        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

965.1
CA 15-00538
PRESENT: SMITH, J.P., CARNI, LINDLEY, VALENTINO, AND DEJOSEPH, JJ.


IN THE MATTER OF THE APPLICATION FOR DISCHARGE
OF MYRON WRIGHT, CONSECUTIVE NO. 16906 FROM
CENTRAL NEW YORK PSYCHIATRIC CENTER PURSUANT TO
MENTAL HYGIENE LAW § 10.09,
PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

STATE OF NEW YORK, NEW YORK STATE OFFICE OF
MENTAL HEALTH, AND NEW YORK STATE DEPARTMENT OF
CORRECTIONS AND COMMUNITY SUPERVISION,
RESPONDENTS-APPELLANTS.


ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (MICHAEL CONNOLLY OF
COUNSEL), FOR RESPONDENTS-APPELLANTS.

EMMETT J. CREAHAN, DIRECTOR, MENTAL HYGIENE LEGAL SERVICE, UTICA
(PATRICK T. CHAMBERLAIN OF COUNSEL), FOR PETITIONER-RESPONDENT.


     Appeal from an order of the Supreme Court, Oneida County (Louis
P. Gigliotti, A.J.), entered March 26, 2015 in a proceeding pursuant
to Mental Hygiene Law article 10. The order, among other things,
directed the discharge of petitioner from the custody of the Office of
Mental Health.

     It is hereby ORDERED that the order so appealed from is reversed
on the law without costs, the motion is denied, and the matter is
remitted to Supreme Court, Oneida County, for further proceedings on
the petition in accordance with the following memorandum: Petitioner
commenced this proceeding to challenge his continued confinement to a
secure facility as a dangerous sex offender. Petitioner was convicted
of numerous sex offenses, including a 1972 rape that occurred hours
after he was placed on probation and a 1978 sex offense that occurred
shortly after his release from prison. He was released again after
his ensuing prison sentence and, although he remained in the community
for approximately 10 years, he was sentenced to, inter alia, six years
in prison upon his 2001 plea of guilty to attempted rape in the first
degree (see Matter of State of New York v Myron P., 86 AD3d 26, 28,
affd 20 NY3d 206). After petitioner completed that prison term,
respondents commenced a proceeding seeking to confine him pursuant to
article 9 of the Mental Hygiene Law, and they then commenced an
article 10 civil confinement proceeding. After a trial on the latter
proceeding, Supreme Court, Albany County (McNamara, J.), found that
petitioner was a dangerous sex offender in need of confinement and
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committed him to a secure treatment facility (see Myron P., 86 AD3d at
28).

     In 2014, petitioner filed a petition pursuant to Mental Hygiene
Law § 10.09 (f), seeking his release under a regimen of strict and
intensive supervision and treatment. At the trial on the petition,
respondents called Dr. Allison T. Prince, who opined that petitioner
remained a dangerous sex offender requiring confinement. Dr. Prince
based her opinion, inter alia, on her diagnosis that petitioner
suffers from antisocial personality disorder, cannabis dependence in
remission in a secure environment and paraphilia, otherwise specified,
i.e., his arousal by and predisposition to engage in nonconsensual
sex, in a highly formulaic and compulsive manner, following a well-
defined cycle of offending. Dr. Prince testified regarding
petitioner’s history of offending, including his admission that he
offended against 21 women, and his recent lack of progress in
treatment. She also testified regarding the psychological tests given
to petitioner, and developed a comprehensive profile of his sexual
compulsions. Dr. Prince’s evaluation of petitioner was also received
in evidence.

     At the conclusion of Dr. Prince’s testimony, petitioner moved for
a directed verdict pursuant to CPLR 4401, contending, inter alia, that
respondents failed as a matter of law to meet their burden of
establishing that he has serious difficulty controlling his conduct
within the meaning of the Mental Hygiene Law. We agree with
respondents that the court erred in granting the motion for a directed
verdict. We therefore reverse the order, deny the motion and remit
the matter to Supreme Court for further proceedings on the petition.

     It is well settled that, “[i]n determining a motion for a
directed verdict, the court must view the evidence in the light most
favorable to the nonmoving party and resolve all issues of credibility
in favor of the nonmoving party . . . , and may grant the motion only
if there is no rational process by which the jury could find for the
[nonmoving party] as against the moving” party (Wolf v Persaud, 130
AD3d 1523, 1524; see generally State of New York v Farnsworth, 107
AD3d 1444, 1445). In considering such a motion, “the trial court must
afford the party opposing the motion every inference which may
properly be drawn from the facts presented, and the facts must be
considered in [the] light most favorable to the nonmovant” (Szczerbiak
v Pilat, 90 NY2d 553, 556; see Shelters v City of Dunkirk Hous. Auth.,
126 AD3d 1329, 1329).

     Pursuant to the Mental Hygiene Law, a person is classified as a
dangerous sex offender requiring confinement if that person “suffer[s]
from a mental abnormality involving such a strong predisposition to
commit sex offenses, and such an inability to control behavior, that
the person is likely to be a danger to others and to commit sex
offenses if not confined to a secure treatment facility” (§ 10.03
[e]). The statute defines a mental abnormality as “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
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                                                         CA 15-00538

offense and that results in that person having serious difficulty in
controlling such conduct” (§ 10.03 [i]).

     Here, the court concluded that, as a matter of law, respondents
failed to establish that petitioner has serious difficulty in
controlling his predisposition to commit sexual offenses.
Respondents’ burden with respect to that issue was to submit “clear
and convincing evidence that [petitioner] had ‘serious difficulty in
controlling’ his sexual misconduct within the meaning of section 10.03
(i)” (Matter of State of New York v Donald DD., 24 NY3d 174, 187).
Although we agree with petitioner that the evidence establishing that
he was diagnosed with antisocial personality disorder and paraphilia
is, standing alone, insufficient to meet that burden (see id. at 189-
191), we conclude that the evidence presented by respondents in this
case was sufficient to withstand petitioner’s motion for a directed
verdict.

     Respondents introduced evidence that petitioner had been
diagnosed with three mental disorders, i.e., antisocial personality
disorder, paraphilia otherwise specified, and cannabis dependence in
sustained remission in a controlled environment. We agree with the
dissent that, when asked which factors led her to the conclusion that
petitioner had serious difficulty in controlling his sexual behavior,
Dr. Prince listed only certain factors. We note, however, that
respondents elicited significant additional information concerning
petitioner’s predispositions from Dr. Prince throughout the trial, and
she testified that such information factored into her diagnosis and
her opinion that petitioner had the requisite serious difficulty in
controlling his sexual conduct. That evidence therefore leaves an
issue for the trier of fact whether petitioner has serious difficulty
in controlling his predisposition to commit sexual crimes. First,
respondents established that petitioner engaged in sexual offenses
against 21 women but was not prosecuted for all of those offenses, and
petitioner had “voiced having . . . sexual arousal to nonconsensual
activity.” Petitioner told Dr. Prince that there was a 50-50 chance
that he would reoffend, thus lending credence to Dr. Prince’s opinion
that he had serious difficulty in controlling his conduct.

     More importantly, however, Dr. Prince indicated that petitioner
follows “a script of behaviors with his offense cycle . . . that he
would play out with each offense,” and she wrote in her report that
petitioner “presents with a pattern of highly repetitive, compulsive
sexual behavior.” Dr. Prince testified that petitioner’s cycle begins
with feelings of loneliness, anger, powerlessness and isolation, which
lead to the start of his cycle of offending. His cycle then
progresses through fixating on a particular woman, stalking her,
fantasizing about nonconsensual sex with her, planning on how to
approach her, and then physically touching her and engaging in sex
with her without her consent, often with the use of weapons.

     Furthermore, Dr. Prince testified that petitioner never completed
a sexual offender treatment program, became stagnant in his current
treatment program, and slept during recent group treatment sessions.
Dr. Prince testified that petitioner’s treatment had not progressed to
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                                                         CA 15-00538

the point where he had a viable plan for coping with that cycle, and
that petitioner was isolating himself as a method of coping with the
stresses that he faced from, inter alia, these Mental Hygiene Law
article 10 proceedings. She also opined that he needed to update his
relapse prevention plan to account for his specific sexual offense
cycle, but he had not done so. Dr. Prince testified that petitioner
has “been repeatedly really encouraged to focus more intently on areas
related to his cycle, and he just hasn’t done that.” In addition,
although petitioner had previously submitted to two penile
plethysmograph (PPG) tests earlier in the treatment process, they were
inconclusive, and he refused to take a polygraph or another PPG test
during his most recent phase of treatment.

     Dr. Prince also relied on psychological testing of petitioner.
She noted that he had undergone Static-99 tests on several occasions,
and that his test scores of 7 in 2007 and 2008 supported her
conclusions. In addition, she scored a VRS:SO test regarding
petitioner, which indicated that he was in the high risk group for
reoffending sexually. Consequently, we conclude that Dr. Prince
created “[a] detailed psychological portrait of a sex offender [that]
allow[ed her] to determine the level of control the offender has over
his sexual conduct” (Donald DD., 24 NY3d at 188). Indeed, when the
Court of Appeals was confronted with a trial of an offender with a
similar diagnosis and supporting facts, the Court concluded that there
was overwhelming evidence on the issue of the offender’s inability to
control his conduct (see Matter of State of New York v Robert F., 25
NY3d 448, 454-455).

     Dr. Prince also testified that petitioner indicated that he was
becoming increasingly frustrated with the Mental Hygiene Law article
10 process, and his continued detention. When coupled with the
evidence of petitioner’s clear, well-defined cycle of offending that
begins with becoming frustrated, the deficits in his recent treatment
plan on that specific area, and his stagnating course of treatment, we
conclude that Dr. Prince’s opinion and the supporting evidence,
“ ‘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, [establish that petitioner is a] . . . dangerous sexual
offender whose serious mental illness, abnormality, or disorder
subjects him to civil commitment[, rather than a] dangerous but
typical recidivist convicted in an ordinary criminal case’ ” (Donald
DD., 24 NY3d at 189, quoting Kansas v Crane, 534 US 407, 413). Thus,
respondents submitted sufficient evidence that, if it is credited by
the factfinder, would establish that petitioner has a condition,
disease or disorder “that predisposes him . . . to the commission of
conduct constituting a sex offense and that results in [petitioner]
having serious difficulty in controlling such conduct” (§ 10.03 [i];
see generally Matter of State of New York v John S., 23 NY3d 326, 348-
349, rearg denied 24 NY3d 933). Consequently, we conclude that, if
the factfinder accepts that evidence, there is a “rational process by
which the [factfinder] could find for [respondents] as against”
petitioner (Wolf, 130 AD3d at 1524).
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                                                         CA 15-00538

     All concur except LINDLEY and DEJOSEPH, JJ., who dissent and vote
to affirm in accordance with the following memorandum: We
respectfully dissent because we disagree with the conclusion of the
majority, quoting Matter of State of New York v Donald DD. (24 NY3d
174, 188), that respondents’ expert created “ ‘[a] detailed
psychological portrait of [petitioner that] allow[ed her] to determine
the level of control the [petitioner] has over his sexual conduct.’ ”
We therefore vote to affirm.

     In 2014, the Court of Appeals wrote that sufficient evidence of a
serious difficulty controlling sex-offending conduct may not consist
of such “meager material” as that a sex offender did not make efforts
to avoid arrest and re-incarceration, but instead must include a
“detailed psychological portrait of a sex offender [to] allow an
expert to determine the level of control the offender has over his
sexual conduct” (id.). Shortly thereafter, the First Department in
Matter of State of New York v Frank P. (126 AD3d 150), relying on
Donald DD., held that the evidence on which the State experts relied
was insufficient to establish by clear and convincing evidence that
respondent has or will have serious difficulty controlling his
behavior, where “respondent spent 33 consecutive years in prison and
there is no evidence that he engaged in any inappropriate sexual
behavior during that prolonged period to suggest that he had serious
difficulty controlling his behavior in such an environment. Instead,
[respondent] voluntarily attended anger management and sex offender
treatment programs while in prison” (id. at 163).

     Here, during respondents’ direct examination of their expert, Dr.
Allison T. Prince, she was specifically asked to provide her opinion
on why petitioner has serious difficulty controlling his behavior. In
response, she listed only four factors: (1) the chronic nature of the
offenses, including the fact that they started at a young age; (2) the
fact that he offended despite the likelihood of being caught; (3) his
previous criminal sanctions, including incarceration; and (4) his
history of offending in a secure environment.

     In our view, those factors are insufficient to establish by clear
and convincing evidence “that [petitioner] had ‘serious difficulty in
controlling’ his sexual misconduct within the meaning of section 10.03
(i)” (Donald DD., 24 NY3d at 187). With respect to the second and
third factors, as we previously noted, the Court of Appeals made it
clear that evidence of serious difficulty cannot consist of such
“meager material” as a failure to make efforts to avoid arrest and re-
incarceration (id. at 188). As for the fourth factor, although there
is some evidence that petitioner “sexually acted out” while imprisoned
in the mid-1980’s, the record is also clear that from 2000 to the
present petitioner has not had any instances of sexual misconduct and
has not engaged in any “proxy” behaviors - behaviors that mimic
aspects of a person’s sexual offenses - while in a secure facility.
The events contemplated by the fourth factor occurred approximately 30
years ago, well prior to the offenses that led to petitioner’s current
confinement. Those instances can hardly support the conclusion “that
petitioner currently suffers from a ‘mental abnormality’ ” (Matter of
Groves v State of New York, 124 AD3d 1213, 1214 [emphasis added]).
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                                                         CA 15-00538

     As for the first factor, there is no dispute that petitioner has
a lengthy criminal history of sex offenses dating back to the 1970’s.
These offenses, in Dr. Prince’s view, followed a “script” or a pattern
in which petitioner would form a relationship with a prostitute, stalk
her, fantasize about the attack, plan the attack, and then complete
the attack. Nevertheless, Dr. Prince did not provide a connection
between the number of victims and the “serious difficulty” standard.
In any event, while in Donald DD. there were certainly fewer victims
and fewer crimes than here, in Frank P., the respondent “was convicted
of raping and sodomizing four women in their homes, and accused of
raping seven more women” (Frank P., 126 AD3d at 151). On those facts,
the First Department, relying heavily on Donald DD., determined that
“the inferences that logically flow from [the] evidence [were]
insufficient to support a determination, under the clear and
convincing evidence standard, that respondent has or will have serious
difficulty controlling his sexual behavior” (id. at 163). Simply put,
as in Frank P., it is impossible to conclude on this record whether
the number of victims means that petitioner had “difficulty in
controlling his urges or simply decided to gratify them” (Donald DD.,
24 NY3d at 188).

     Although the majority is correct that respondents “elicited
significant additional information concerning petitioner’s
predispositions from Dr. Prince throughout the trial,” we disagree
with the majority’s view that Dr. Prince “testified that such
information factored into her . . . opinion that petitioner had the
requisite serious difficulty in controlling his sexual conduct.” The
issue of “serious difficulty” was not the only issue at the hearing
and therefore not the only issue discussed by Dr. Prince; she provided
testimony on the “mental abnormality” question along with testimony on
the issue of whether petitioner is currently a dangerous sex offender
requiring confinement. In our view, it is entirely speculative to
conclude that the additional information provided by Dr. Prince was
intended to address the serious difficulty question, and she simply
failed to provide the connection suggested by the majority.

     Finally, we note our disagreement with the majority’s view of the
record and the testimony of Dr. Prince that petitioner never completed
a sex offender treatment program and has become stagnant in his
current programs. Dr. Prince testified that one of petitioner’s
treatment providers told her that petitioner had “ ‘maxed out’ of the
treatment opportunities at the facility, because he . . . engaged in .
. . mostly all of the groups that they offer.” Moreover, the record
is clear that petitioner is currently in phase III of his treatment
and has been recommended for the final phase of treatment and
apparently could proceed to phase IV if he took a third PPG test and a
polygraph. In the four-phase treatment program provided by Office of
Mental Health (OMH) secure facilities, “[p]hase III . . . requires
participants to meet goals that demonstrate the ability to utilize
skills and insights acquired earlier in the program. Upon completing
these goals and maintaining them for six months or longer,
participants may enter phase IV, which addresses individualized
discharge planning for the transition back to the community. As of
October 2011, approximately 270 residents of [OMH secure facilities]
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                                                         CA 15-00538

were participating in the OMH program; fewer than 30 had reached phase
III and only one . . . was in phase IV” (Matter of Charles A. v State
of New York, 101 AD3d 1535, 1537). In our view, petitioner’s presence
in phase III shows that he has made progress and has some level of
understanding of his prior offenses and actions, and the so-called
stagnancy of petitioner’s treatment was not completely explained by
Dr. Prince, who simply concluded that “[y]ou can still glean
additional information from attending these [therapy] groups again.”




Entered:   December 31, 2015                    Frances E. Cafarell
                                                Clerk of the Court
