This memorandum is uncorrected and subject to revision before

publication in the New York Reports.

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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

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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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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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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.

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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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(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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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]). 

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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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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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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).

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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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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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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

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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

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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

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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

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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

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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

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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

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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

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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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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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