), diagnoses (which are based on
criminal history and statements by the offender), and the degree
of participation in sex offender treatment.
                                IV
           Article 9 allows for the confinement of mentally ill
persons truly in need of confinement.   "If the present sentences
for sex offenders are too short, the Legislature should make them
longer, but it should not, and constitutionally cannot, simply
substitute civil for criminal proceedings as a means of keeping
dangerous criminals off the streets" (Shannon S., 20 NY3d at 109
[Smith, J., dissenting]).   Here, the various prior offenses
presented to the jury as support for Dr. Kirschner's opinion and,
eventually, a determination that Floyd Y. has a mental
abnormality that causes him serious difficulty in controlling his
sexually offending behavior are: (1) the 1984 attempted rape of


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J. (no charges); (2) 1992 rape of S. (69 weekend days in jail);
(3) 1994 sexual assault of H. ($250 fine; $45 surcharge); (4)
1998 sexual harassment of M. ($0 fine; $45 surcharge); (5) 1999
sexual molestation of C. (no charges); (6) 1996-1998 molestation
of his stepchildren (4 to 8 year sentence).    If the State desired
to incarcerate Floyd Y. beyond the 4 to 8 year sentence imposed
for his last conviction, it did not have to abandon the prior
charges or resolve them for small fines.   His victims are hardly
redressed by his belated civil confinement, and timely and full
prosecution of those offenses, if justified, may have also
prevented some of the subsequent ones.   If unjustified (because
the evidence was weak or conflicted), where is the fairness in
asking a psychologist to assume their truth?   It is wholly
inappropriate and unconstitutional to invent a meaningless legal
standard and seek to meet it by repackaging forgone offenses to
justify indefinite confinement and strict supervision.
          The prosecution and reduction of sex crimes is
tremendously important.   However, the stakes of potential
indefinite confinement are as high as they come, and require a
reformulation of the relevant standards to adhere to the
scientific principles and medical methodologies that have
governed our civil commitment processes under article 9 and the
Correction Law.   Article 10's standard cannot properly
distinguish between the typical recidivist of dangerous sexual
crimes, for whom we have the criminal justice system, and


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                                  - 19 -                           No. 102

something more.    In Kansas v Hendricks, Justice Kennedy observed:
"if it were shown that mental abnormality is too imprecise a
category to offer a solid basis for concluding that civil
detention is justified, our precedents would not suffice to
validate it" (534 US at 412).      It is time to admit that the
emperor has no clothes.    (Whether he could not help himself
remains unknowable.)
*   *   *   *     *   *   *   *     *      *   *   *   *   *   *     *   *
Judgment appealed from, and order of the Appellate Division
brought up for review, affirmed, without costs, in a memorandum.
Chief Judge DiFiore and Judges Rivera, Stein, Fahey, Garcia and
Feinman concur. Judge Wilson dissents in an opinion.

Decided October 24, 2017




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