author: Pigott, J. Graffeo, J.

text:
    [21 NE3d 239, 996 NYS2d 610]
    In the Matter of State of New York, Respondent, v Donald DD., Appellant. In the Matter of State of New York, Respondent, v Kenneth T., Appellant.
    Argued September 18, 2014;
    decided October 28, 2014

      POINTS OF COUNSEL

      George J. Hoffman, Jr., Albany, for appellant in the first above-entitled proceeding.
    Donald DD.’s diagnosis with antisocial personality disorder, together with his minimal sexual offense history and the absence of an accompanying diagnosis with a sexual based disorder, cannot support the statutorily required finding of mental abnormality. (Kansas v Hendricks, 521 US 346; Kansas v Crane, 534 US 407; Foucha v Louisiana, 504 US 71; Matter of State of New York v Shannon S., 20 NY3d 99; Matter of State of New York v Floyd Y., 22 NY3d 95; Matter of State of New York v Enrique D., 22 NY3d 941; United States v Wilkinson, 646 F Supp 2d 194; United States v Begay, 880 F Supp 2d 707; United States v Graham, 683 F Supp 2d 129; United States v Timms, 664 F3d 436.)

      Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Treasure, Barbara D. Underwood, Andrea Oser and Nancy A. Spiegel of counsel), for respondent in the first above-entitled proceeding.
    The jury’s verdict that Donald DD. suffers from a mental abnormality is soundly based and should not be disturbed. (Morales v County of Nassau, 94 NY2d 218; Matter of State of New York v Shannon S., 20 NY3d 99; United States v Caporale, 701 F3d 128; Brown v Watters, 599 F3d 602; Drake v Portuondo, 321 F3d 338; Young v Murphy, 615 F3d 59; Adams v Bartow, 330 F3d 957; Linehan v Milczark, 315 F3d 920; McGee v Bartow, 593 F3d 556; Kansas v Hendricks, 521 US 346.)

      Lesley M. DeLia, Mental Hygiene Legal Service, Mineóla (Ana Vuk-Pavlovic and Dennis B. Feld of counsel), for appellant in the second above-entitled proceeding.
    Where the State’s expert assigned paraphilia not otherwise specified to Kenneth T. based on nothing more than his past sex crimes, and where the testimony did not show that antisocial personality disorder caused Kenneth T. to sexually offend or even that it was properly diagnosed, the evidence was legally insufficient to support a finding that Kenneth T. had a mental abnormality. (Addington v Texas, 441 US 418; Humphrey v Cady, 405 US 504; Matter of

      State of New York v Floyd Y., 22 NY3d 95; Kansas v Hendricks, 521 US 346; Vitek v Jones, 445 US 480; Foucha v Louisiana, 504 US 71; Kansas v Crane, 534 US 407; Varner v Monohan, 460 F3d 861; People v C.M., 23 Misc 3d 1125[A], 2009 NY Slip Op 50935[U]; Matter of Storar, 52 NY2d 363.)

      Eric T. Schneiderman, Attorney General, New York City (.Bethany A. Davis Noll, Barbara D. Underwood and Steven C. Wu of counsel), for respondent in the second above-entitled proceeding.
    I. Kenneth TVs categorical challenge to his psychiatric diagnoses does not undermine Supreme Court’s mental abnormality finding. (Matter of State of New York v Shannon S., 20 NY3d 99; Daubert v Merrell Dow Pharmaceuticals, Inc., 509 US 579; People v Wesley, 83 NY2d 417; Matter of George L., 85 NY2d 295; People v Brown, 97 NY2d 500; Adamy v Ziriakus, 92 NY2d 396; United States v Barrow, 400 F3d 109; Crawford v Merrill Lynch, Pierce, Fenner & Smith, 35 NY2d 291; Board of Educ. of Belmont Cent. School Dist. v Gootnick, 49 NY2d 683; People v Jovanovic, 263 AD2d 182.) II. The unrebutted evidence at trial more than adequately supports Supreme Court’s finding of mental abnormality. (Matter of Hofbauer, 47 NY2d 648; United States v Carta, 592 F3d 34; Young v Murphy, 615 F3d 59.)
   OPINION OF THE COURT

Pigott, J.

In Matter of State of New York v Donald DD., we hold that, in a Mental Hygiene Law article 10 trial, evidence that a respondent suffers from antisocial personality disorder cannot be used to support a finding that he has a mental abnormality as defined by Mental Hygiene Law § 10.03 (i), when it is not accompanied by any other diagnosis of mental abnormality. We dismiss the proceeding in Matter of State of New York v Kenneth T. on the ground of legal insufficiency. We begin our discussion with that appeal.

L

On December 16,1982, respondent Kenneth T., 27, brandished a knife and forced a 17-year-old girl to accompany him to a rooftop, where he raped her. He also stole her coat. Kenneth T. was arrested after being seen wearing the coat, and his victim identified him in a lineup. In November 1983, following trial, he was convicted of rape in the first degree, robbery in the first degree, and possession of stolen property in the third degree, and sentence was imposed.

In September 1999, Kenneth T. was conditionally released to parole, having served some 17 years in prison. On October 31, 2000, Kenneth T., while employed at a university cafeteria, offered a female student a ride to the train station. He drove to a parking lot, ordered the woman out of his car, threw her to the ground, and attempted to rape her. The woman resisted, biting one of Kenneth T.’s fingers when he tried to cover her mouth and leaving a bite mark on the finger. She was able to escape when a passerby observed the commotion. Kenneth T. was arrested, and pleaded guilty to attempted rape in the first degree. In January 2001, he was sentenced to eight years’ imprisonment to be followed by five years’ postrelease supervision.

During his incarcerations, Kenneth T. incurred disciplinary “tickets,” the most serious offenses being assault on staff, disobeying a direct order, and harassment, and he was removed from sex offender counseling for disciplinary reasons on three occasions. However, he was not accused of any sexual “acting out” while in prison.

IL

In October 2008, as he was about to be released to postrelease supervision, the State commenced this civil commitment proceeding against Kenneth T. under Mental Hygiene Law article 10. At a probable cause hearing, Dr. Paul Etu, a board-certified psychologist who had interviewed Kenneth T. and reviewed his records, testified that in his opinion Kenneth T. suffered from a mental abnormality as defined by Mental Hygiene Law § 10.03 (i). Among other things, Dr. Etu testified that Kenneth T. had told him that he had difficulty controlling his sexual impulses. Supreme Court found probable cause to believe that Kenneth T. was a sex offender requiring civil management.

Following the hearing, Kenneth T. was committed to a secure treatment facility pending the conclusion of the article 10 proceeding. In June 2010, a bench trial was held in Supreme Court, pursuant to Mental Hygiene Law § 10.07, on the issue of whether Kenneth T. suffered from a mental abnormality within the meaning of Mental Hygiene Law § 10.03 (i).

The State presented a licensed psychologist, Dr. Stuart Kirschner, who had interviewed Kenneth T. and reviewed his records. Dr. Kirschner opined that Kenneth T. had two disorders that, together, predisposed him to the commission of conduct constituting a sex offense and resulted in his having serious difficulty in controlling that conduct: “paraphilia™ not otherwise specified” (paraphilia NOS) and “antisocial personality disorder” (ASPD).

Dr. Kirschner defined “paraphilia NOS” using the “broad criteria” that characterize paraphilia in general: “sexual fantasies, urges or behaviors directed ... at inanimate objects or non-consenting partners or minors.” Specifically, Dr. Kirschner testified that in his opinion Kenneth T. had “sexual fantasies, urges or behaviors involving non-consenting partners.” Challenged on cross-examination as to whether he could diagnose paraphilia NOS without any direct evidence that Kenneth T. was sexually aroused by nonconsensual sexual activity, Dr. Kirschner suggested that such arousal could be inferred simply from “the way [Kenneth T.] conducted himself during . . . the two offenses.” However, Dr. Kirschner admitted that he was “not sure” whether Kenneth T. found the nonconsensual aspect of his crimes sexually arousing.

With respect to ASPD, Dr. Kirschner testified that this disorder is characterized by “violations of the law, disregard for the truth, lack of remorse, irritability and aggressiveness,” as well as “irresponsibility in the sense that the person does not meet financial responsibilities.” Dr. Kirschner opined that Kenneth T. met “[p]retty much all of’ these criteria of ASPD.

Dr. Kirschner conceded that ASPD could be found in most prison inmates (“probably ... 80 percent”). He also testified that ASPD does not “in and of itself’ show mental abnormality as defined by Mental Hygiene Law article 10.

Dr. Kirschner attached special significance to the fact that, in his view, Kenneth T. suffered both from paraphilia and from ASPD. He testified that the paraphilia predisposed Kenneth T. to commit rape, and his ASPD gave rise to a serious difficulty in controlling the urge to rape. Dr. Kirschner identified Kenneth T.’s ASPD with a lack of “ability to think before he acts,” “internal [braking] mechanism,” or “internal controls such as a conscience that might curb his impulses.”

As evidence that Kenneth T. had serious difficulty in controlling his sexual misconduct, Dr. Kirschner identified two factors. The first was that Kenneth T. carried out offenses in circumstances that would allow for his identification by the victims. (In particular, Kenneth T. committed the first offense in a neighborhood that he frequented, and afterwards wore a coat he had taken from the victim, while the second victim was a woman who knew Kenneth T. and could easily give the police information leading to his arrest.) The second was the fact that Kenneth T. attempted the second rape despite having spent some 17 years in prison for the earlier crime.

Following the bench trial, Supreme Court concluded that Kenneth T. had a condition, disease or disorder that predisposed him to the commission of conduct constituting a sex offense and resulted in his having serious difficulty in controlling such conduct. Kenneth T. moved to set aside the verdict, arguing that the evidence was legally insufficient. Kenneth T. contended that Dr. Kirschner believed him to have a mental abnormality under Mental Hygiene Law article 10 purely on the basis of his crimes — crimes that in themselves did not distinguish him adequately from recidivist rapists who do not suffer from mental abnormality of this kind. Supreme Court denied the motion.

A dispositional hearing was held, pursuant to Mental Hygiene Law § 10.07 (f), and Supreme Court found that Kenneth T. suffered from a mental abnormality involving such a strong predisposition to commit sex offenses, and such an inability to control behavior, that he was likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility (see Mental Hygiene Law § 10.03 [e]). Accordingly, Supreme Court ordered that Kenneth T. be confined.

Kenneth T. appealed. The Appellate Division affirmed Supreme Court’s order (106 AD3d 829 [2d Dept 2013]), ruling that “Supreme Court’s finding that the State established, by clear and convincing evidence, that the appellant suffers from a ‘mental abnormality,’ as that term is defined in Mental Hygiene Law § 10.03 (i), was warranted by the facts” (id. at 830).

We granted Kenneth T. leave to appeal, and now reverse.

m.

On July 26, 2002, respondent Donald DD., then 18, had sexual intercourse with a 14-year-old acquaintance. As she later recalled, she “fell for his wit and . . . had sex with him.” Donald DD. then asked the girl whether her 12-year-old cousin would have sex with him. The younger girl was afraid, and did not resist when Donald DD. partially inserted his penis into her vagina. The two girls told the authorities what had occurred, and Donald DD. was arrested. At the time, Donald DD. was on probation, following a conviction of criminal contempt in the second degree for violating an order of protection obtained against him by an ex-girlfriend.

Donald DD. pleaded guilty to rape in the second degree (Penal Law § 130.30 [1] [being 18 years old or more, he or she engages in sexual intercourse with another person less than 15 years old]), attempted rape in the second degree (under the same statute), and endangering the welfare of a child. In January 2004, he was convicted and sentenced to six months’ imprisonment and 10 years’ probation.

On July 1, 2004, after release from prison, Donald DD. persuaded a young woman, a close friend of his wife, to accompany him on a walk to a local cemetery. There, he kissed the woman and, ignoring her repeated protests, had sexual intercourse with her. Afterwards, the woman returned to Donald DD.’s house with him; when she was leaving, he said he knew she was “good at keeping secrets” and added that they would “both be in trouble” if she revealed what had happened. The young woman, however, sought medical help and gave a statement to the police. Donald DD. was arrested.

Donald DD. pleaded guilty to sexual abuse in the second degree. He was sentenced to six months’ imprisonment; he remained on probation upon release. Donald DD.’s probation was revoked in the summer of 2006, after he was arrested following an incident in which he threw stones or rocks at an acquaintance’s car, injuring a passenger.

In April 2007, Donald DD. was resentenced on the January 2004 convictions, to 1 to 3 years’ imprisonment. He participated in sex offender treatment while incarcerated.

In the spring of 2008, Donald DD. was evaluated for civil management under Mental Hygiene Law article 10. A psychiatric examiner, Dr. Mark Cederbaum, opined that Donald DD. suffered from ASPD, but did not have a mental abnormality within the meaning of Mental Hygiene Law § 10.03 (i).

Donald DD. was conditionally released to parole supervision in June 2008. Donald DD.’s special conditions of release included that he “not be in contact with” anyone under 18, “without the presence of an adult.” Donald DD. and his wife had two children, a five-year-old boy and a three-year-old girl. His wife’s sister had primary physical custody of the children, but they spent weekends at the apartment in which Donald DD. and his wife lived. In December 2008, the state police and the county child protective services investigated allegations by Donald DD.’s children that one evening when he was alone with them, Donald DD. had touched their “privates” and encouraged them to touch each other’s and his “privates.” Additionally, Donald DD.’s wife told the police that on occasions when she did not want to have sex with Donald DD., he would force himself on her.

The District Attorney decided not to pursue criminal charges against Donald DD. However, his parole was revoked, and he was returned to custody to serve the remainder of his 2007 maximum sentence.

IV

In June 2009, the State commenced this civil commitment proceeding against Donald DD. under Mental Hygiene Law article 10. Following a probable cause hearing, Donald DD. was committed to a secure treatment facility pending the conclusion of the proceeding. On March 2, 2010, a jury trial commenced in Supreme Court, pursuant to Mental Hygiene Law § 10.07, on the issue of whether Donald DD. suffered from a mental abnormality as defined by Mental Hygiene Law § 10.03 (i).

The State presented two licensed psychologists, Dr. Christopher Kunkle and Dr. Richard Hamill, as witnesses, both of whom had interviewed Donald DD. and reviewed his records. Dr. Kunkle and Dr. Hamill opined that Donald DD. suffered from ASPD, defined as set forth above. They described the disorder as “characterized by a pervasive pattern of disregard for others and violation of the law” and testified that an individual who meets at least three of seven specific criteria may be diagnosed with the disorder. The criteria, as the State’s experts explained, may be summed up as: failure to conform to social norms and laws, impulsivity, aggressiveness, disregard for the safety of self or others, lack of remorse, deceitfulness, and irresponsibility. Dr. Kunkle concluded that Donald DD. had all seven traits, while Dr. Hamill concluded that he had at least six.

Dr. Kunkle noted that “a very small portion of individuals with antisocial personality disorders . . . are actually incarcerated for a sexual offense,” estimating that the proportion was 7%. As he explained, “[s]ome sex offenders have antisocial personality disorder, some don’t. Some with antisocial personality disorder commit sex offenses and some don’t.” However, Dr. Kunkle stated that Donald DD.’s ASPD predisposed him to commit conduct constituting a sex offense:

“In [Donald DD.’s] case, his disorder predisposes him in a way because his behavior has shown you that. His behavior has shown you what goes on inside his mind, and he acts upon the urges that he has. When [Donald DD.] has a sexual urge towards 12 and 14 year old girls, a wife’s friend, his own children, he acts upon that urge and neglects the laws that govern.”

Asked about the concept of paraphilia, Dr. Kunkle testified that he had not diagnosed Donald DD. with paraphilia, which he defined as “a sexual disorder where the person has abnormal sexual interests.” He opined that, although ASPD is not a paraphilia, it can nevertheless be a mental abnormality within the meaning of Mental Hygiene Law § 10.03 (i). He testified that

“[i]f someone has antisocial personality disorder and they showed a pattern where they continuously act in a way that they violate laws and those violations are sexual, then they have shown that through their antisocial personality disorder they are predisposed to commit sexual crimes.”

Dr. Kunkle further opined that Donald DD.’s ASPD resulted in his having serious difficulty in controlling his sex-offending conduct. He pointed to Donald DD.’s tendency to commit both sexual and non-sexual offenses, in spite of past incarcerations, despite sex offender treatment, and while on probation, as evidence that the ASPD was “driving” his illegal actions.

Consistently with Dr. Kunkle’s testimony, Dr. Hamill observed that “the large majority, 93 percent of those diagnosed with [ASPD,] are not sex offenders.” Dr. Hamill accepted the proposition that ASPD does not “in and of itself predispose a person to commit conduct constituting a sex offense.” Nonetheless, he opined that ASPD predisposed Donald DD. to engage in conduct constituting a sex offense. Asked what had led him to this conclusion, Dr. Hamill mentioned the fact that Donald DD.’s victims were “male and female and in three major age groups.”

Dr. Hamill further opined that Donald DD.’s ASPD resulted in his having serious difficulty in controlling his sex-offending conduct. He testified that the ASPD affected Donald DD.’s emotional, cognitive, and volitional capacities: “predisposing] him to act out impulsively in an aggressive manner,” creating “cognitive distortions,” and inhibiting his “ability to control [his] behavior and keep it according to . . . [his] sense of right and wrong.”

Finally, the State called Dr. Mark Cederbaum, who had examined Donald DD. in 2008 and found no mental abnormality. Dr. Cederbaum stated that he could no longer stand by his original opinion, especially in light of the recent allegations that Donald DD. had sexually abused his own children and engaged in spousal rape.

For his part, Donald DD. presented the testimony of a licensed psychologist, Dr. Joseph J. Plaud, who had also examined Donald DD. and reviewed his records. Dr. Plaud opined that there was no evidence that Donald DD. suffered from a condition that predisposed him to commit sex offenses and caused him to have serious difficulty controlling this conduct. Rather, Dr. Plaud saw Donald DD. as an opportunistic offender.

With respect to ASPD, Dr. Plaud opined that the condition “is not particular to sexual control. I would say the vast majority of individuals in all the state prisons in this state could be diagnosed with antisocial personality disorder. By definition they all have difficulty conforming their behavior to the law.” He explained that ASPD can act “in combination with ... a diagnosable sexual disorder, and . . . can add extra fuel to the fire, if you will,” but cannot “in and of itself . . . predict sexual impulse control.”

Donald DD. himself testified, admitting to the sexual crimes involving the 14 year old and 12 year old but protesting that he had not known their ages, and insisting that the sexual activity with his wife’s friend in the cemetery had been consensual.

The jury found that Donald DD. had a condition, disease or disorder that predisposed him to the commission of conduct constituting a sex offense and resulted in his having serious difficulty in controlling such conduct. Donald DD. moved to set aside the verdict, contending, inter alia, that ASPD is an inapplicable predicate for a finding of mental abnormality because it is “not a sexual disorder.” Supreme Court denied the motion.

Following a dispositional hearing, Supreme Court found that Donald DD. suffered from a mental abnormality involving such a strong predisposition to commit sex offenses, and such an inability to control behavior, that he was likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility. Accordingly, Supreme Court ordered that Donald DD. be confined.

Donald DD. appealed, again challenging the use of ASPD as a basis for the jury’s finding of mental abnormality.

The Appellate Division affirmed Supreme Court’s order (107 AD3d 1062 [3d Dept 2013]), holding that a mental condition need not itself have any sexual component in order to predispose a person to the commission of conduct constituting a sex offense and result in that person’s having serious difficulty in controlling such conduct. The Appellate Division reasoned that ASPD

“affects the emotional and volitional capacity of its sufferers by predisposing them to act upon their urges in an aggressive manner. Petitioners’ experts found respondent to have inappropriate sexual urges given his pattern of engaging in sex offenses, and that the disorder caused him to disregard any restraints he may have had against acting upon them. Those experts further opined that respondent’s repeated commission of sex offenses demonstrated his serious difficulty in restraining those impulses, particularly because he acted upon them despite knowing that he was under supervision and having already undergone sex offender treatment” {id. at 1064 [internal quotation marks omitted]).

We granted Donald DD. leave to appeal, and now reverse.

V

Kenneth T.’s article 10 trial differed from Donald DD.’s in that the factfinder heard evidence that Kenneth T. suffered not only from ASPD but also from paraphilia NOS. In Matter of State of New York v Shannon S. (20 NY3d 99 [2012]), this Court held that “any issue pertaining to the reliability of paraphilia NOS as a predicate condition for a finding of mental abnormality” may be “viewed as a factor relevant to the weight to be attributed to the diagnosis, an issue properly reserved for resolution by the factfinder” (id. at 107). The Court observed that

“[a]ny professional debate over the viability and reliability of paraphilia NOS is subject to the adversarial process which, by vigorous cross-examination, would expose the strengths and weaknesses of the professional medical opinions offered in reaching a considered legal determination as to whether a respondent suffers a mental abnormality, as defined by statute” (id. [internal quotation marks omitted]).

Paraphilia NOS is a controversial diagnosis. It is listed in the current edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, but only as a “catch-all” category for paraphilias that are not specifically enumerated elsewhere in the manual because they are “less frequently encountered” (American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 567 [4th ed Text Rev 2000]). The examples given include necrophilia (sexual attraction to corpses) and zoophilia (sexual attraction to animals) (see id. at 576). In the dissent in Shannon S., three members of this Court who are now in the majority stated our view that the paraphilia NOS diagnosis presented by Dr. Kirschner and another expert witness in that case “ amount [ed] to junk science devised for the purpose of locking up dangerous criminals” and we expressed “grave doubt” whether such a “diagnosis would survive a Frye hearing to determine whether it is ‘sufficiently established to have gained general acceptance’ in the psychiatric community” (Shannon S., 20 NY3d at 110 [Smith, J., dissenting, joined by Lippman, Ch. J., and Pigott, J.], quoting Frye v United States, 293 F 1013, 1014 [DC Cir 1923]).

Nonetheless, we do not overrule Shannon S. The doctrine of stare decisis governs here, ££rest[ing] upon the principle that a court is an institution, not merely a collection of individuals, and that governing rules of law do not change merely because the personnel of the court changes” (People v Bing, 76 NY2d 331, 338 [1990]). Stare decisis is “the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process” (Payne v Tennessee, 501 US 808, 827 [1991]). We perceive no compelling justification for overruling Shannon S.’s holding that a diagnosis of paraphilia NOS was sufficient to support a finding of mental abnormality on the record in that case. We did not, however, decide in Shannon S. the question that would be decided at a Frye hearing: whether the diagnosis of paraphilia NOS, as testified to by the State’s experts, has received general acceptance in the psychiatric community. Nor do we decide that question today, because here, as in Shannon S., no Frye hearing was requested or held.

In the present case, it is unnecessary for us to decide any issue concerning paraphilia NOS, because we need not decide whether there was legally sufficient evidence that Kenneth T. had a condition “that predispose[d] him ... to the commission of conduct constituting a sex offense” within the meaning of Mental Hygiene Law § 10.03 (i). Rather, we hold that, even assuming that mental abnormality was demonstrated to that extent, there was not clear and convincing evidence that Kenneth T. had “serious difficulty in controlling” his sexual misconduct within the meaning of section 10.03 (i).

As evidence that Kenneth T. had serious difficulty in controlling conduct amounting to sex offenses, Dr. Kirschner identified the fact that Kenneth T. carried out both offenses in a way that would allow for identification by his victims, and the fact that he attempted the second rape despite having spent many years in prison for the earlier crime. It is evident that circumstances of this nature are insufficient to show, by clear and convincing evidence, that a person has serious difficulty in controlling his sexual urges within the meaning of Mental Hygiene Law § 10.03 (i). 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.

Undoubtedly, sex offenders in general are not notable for their self-control. They are also, in general, not highly risk-averse. But beyond these truisms, it is rarely if ever possible to say, from the facts of a sex offense alone, whether the offender had great difficulty in controlling his urges or simply decided to gratify them, though he knew he was running a significant risk of arrest and imprisonment.

We do not decide on this occasion from what sources sufficient evidence of a serious difficulty controlling sex-offending conduct may arise, but they cannot consist of such meager material as that a sex offender did not make efforts to avoid arrest and re-incarceration. A detailed psychological portrait of a sex offender would doubtless allow an expert to determine the level of control the offender has over his sexual conduct. However, Dr. Kirschner’s testimony that Kenneth T. lacked “internal controls such as a conscience that might curb his impulses” is not a basis from which serious difficulty in controlling sexual conduct may be rationally inferred. It is as consistent with a rapist who could control himself but, having strong urges and an impaired conscience, decides to force sex upon someone, as it is with a rapist who cannot control his urges. Even viewed in the light most favorable to the State, this testimony is legally insufficient to support the conclusion that Kenneth T.’s mental conditions resulted in his having serious difficulty in controlling conduct constituting a sex offense. Therefore, the State’s petition against Kenneth T. under Mental Hygiene Law article 10 should be dismissed.

VL

Donald DD.’s appeal presents us with an opportunity to decide a question left open in Matter of State of New York v John S. (23 NY3d 326 [2014]), namely whether a civil commitment under Mental Hygiene Law article 10 may be based solely on a diagnosis of ASPD, together with evidence of sexual crimes. We hold that it cannot.

The United States Supreme Court, in its rulings upholding a Kansas civil confinement statute against constitutional challenge (see Kansas v Hendricks, 521 US 346 [1997]; Kansas v Crane, 534 US 407 [2002]), has held that as a matter of substantive due process the evidence of a respondent’s “serious difficulty in controlling behavior . . . 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, must be sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case” (Crane, 534 US at 413 [emphasis added]; see also Hendricks, 521 US at 360). “That distinction is necessary lest ‘civil commitment’ become a ‘mechanism for retribution or general deterrence’ — functions properly those of criminal law, not civil commitment” (Crane, 534 US at 412, quoting Hendricks, 521 US at 373 [Kennedy, J., concurring]). We must interpret the Mental Hygiene Law article 10 statute on the assumption that it accords with these constitutional requirements.

In his testimony in the Kenneth T. trial, the State’s expert Dr. Kirschner said that the proportion of people currently in prison (or who have been imprisoned) who could be diagnosed with ASPD is “probably about as high as 80 percent.” The Supreme Court and other courts have postulated figures ranging from 40% to 70% (see e.g. Crane, 534 US at 412, citing P Moran, The Epidemiology of Antisocial Personality Disorder, 34 Soc Psychiatry & Psychiatric Epidemiology 231, 234 [1999] [40-60% of male prison population diagnosable with ASPD]; United States v Wilkinson, 646 F Supp 2d 194, 209 [D Mass 2009], citing Jack Vognsen & Amy Phenix, Antisocial Personality Disorder is Not Enough: A Reply to Sreenivasan, Weinberger, and Garrick, 32 J Am Acad Psychiatry L 440, 442 [Dec. 2004] [50-70%]).

These statistics are compelling. A diagnosis of ASPD alone— that is, when the ASPD diagnosis is not accompanied by a diagnosis of any other condition, disease or disorder alleged to constitute a mental abnormality — simply does not distinguish the sex offender whose mental abnormality subjects him to civil commitment from the typical recidivist convicted in an ordinary criminal case. ASPD “means little more than a deep-seated tendency to commit crimes” (Shannon S., 20 NY3d at 110 [Smith, J., dissenting, joined by Lippman, Ch. J., and Pigott, J.]). Its use in civil confinement proceedings, as the single diagnosis underlying a finding of mental abnormality as defined by Mental Hygiene Law article 10, proves no sexual abnormality. It therefore cannot be the sole diagnosis that grounds such a finding.

We believe that an ASPD diagnosis has so little relevance to the controlling legal criteria of Mental Hygiene Law § 10.03 (i) that it cannot be relied upon to show mental abnormality for article 10 purposes. As Donald DD.’s counsel expressed the objection, ASPD is “not a sexual disorder.” Our conclusion is not based on research that is outside of the record, or our own armchair psychology, or even common sense (though all of these point in the same direction). Instead, we base it on the expert testimony in the appeals before us.

The State’s expert in the Kenneth T. case, Dr. Kirschner, testified that ASPD does not “in and of itself” show mental abnormality as defined by Mental Hygiene Law article 10. Dr. Hamill, the State’s expert in Donald DD., conceded that ASPD does not “in and of itself predispose a person to commit conduct constituting a sex offense,” noting, along with his co-witness, that a very small proportion — 7%—of individuals with ASPD are convicted of a sexual offense. Dr. Plaud, testifying for Donald DD., opined that while ASPD can act “in combination with . . . a diagnosable sexual disorder” to produce a potent abnormal condition, it cannot “in and of itself . . . predict sexual impulse control.”

We do not believe that the experts were merely stating the obvious truth that a diagnosis of ASPD without any evidence of sexual crimes is insufficient to show mental abnormality. Rather, it is clear that the experts — even experts whose usual role is to testify that a respondent suffers from a mental abnormality for article 10 purposes — agree, when pressed, that ASPD alone is not a “condition, disease or disorder that affects the emotional, cognitive, or volitional capacity of a person in a manner that predisposes him or her to the commission of conduct constituting a sex offense and that results in that person having serious difficulty in controlling such conduct” (Mental Hygiene Law § 10.03 [i] [emphasis added]).

Our conclusion is not that ASPD is in itself an unreliable diagnosis rejected by the psychiatric profession. ASPD is not analogous to the diagnoses we considered hypothetically in Shannon S. that are “premised on such scant or untested evidence and ... so devoid of content, or so near-universal in their rejection by mental health professionals, as to be violative of constitutional due process” (Shannon S., 20 NY3d at 106-107 [internal quotation marks and brackets omitted]). The problem is that ASPD establishes only a general tendency toward criminality, and has no necessary relationship to a difficulty in controlling one’s sexual behavior.

Finally, our conclusion does not conflict with the holding in Shannon S. The diagnosis of paraphilia NOS, whatever its strength or weakness as an evidentiary matter, is, at the very least, potentially relevant to a finding of predisposition to conduct constituting a sex offense. The same is not true of ASPD.

For the reasons stated above, Supreme Court erred in using an ASPD diagnosis, together with testimony concerning Donald DD.’s sex crimes, but without evidence of some independent mental abnormality diagnosis, to ground a finding of mental abnormality within the meaning of Mental Hygiene Law article 10.

Accordingly, in each appeal, the order of the Appellate Division should be reversed, without costs, and the petition dismissed.

Graffeo, J.

(dissenting in Donald DD. and concurring in Kenneth T.). In Matter of State of New York v Donald DD. we are presented with a jury verdict, rendered after a Mental Hygiene Law article 10 trial, determining that Donald DD. suffered from a mental abnormality. The diagnosis proffered by experts to support this finding was antisocial personality disorder (ASPD). I believe that ASPD may be a viable predicate for a determination of mental abnormality in certain cases since such a diagnosis is consistent with the statutory definition and its use in the article 10 context does not offend principles of substantive due process. I therefore dissent in Matter of State of New York v Donald DD.

A related issue is presented in Matter of State of New York v Kenneth T. Following a bench trial, Kenneth T. was found to have a mental abnormality. The State’s expert diagnosed Kenneth T. with ASPD and paraphilia not otherwise specified (NOS), based on his alleged attraction to nonconsenting partners. I agree with the majority that the State did not present legally sufficient evidence to support the finding of a mental abnormality in this case, but I rely on different grounds for the reversal.

L

In 2007, the legislature enacted the Sex Offender Management and Treatment Act (SOMTA) as part of “comprehensive reforms to enhance public safety” by authorizing the civil management of sex offenders (Senate Introducer’s Mem in Support, Bill Jacket, L 2007, ch 7 at 15). SOMTA was the result of a legislative determination that “[cjivil and criminal processes have distinct but overlapping goals, and both should be part of an integrated approach that is based on evolving scientific understanding, flexible enough to respond to current needs of individual [sex] offenders, and sufficient to provide meaningful treatment and to protect the public” (Mental Hygiene Law § 10.01 [a]). To that end, the legislature formulated a two-tiered civil management scheme for certain recidivistic sex offenders that “pose a danger to society” due to “mental abnormalities that predispose them to engage in repeated sex offenses” (id. § 10.01 [a], [b], [c]).

In an effort to balance the significant civil liberties and treatment needs of sex offenders with the State’s interest in protecting potential victims and preventing sexual assaults, Mental Hygiene Law article 10 contains a detailed procedure for the evaluation of detained sex offenders by mental health professionals before release from incarceration. The Office of Mental Health (OMH) initiates a case review of high risk offenders to assess whether any should be recommended for treatment in the community or civil commitment (see id. § 10.05 [a], [b], [d], [e]). Two levels of case review by qualified personnel are undertaken, which usually includes a psychiatric examination of the candidate, to identify sex offenders who may have a mental abnormality (see id. § 10.05 [d]-[f]). If the candidate is deemed eligible for civil management, OMH notifies the offender of this status (see id. § 10.05 [g]). OMH also submits its recommendation to the Attorney General’s Office, which may, in its discretion, file a petition seeking civil management of the offender (see id. §§ 10.05 [g]; 10.06 [a]). If a petition is filed, the candidate for civil commitment receives appointed counsel and, within 30 days, the court holds a hearing to determine whether there is probable cause to believe that the offender requires civil management (id. § 10.06 [c], [g], [k]). In the event that probable cause is found, a jury ultimately resolves the question “whether the respondent is a detained sex offender who suffers from a mental abnormality” (id. § 10.07 [a]). Thus, the statutory scheme requires that OMH, the Attorney General’s Office, and a jury determine, as a threshold matter, that a sex offender suffers from a mental abnormality before that individual may be subjected to any category of civil management.

Following a finding of mental abnormality and after the presentation of additional evidence, the court considers which of two available dispositions is appropriate: (1) strict and intensive supervision and treatment (SIST) or (2) civil confinement in an OMH facility (see id. § 10.07 [f]; Matter of State of New York v Nelson D., 22 NY3d 233, 238 [2013]). An offender ordered to participate in SIST returns to the community under the supervision of parole officers and must abide by specified conditions and comply with a course of treatment prescribed by the individual’s treating medical professional (see Mental Hygiene Law § 10.11 [a]).

If the court determines, by clear and convincing evidence, that the individual is a “[d]angerous sex offender requiring confinement,” it must order the person confined to a secure treatment facility (id. § 10.03 [e]; see id. § 10.07 [f]). In these cases, the court must find that the offender’s mental abnormality involves “such a strong predispostion 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” (id. §§ 10.03 [e]; 10.07 [f]).

Neither disposition, however, terminates the court’s review of an offender’s civil management program. An offender may petition the court for discharge at any time and is entitled to an annual review and an evidentiary hearing at least once each year (see id. § 10.09). These safeguards are designed to ensure that only persons who continue to suffer from mental abnormalities and cannot control their sexual misconduct remain subject to civil management.

I now turn to the cases before us.

IL

In Matter of State of New York v Donald DD., the majority holds that a detained sex offender cannot be subjected to civil management solely because the individual is diagnosed as suffering from antisocial personality disorder (ASPD) (see majority op at 188-191). I agree with this statement. The State cannot civilly confine or supervise someone under article 10 of the Mental Hygiene Law simply because that person has been diagnosed with a disorder or condition, paraphiliac or otherwise. Rather, under the Mental Hygiene Law and principles of due process, the State can only civilly manage a sex offender who has a mental abnormality, which requires not just the diagnosis of a predicate disorder but also proof that the disorder predisposes the offender to commit sexual misconduct related to serious difficulty controlling such behavior (see Mental Hygiene Law § 10.03 [i]).

As I read the majority’s opinion, it is declaring that because ASPD does not always predispose an individual to commit sex crimes, ASPD can never qualify as a predicate disorder in a civil management proceeding. The fundamental flaw in this view is that it equates a “congenital or acquired condition, disease or disorder” with a “mental abnormality,” thereby requiring that the predicate disorder itself inherently include the additional predisposition and impulse control elements of Mental Hygiene Law § 10.03 (i) (see majority op at 177, 190-191). This interpretation directly conflicts with the language of the statute and unduly narrows the definition of mental abnormality in a manner that principles of substantive due process do not require.

I begin my analysis with the federal case law that has served as the backdrop to the definition of “mental abnormality” in Mental Hygiene Law § 10.03 (i). In Kansas v Hendricks, the United States Supreme Court upheld a statute providing for the civil confinement of sexually violent predators who suffered from a “mental abnormality,” the definition of which was similar to that which was subsequently enacted in Mental Hygiene Law § 10.03 (i) (521 US 346, 352 [1997]). In rejecting a substantive due process challenge to the Kansas statute, the Supreme Court recognized that legal definitions of terms such as mental abnormality “need not mirror those advanced by the medical profession” (id. at 359). The Court therefore concluded that the civil confinement statute satisfied due process requirements because it did not predicate civil confinement on a finding of dangerousness alone but also required “proof of some additional factor, such as a . . . ‘mental abnormality’ ” that made it difficult for an offender to control dangerous sexual behavior (id. at 358-359). As applied to the facts in Hendricks, the Court held that the offender’s “admitted lack of volitional control, coupled with a prediction of future dangerousness, adequately distinguished] [him] from other dangerous persons who are perhaps more properly dealt with exclusively through criminal proceedings” (id. at 360).

Later, in Kansas v Crane (534 US 407 [2002]), the United States Supreme Court again reviewed Kansas’s confinement statute. In addressing a constitutional challenge, the Supreme Court clarified that, although a State must connect a mental condition and dangerousness finding to an inability to control sexual behavior, the State need not prove that a sex offender lacks total control over the offensive conduct (see id. at 410-413). A “serious difficulty in controlling behavior,” the Court postulated, can be adequate “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, ... to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case” (id. at 413). Significantly, the Court emphasized that “the States retain considerable leeway in defining the mental abnormalities and personality disorders that make an individual eligible for commitment” (id. [emphasis added]).

The adoption of New York’s civil management scheme reflects this federal precedent. The statute requires that all offenders subject to civil management, including SIST, must be found to have a mental abnormality as a threshold qualification. Mental Hygiene Law § 10.03 (i) 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 offense and that results in that person having serious difficulty in controlling such conduct.”

Article 10 authorizes civil confinement only of those sex offenders whose “mental abnormality” involves such a strong disposition to commit sexual misconduct and inability to control behavior that the person is dangerous to society (Mental Hygiene Law §§ 10.03 [e]; 10.07 [f]). Drawing from Hendricks and Crane, the statutory structure does not run afoul of substantive due process because it requires the State to prove that the individual is dangerous, and the dangerousness must be coupled with a mental abnormality, which — by definition— incorporates a requirement that the offender have serious difficulty with behavioral control. Thus, where the State’s evidence conforms to the statutory definition of a mental abnormality, i.e., the State shows that the offender suffers from any “congenital or acquired condition, disease or disorder” that predisposes the person to sexual misconduct and results in difficulty controlling sexual urges, due process is satisfied and the offender may be subjected to either SIST or civil confinement depending on the risk of danger to the community (id. § 10.03 [i]).

The majority concludes that ASPD “cannot be used to support a finding that [an offender] has a mental abnormality . . . when it is not accompanied by any other diagnosis of mental abnormality” (majority op at 177). The obvious flaw in this position is that a “congenital or acquired . . . disorder” is, under the language of Mental Hygiene Law § 10.03 (i), only one element of a mental abnormality finding — not the equivalent thereof. In conflating the predicate disorder with the mental abnormality, the majority implicitly injects a requirement that the underlying disorder be “sexually-related” into Mental Hygiene Law § 10.03 (i) on the mistaken premise that such a requirement is necessary to distinguish an offender subject to civil management from a “typical recidivist convicted in an ordinary criminal case” (majority op at 189). Neither the plain language of the statute nor due process compels this conclusion (see Mental Hygiene Law § 10.03 [i]; see generally Crane, 534 US at 411-414; Hendricks, 521 US at 357-360). Instead, it is the effect of the condition — sexually-related or not — on the offender’s capacities and ability to control sexual impulses that is key. Where a disorder predisposes a person to sex offending by impacting the individual’s cognitive, volitional, or emotional capacities, it is the interplay of these factors and the concomitant impulse control problems — not the inherently sexual nature of the predicate disorder — that distinguishes an offender subject to management from a “dangerous but typical recidivist” (Crane, 534 US at 413). Whether a disorder such as ASPD has the necessary effect on the offender to support a mental abnormality finding must therefore be determined on a case-by-case basis.

The majority’s misreading of the Mental Hygiene Law does not simply mean that a sex offender cannot be civilly confined where ASPD is the predicate disorder for a mental abnormality finding, although that is the result in this particular case. Because a finding of mental abnormality is a precursor to a determination of whether SIST is appropriate, the majority necessarily holds that offenders cannot be compelled to participate in SIST on the basis of an ASPD diagnosis. This outcome is unfortunate since the elimination of treatment after release into the community exposes these offenders to a greater risk of re-offending and is detrimental to the protection of the public.

The majority assures us that it is not basing its conclusion that ASPD is per se insufficient as a predicate disorder in the civil management context on research not properly before us or their “own armchair psychology” (majority op at 190). The majority purports to rely on the testimony of the State’s experts at Donald DD.’s mental abnormality trial (see majority op at 190). Dr. Hamill did concede that “ASPD does not ‘in and of itself predispose a person to commit conduct constituting a sex offense’ ” (majority op at 184). But the majority’s interpretation of this testimony as some type of concession that ASPD may never constitute a condition that predisposes an individual to sex offending is, at best, a mischaracterization of the stated opinion (see majority op at 190-191), and reflects its flawed equation of the predicate “disorder” or “condition” to a “mental abnormality” (Mental Hygiene Law § 10.03 [i]). Taking Dr. Hamill’s testimony in context, the expert was accurately stating that, absent evidence connecting an ASPD diagnosis to a predisposition for committing sex offenses and lack of control, such diagnosis, like any other, does not satisfy the statutory definition of mental abnormality. By contrast, where the additional mental abnormality elements are present, ASPD may be a valid diagnosis in a civil management case. For this reason, Dr. Hamill opined that Donald DD.’s ASPD did predispose him to commit sex offenses and caused him to have serious difficulty controlling his sexual impulses.

With regard to the majority’s concern that ASPD is too prevalent a diagnosis to distinguish sex offenders subject to civil management from the mental condition of many others in the prison population, it is the impaired impulse control that provides the necessary distinction. The prevalence of ASPD among non-sex offenders and whether ASPD generally predisposes all who suffer from it to the commission of sex offenses is irrelevant. Mental Hygiene Law § 10.03 (i) and due process require only that the State prove that the predicate disorder— here ASPD — affects the emotional, cognitive, or volitional capacity of the specific offender in such a manner that it predisposes the offender to commit sex offenses and have serious difficulty controlling sexual impulses (see Mental Hygiene Law § 10.03 [i]). In other words, the crucial distinction between other criminal recidivists and those subject to civil management is not whether the two categories of offenders carry a similar diagnosis but whether their mental condition — as evaluated by experts — affects them in such a way that the remaining mandatory elements of a mental abnormality are present.

Reading Mental Hygiene Law § 10.03 (i) within the confines of due process to permit the use of ASPD in the mental hygiene context does not permit the State to use article 10 to unjustly confine vast numbers of persons convicted of sex offenses. Although a certain percentage of the incarcerated may meet the diagnostic criteria for ASPD, the disorder concededly manifests in such a manner as to predispose the individual to the commission of sex offenses in a limited subset of ASPD sufferers (see majority op at 190). Those few who meet the ASPD diagnostic criteria and whose disorder manifests in such a way that the additional elements of a mental abnormality exist are sufficiently distinguishable from recidivists on a broader level. Notably, courts of other states have upheld civil confinement on an ASPD diagnosis standing alone (see Commonwealth v Mazzarino, 81 Mass App Ct 358, 369, 963 NE2d 112, 121 [2012], review denied 462 Mass 1109, 970 NE2d 333 [2012]; In re Civil Commitment of K.J.W., 2012 WL 5372393, *2-3, 2012 NJ Super Unpub LEXIS 2443, *3-7 [App Div 2012]; In re Detention of Shaw, 165 Wash App 1021 [2011]; In re Detention of Barnes, 689 NW2d 455, 459 [Iowa 2004]; In re Commitment of Adams, 223 Wis 2d 60, 65-71, 588 NW2d 336, 338-341 [Ct App 1998]). Despite the majority’s dissatisfaction with the implications of article 10, our analysis must be based on the law as the legislature and Governor saw fit to enact because the statute — and the viability of ASPD as a predicate disorder under the statutory definition of mental abnormality — comports with due process. Consequently, where the State presents clear and convincing evidence through expert testimony linking an offender’s ASPD to a predisposition for the commission of sex offenses and an inability to control his or her conduct, the mental abnormality finding should be upheld.

Examined in this light, the State’s evidence in Donald DD.’s case was clearly legally sufficient (see Matter of State of New York v John S., 23 NY3d 326, 349 [2014], rearg denied 24 NY3d 933 [2014]). Three psychologists, Drs. Hamill, Kunkle, and Cederbaum, diagnosed Donald DD. with ASPD and explained their basis for that diagnosis, namely Donald DD.’s criminal history, violent conduct, inability to maintain consistent long-term employment, failure to show remorse, and tendency to blame his victims. Although Drs. Kunkle and Hamill agreed that a diagnosis of ASPD does not automatically mean that an individual suffers from a mental abnormality, in Donald DD.’s case, they concluded that ASPD predisposed him to commit sex offenses because it caused him to act out in a sexually aggressive manner against victims ranging in age. In addition, Dr. Hamill testified that Donald DD.’s ASPD affected his cognition and “emotionality” so that he had “cognitive distortions,” which resulted in his inability to understand that his sexual misconduct was improper and allowed him to “give [himself] permission to act” in a sexually offensive manner. Drs. Kunkle and Hamill also testified that Donald DD. had serious difficulty controlling his sexual urges as a result of his ASPD, as evidenced by the early onset of his illegal sexual conduct, and his commission of sexual offenses while married and under parole or probation supervision. And, although Donald DD. presented an expert witness who disputed the State’s proof, this conflicting testimony presented a question for the factfinder to resolve. Accordingly, on this record, I would uphold the jury’s mental abnormality finding.

III.

Turning to the second case before us, in Matter of State of New York v Kenneth T., I agree that it is necessary to reverse the finding of mental abnormality on legal insufficiency grounds. I do not, however, concur with the majority that the State failed to present legally sufficient evidence to demonstrate that Kenneth T. had serious difficulty controlling his sexual impulses.

The evidence proffered to the factfinder at Kenneth T.’s trial established that he committed his first violent sex offense while on parole for a non-sex offense crime, during daylight hours and in an area that he frequented. Dr. Kirschner opined that these circumstances indicated that Kenneth T. had difficulty controlling his impulses because the likelihood that he would be recognized in an area that he frequented “did not serve as a deterrent,” as it perhaps would to a person who simply saw an opportunity to act out with impunity. Thus, Dr. Kirschner opined that Kenneth T. lacks sufficient impulse control and “has very little braking mechanism to stop his impulses once [they are] set in motion.”

The circumstances of Kenneth T.’s second offense also support Dr. Kirschner’s conclusion that Kenneth T. had serious difficulty controlling his sexual urges. Kenneth T. committed his second sexual act a mere 13 months after being released from 17 years of incarceration, which was apparently the consequence of his failure to curb his sexual impulses — he attempted to rape a female student who could easily identify him as an employee of the university that she attended. This offense took place in a public parking lot in the vicinity of Kenneth T.’s home. At the time, Kenneth T. was on parole and subject to sex offender registration. Dr. Kirschner testified that the circumstances of this sexual attack against someone who was familiar with him, and in a public place where he could be identified by a passerby who recognized him, demonstrated Kenneth T.’s “[p]oor impulse control” and that his ASPD affected his “volitional capacity.”

The majority concludes that this evidence is legally insufficient to support a finding that Kenneth T. had “serious difficulty in controlling his sexual misconduct” because it is just as likely that he consciously chose to disregard his impulses (see majority op at 188). This rationale establishes an impossible standard. The majority fails to indicate exactly what other type of evidence a factfinder may rely upon to determine an offender’s inability to control sexual behaviors, short of a clear admission from the offender regarding a lack of control over urges (see majority op at 188). Indeed, Dr. Etu reported that Kenneth T. admitted that he had “difficulty controlling his sexual impulses” (see majority op at 188 n 7). Contrary to the majority’s position, the circumstances surrounding the recurrence of criminal sexual conduct despite the prior imposition of severe sanctions for similar behavior are factors that are directly relevant to evaluating whether an offender struggles to control his sexual conduct (see John S., 23 NY3d at 349; Matter of State of New York v Shannon S., 20 NY3d 99, 108 [2012], cert denied 568 US —, 133 S Ct 1500 [2013]). I therefore cannot agree that the evidence was legally insufficient to demonstrate that Kenneth T. had serious difficulty controlling his behavior. But my analysis does not end here.

I conclude that the determination of mental abnormality must be reversed since the State failed to present legally sufficient evidence to support its proffered diagnosis of parapahilia NOS, nonconsenting partners. Like the majority (see majority op at 186-187), I do not believe that resolution of Kenneth T.’s case requires us to revisit our holding in Matter of State of New York v Shannon S. (20 NY3d 99 [2012]). There, a majority of this Court rejected the respondent’s challenge to the viability of paraphilia NOS as a predicate condition, holding that a condition need not be listed in the Diagnostic and Statistical Manual of Mental Disorders to so qualify (see id. at 106). Further, we explained that “[a]ny professional debate over the viability and reliability” of predicate conditions is an issue properly reserved for resolution by the factfinder (id. at 107). Those same principles apply in this case, but the State must present “an adequate record” for the factfinder and reviewing courts to assess the applicability of the asserted diagnosis (id.). In this respect, assuming without deciding that paraphilia NOS, nonconsenting, is a valid diagnosis, the evidence presented was insufficient.

At Kenneth T.’s trial, Dr. Kirschner testified that paraphilia NOS generally involved “sexual fantasies, urges or behaviors directed ... at inanimate objects or non-consenting partners or minors” and that Kenneth T, specifically, “has sexual fantasies, urges or behaviors involving non-consenting partners.” Although Dr. Kirschner claimed that he could “infer[ ]” that Kenneth T. had paraphilia NOS, nonconsenting, from “the evidence or the record,” he also stated that he was “not sure” he would infer that Kenneth T. was aroused by the nonconsensual nature of his sexual misconduct. Dr. Kirschner admitted that he did not believe that it “really . . . matter[ed]” whether Kenneth T.’s sexual crimes were the result of a paraphilia and he conceded that, on these facts, he could not distinguish Kenneth T. from a rapist motivated by a need for power and control rather than paraphiliac urges. In his view, whether Kenneth T.’s predisposition to commit sex crimes was caused by a “congenital or acquired condition, disease or disorder” was irrelevant (Mental Hygiene Law § 10.03 [i]). According to his testimony, paraphilia NOS, nonconsenting, may be diagnosed through evidence of the offender’s fantasies and feelings related specifically to the nonconsensual aspect of an offense. Any such proof, however, was admittedly lacking here. Because Dr. Kirschner grounded his opinion that Kenneth T. suffered from a mental abnormality on both the ASPD and paraphilia NOS diagnoses and the two cannot be separated based on the testimony adduced, the mental abnormality finding must be reversed.

IV

For the foregoing reasons, I respectfully dissent in Matter of State of New York v Donald DD. and concur in result only in Matter of State of New York v Kenneth T.

Chief Judge Lippman and Judges Smith and Rivera concur; Judge Graffeo dissents in an opinion in which Judges Read and Abdus-Salaam concur.

In Matter of State of New York v Donald DD.: Order reversed, without costs, and petition dismissed.

Chief Judge Lippman and Judges Smith and Rivera concur; Judge Graffeo concurs in an opinion in which Judges Read and Abdus-Salaam concur.

In Matter of State of New York v Kenneth T.: Order reversed, without costs, and petition dismissed.

      . According to the Diagnostic and Statistical Manual of Mental Disorders, “[t]he essential features of a Paraphilia are recurrent, intense sexually arousing fantasies, sexual urges, or behaviors generally involving 1) nonhuman objects, 2) the suffering or humiliation of oneself or one’s partner, or 3) children or other nonconsenting persons that occur over a period of at least 6 months” (American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 566 [4th ed Text Rev 2000]).

      . In addition, psychologist witnesses in the cases before us have testified that in order for a person to be properly diagnosed with ASPD, he or she must be 18 or older, his or her antisocial acts must not have been committed while in a manic or psychotic state, and there must be some evidence of conduct disorder prior to the age of 15.

      . In addition, both experts opined that Donald DD. suffered from an extreme form of ÁSPD known as psychopathy. However, they did not testify that this finding materially affected their conclusions regarding Donald DD.’s mental abnormality under article 10.

      . No objections were raised to the admission of evidence of uncharged sexual misconduct (see generally Matter of State of New York v Floyd Y., 22 NY3d 95 [2013]).

      . It appears that Dr. Kirschner has frequently testified for the State in Mental Hygiene Law article 10 trials.

      . Prominent members of the psychiatric community have criticized the practice of diagnosing so-called “paraphilia NOS nonconsent” on the basis of a history of committing sex crimes (Allen Frances & Michael B. First, Paraphilia NOS, Nonconsent: Not Ready for the Courtroom, 39 J Am Acad Psychiatry L 555 [Dec. 2011]; Allen Frances et al., Defining Mental Disorder When It Really Counts: DSM-W-TR and SVP/SDP Statutes, 36 J Am Acad Psychiatry L 375 [Sept. 2008]).

      . A transcript of Dr. Etu’s testimony at the probable cause hearing was introduced at trial. However, we do not consider Dr. Etu’s bare testimony that Kenneth T. had told him he had “difficulty” controlling his sexual impulses to be sufficient proof that Kenneth T. had serious difficulty controlling his sex-offending conduct within the meaning of Mental Hygiene Law article 10.

      . It is necessary to discuss our ruling in John S. briefly. The Court did not address, in that appeal, the question whether a civil commitment under Mental Hygiene Law article 10 may be based solely on a diagnosis of ASPD and evidence of sex crimes, because a majority of the Court concluded that John S. had not argued that it may not. Consequently, our decision was limited to the question of legal sufficiency.

      . A sex offender may waive the right to have mental abnormality determined by a jury and elect a non-jury trial (see Mental Hygiene Law § 10.07 [d]).

      . Examples of these conditions include electronic monitoring, polygraph monitoring, residency limitations, prohibition of contact with past or potential victims and parole supervision (see Mental Hygiene Law § 10.11).

      . As the majority acknowledges (see majority op at 191), ASPD is not a diagnosis premised on “junk science” or one that has been uniformly rejected by the mental health community (see Matter of State of New York v Shannon S., 20 NY3d 99, 106 [2012], cert denied 568 US —, 133 S Ct 1500 [2013]).


source: Caselaw Access Project

author: Abdus-Salaam, J.

license: Public Domain

text:
    [21 NE3d 995, 997 NYS2d 334]
    John W. Grace, Respondent, v Michael R. Law et al., Appellants.
    Argued September 17, 2014;
    decided October 21, 2014

      POINTS OF COUNSEL

      Michael Mutter, Albany, and Phillips Lytle LLP, Buffalo (Kevin J. English and Andrew P. Devine of counsel), for Michael R. Law and another, appellants.
    I. Under New York law, John W Grace waived his legal malpractice claim. (Rodriguez v Fredericks, 213 AD2d 176; Rudolfo Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438.) II. This Court should reject the “likely to succeed on appeal” standard. (Rupert v Gates & Adams, P.C., 83 AD3d 1393; Rodriguez v Fredericks, 213 AD2d 176; Lurch v United States, 719 F2d 333, 466 US 927.) III. The requirement of the full record from the underlying case conflicts with this Court’s holding in Zuckerman v City of New York (49 NY2d 557 [1980]). IV John W Grace’s discontinuance of his appeal and claim— which were not frivolous, and the record before the court gave reasonable cause to believe that a valid appeal and claim existed — precludes him from suing Michael R. Law and Phillips Lytle LLP (Sands v State of New York, 49 AD3d 444; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1.)

      Smith, Sovik, Kendrick & Sugnet, PC., Syracuse {Kevin E. Mulslander of counsel), for Robert L. Brenna, Jr., and another, appellants.
    I. If the Court finds that this is not a case of first impression, then Rupert v Gates & Adams, P.C. (83 AD3d 1393 [2011]) and Rodriguez v Fredericks (213 AD2d 176 [1995]) control, and plaintiff’s claim for legal malpractice cannot proceed because plaintiff directed the termination of the underlying case. (Andre v Pomeroy, 35 NY2d 361; Reinert v Town of Johnsburg, 99 AD2d 572; Alvarez v Prospect Hosp., 68 NY2d 320; Zuckerman v City of New York, 49 NY2d 557; Raux v City of Utica, 59 AD3d 984; Kirbis v LPCiminelli, Inc., 90 AD3d 1581; Persaud v Darbeau,13 AD3d 347; Murray Warehouse v Abelove, 170 AD2d 1027; Forest City Enters., Inc. v Russo, 8 Misc 3d 151; Lue v Finkelstein & Partners, LLP, 67 AD3d 1187.) II. If the Court finds that this is a case of first impression, then it should find that a party waives his right to commence a legal malpractice action where he terminates an underlying action in which a cause of action is ripe for trial and a meritorious appeal is pending. III. The public policy concerns raised by this matter necessitate a finding in favor of the appellants.

      LoTempio & Brown, PC., Buffalo {Brian J. Bogner of counsel), for respondent.
    I. Michael R. Law and Phillips Lytle LLP abandoned their appeal with respect to the denial of their motion for summary judgment on the statute of limitations grounds. (De Leon v New York City Tr. Auth., 50 NY2d 176; Clarke v Dangelo, 109 AD3d 1194; Mills v Chauvin, 103 AD3d 1041; Rodriguez v Dormitory Auth. of the State of N.Y., 104 AD3d 529; Goldstein v Held, 52 AD3d 471.) II. The majority properly rejected the per se rule advocated by Michael R. Law and Phillips Lytle LLP (Rupert v Gates & Adams, P.C., 83 AD3d 1393; Rodriguez v Fredericks, 213 AD2d 176.) III. Pursuing the remaining claim against the Veterans Administration Hospital would not have led to a full recovery. IV The meritorious appeal or reasonably prudent party standard should be rejected. (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438; Velie v Ellis Law, P.C., 48 AD3d 674; Boglia v Greenberg, 63 AD3d 973; Sands v State of New York, 49 AD3d 444.) V The majority’s likely to succeed standard and previous would have succeeded standard should also be rejected. (Brummer v Barnes Firm, P.C., 56 AD3d 1177.) VI. Even if this Court applies the would have succeeded standard, the likely to succeed standard, the meritorious appeal standard or the reasonably prudent party standard, the summary judgment motions were properly denied. (Orphan v Pilnik, 15 NY3d 907; Gray v Williams, 108 AD3d 1085; Rodriguez v New York City Health & Hosps. Corp., 50 AD3d 464; Evans v Holleran, 198 AD2d 472; Hylick v Halweil, 112 AD2d 400; Genesee/Wyoming YMCA v Bovis Lend Lease LMB, Inc., 98 AD3d 1242.) VII. The Fourth Department’s decision does not conflict with this Court’s prior ruling in Zuckerman v City of New York (49 NY2d 557 [1980]). VIII. The majority properly rejected the per se rule advocated by Robert L. Brenna, Jr., and Brenna, Brenna & Boyce, PLLC. (Rupert v Gates & Adams, P.C., 83 AD3d 1393; Rodriguez v Fredericks, 213 AD2d 176.) IX. Pursuing the remaining claim against the Veterans Administration Hospital would not have led to a full recovery. X. There is no evidence that John W Grace’s current attorney directed Grace to discontinue the remaining cause of action against the Veterans Administration Hospital to pursue a claim against his former attorneys for legal malpractice.
   OPINION OF THE COURT

Abdus-Salaam, J.

We are presented with an issue of first impression for this Court:

What effect does a client’s failure to pursue an appeal in an underlying action have on his or her ability to maintain a legal malpractice lawsuit? We hold that the failure to appeal bars the legal malpractice action only where the client was likely to have succeeded on appeal in the underlying action.

I

In October 2002, plaintiff John W. Grace began receiving treatment for an eye condition at the Veterans Administration Rochester Outpatient Clinic (VA Clinic) from ophthalmologist Dr. Shobha Boghani. Plaintiffs July 2003 appointment with her, however, was cancelled and not rescheduled for approximately one year. When plaintiff returned in August 2004, another VA ophthalmologist scheduled a consultation for plaintiff with Rochester Eye Associates. During that appointment, plaintiff was diagnosed with neovascular glaucoma, which ultimately left him blind in his right eye. At some point, plaintiff apparently learned that his blindness may have been prevented had it been detected earlier.

In August 2006, plaintiff retained Robert L. Brenna, Jr. and Brenna, Brenna & Boyce, PLLC (the Brenna defendants), to bring an administrative proceeding against the Veterans Administration (the VA) for malpractice due to its alleged failure to diagnose the eye condition and follow up with plaintiff after the VA canceled his July 2003 appointment. When delays occurred in the proceeding that the Brenna defendants brought on plaintiffs behalf, they recommended that plaintiff retain Michael R. Law and Phillips Lytle LLP (the Law defendants) to pursue a medical malpractice action against the VA.

In January 2008, plaintiff, represented by the Law defendants, filed an action in federal court against the United States and the VA under the Federal Tort Claims Act for medical malpractice and negligence in cancelling his July 2003 appointment (hereinafter the underlying action). At some point, the Law defendants learned that Dr. Boghani was not employed by the VA but was instead an employee of the University of Rochester (University), one of their existing clients. Because of this conflict, they informed plaintiff that they could no longer represent him. The Brenna defendants resumed representation of plaintiff. On December 8, 2008, an order was signed by the District Court, directing the substitution of counsel.

The VA was granted leave to commence a third-party action against Dr. Boghani and the University. Plaintiff amended his complaint to add Dr. Boghani and the University as defendants. Dr. Boghani and the University moved for summary judgment dismissing the claims against them as time-barred. The VA also moved for summary judgment based upon lack of jurisdiction, alleging that it was not liable to plaintiff because Dr. Boghani was not its employee.

Holding that plaintiffs claims against Dr. Boghani and the University were time-barred, the United States District Court for the Western District of New York granted defendants’ motion for summary judgment (see Grace v United States, 754 F Supp 2d 585, 602 [WD NY 2010]). The court determined that Dr. Boghani was an independent contractor, not an employee of the VA, and thus, jurisdiction was lacking for plaintiffs claim that it was hable for Dr. Boghani’s actions. The court granted the VA’s motion for summary judgment to that extent (see id. at 597-598). Plaintiffs remaining claim for malpractice based on the VA’s failure to reschedule his appointment, however, survived the VA’s motion.

Thereafter, Brenna sent plaintiff a letter which stated that plaintiff was unlikely to succeed on the remaining claim against the VA, and that a trial on that claim would be lengthy and, due to expert costs, expensive. Plaintiff thus directed the Brenna defendants to discontinue the underlying action.

Subsequently, plaintiff retained his current counsel to sue the Brenna defendants and the Law defendants for legal malpractice in failing to timely sue Dr. Boghani and the University. The Law defendants answered that plaintiff was estopped from commencing this action because he failed to appeal the underlying action. They later moved for leave to amend their answer to assert a statute of limitations defense, and upon amendment, for summary judgment in their favor, dismissing the complaint. The Brenna defendants also moved for summary judgment. They argued that plaintiff voluntarily discontinued the underlying action, thus forfeiting any right he may have had to pursue this legal malpractice action, and that they were not responsible for the Law defendants’ failure to initially sue Dr. Boghani and the University because they did not initiate the action.

Supreme Court granted the Law defendants’ motion to amend their answer, denied their motion for summary judgment, and denied the Brenna defendants’ motion for summary judgment. Both defendants appealed.

The Appellate Division, with one justice dissenting, affirmed the Supreme Court order (Grace v Law, 108 AD3d 1173 [4th Dept 2013]). The court observed that while this is an issue of first impression in New York, a per se rule that failure to appeal in an underlying action bars a legal malpractice claim has been rejected by several of our sister states. The court concluded that “defendants failed to establish that plaintiff was likely to succeed on an appeal . . . and, therefore, that their alleged negligence was not a proximate cause of his damages” (id. at 1176). The court determined that the record was insufficient to hold that defendants’ “representation of plaintiff did not preclude him from prevailing in the underlying lawsuit or upon appeal” (id. [brackets omitted]). In denying the Law defendants’ motion for summary judgment, the court held that “the continuous representation doctrine applied to toll the statute of limitations” (id. at 1177).

The Appellate Division granted defendants’ motions for leave to appeal to this Court (109 AD3d 1222 [2013]), and certified the question of whether the order was properly made.

II

While this Court has not had occasion to enunciate the appropriate standard for bringing legal malpractice lawsuits in the circumstances presented here, the Appellate Division Departments have examined similar circumstances (see Rupert v Gates & Adams, P.C., 83 AD3d 1393 [4th Dept 2011]; Rodriguez v Fredericks, 213 AD2d 176 [1st Dept 1995]). Those decisions — presented in the settlement context — generally stand for the proposition that an attorney should be given the opportunity to vindicate him or herself on appeal of an underlying action prior to being subjected to a legal malpractice suit.

Defendants contend that a plaintiff forfeits his or her opportunity to commence a legal malpractice action when he or she fails to pursue a nonfrivolous or meritorious appeal that a reasonable lawyer would pursue (see Sands v State of New York, 49 AD3d 444, 444 [1st Dept 2008]; see also MB Indus., LLC v CNA Ins. Co., 74 So 3d 1173 [La 2011]; Rondeno v Law Off. of William S. Vincent, Jr., 111 So 3d 515, 524 [La Ct App, 4th Cir 2013]). In contrast, plaintiff urges us to adopt a “likely to succeed” standard. Courts applying the “likely to succeed” standard analyze whether a client can commence a legal malpractice action without taking an appeal in the underlying action based upon the likelihood of success on that underlying appeal. In Hewitt v Allen (118 Nev 216, 43 P3d 345 [2002]), the Supreme Court of Nevada held that the voluntary dismissal of an underlying appeal does not constitute abandonment where the appeal “would be fruitless or without merit” (118 Nev at 218, 43 P3d at 346). The United States District Court for the District of Nevada interpreted Hewitt to mean that a defendant would have to show that the pending appeal was “likely” to succeed (U-Haul Co. of Nevada, Inc. v Gregory J. Kamer, Ltd., 2013 WL 4505800, *2, 2013 US Dist LEXIS 119448, *5-6 [D Nev, Aug. 21, 2013, No. 2:12-CV-00231-KJD-CWH]). Florida courts have held that “[w]here a party’s loss results from judicial error occasioned by the attorney’s curable, nonprejudicial mistake in the conduct of the litigation, and the error would most likely have been corrected on appeal, the cause of action for legal malpractice is abandoned if a final appellate decision is not obtained” (Segall v Segall, 632 So 2d 76, 78 [Fla Dist Ct App, 3d Dist 1993]; see Technical Packaging, Inc. v Hanchett, 992 So 2d 309, 316 [Fla Dist Ct App, 2d Dist 2008]; Eastman v Flor-Ohio, Ltd., 744 So 2d 499, 504 [Fla Dist Ct App, 5th Dist 1999]).

Defendants argue that the “likely to succeed” standard should not be adopted because it requires courts to speculate on the outcome of the underlying appeal. They posit, nevertheless, that even were we to adopt the “likely to succeed” standard, plaintiff could have succeeded on an appeal of the underlying action and, thus, should not be allowed to sue them for legal malpractice.

Here, the Appellate Division adopted the likely to succeed standard employed by our sister states with a proximate cause element. We agree that this is the proper standard, and that prior to commencing a legal malpractice action, a party who is likely to succeed on appeal of the underlying action should be required to press an appeal. However, if the client is not likely to succeed, he or she may bring a legal malpractice action without first pursuing an appeal of the underlying action.

On balance, the likely to succeed standard is the most efficient and fair for all parties. This standard will obviate premature legal malpractice actions by allowing the appellate courts to correct any trial court error and allow attorneys to avoid unnecessary malpractice lawsuits by being given the opportunity to rectify their clients’ unfavorable result. Contrary to defendants’ assertion that this standard will require courts to speculate on the success of an appeal, courts engage in this type of analysis when deciding legal malpractice actions generally (see Davis v Klein, 88 NY2d 1008, 1009-1010 [1996] [“In order to establish a prima facie case of legal malpractice, a plaintiff must demonstrate that the plaintiff would have succeeded on the merits of the underlying action but for the attorney’s negligence”]; see also Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442-443 [2007]; McKenna v Forsyth & Forsyth, 280 AD2d 79, 82 [4th Dept 2001]). We reject the nonfrivolous/meritorious appeal standard proposed by defendants as that would require virtually any client to pursue an appeal prior to suing for legal malpractice.

m

Applying the likely to succeed standard to the merits of this case, the Appellate Division reached the correct result.

On this record, defendants failed to provide sufficient evidence to determine that plaintiff would have been successful on appeal in demonstrating that Dr. Boghani was a VA employee, rather than an independent contractor counsel was required to name as a defendant separate from the VA (see Leone v United States, 910 F2d 46, 50 [2d Cir 1990], cert denied 499 US 905 [1991]; see also United States v Orleans, 425 US 807, 813 [1976]). As support, defendants submitted the contract between the VA and the University, which indicates, among other things, that Dr. Boghani was required to work at the VA Clinic six days per month, was under the general direction of the VA, and the University paid Dr. Boghani’s salary but was reimbursed by the VA. This information is insufficient to definitively determine whether Dr. Boghani was a VA employee, and thus, the Appellate Division correctly held that defendants failed to meet their summary judgment burden on this issue.

Regarding the Law defendants’ motion for summary judgment on the ground that plaintiff’s claims against them are time-barred, the statute of limitations in a legal malpractice action is three years from the accrual of the claim (see CPLR 214). Plaintiff commenced this action on December 5, 2011. The Law defendants claim that plaintiff should have known as early as September 26, 2008, that they would no longer be able to represent him and that the Brenna defendants would be taking over the case. Plaintiff, however, claims that he did not learn of the substitution of counsel until December 8, 2008, when the official stipulated order substituting counsel was issued by the District Court.

“[T]he rule of continuous representation tolls the running of the [s]tatute of [1]imitations on the malpractice claim until the ongoing representation is completed” (Shumsky v Eisenstein, 96 NY2d 164, 167-168 [2001]). Plaintiff has raised a triable issue of fact as to whether the doctrine of continuous representation tolled the statute of limitations because it is unclear when the Law defendants’ representation of plaintiff ended. Therefore, the Appellate Division properly denied the Law defendants’ motion for summary judgment based on the statute of limitations.

Accordingly, the Appellate Division order should be affirmed, with costs, and the certified question answered in the affirmative.

Chief Judge Lippman and Judges Graffeo, Read, Smith and Rivera concur; Judge Pigott taking no part.

Order affirmed, with costs, and certified question answered in the affirmative.

      . The dissenting justice concluded that a nonfrivolous appeal standard should be applied, and because plaintiffs claims in the underlying action were not frivolous, he should be required to appeal prior to bringing the legal malpractice suit.

      . Utah courts too consider proximate cause in analyzing this issue (see Crestwood Cove Apts. Bus. Trust v Turner, 164 P3d 1247 [Utah 2007]).


author: Graffeo, J.

text:
    [21 NE3d 1028, 997 NYS2d 367]
    Kent Frezzell, Appellant, v City of New York et al., Respondents.
    Argued October 15, 2014;
    decided November 20, 2014

      POINTS OF COUNSEL

      Parker Watchman, LLP, Port Washington (Jay L.T. Break-stone and Brett A. Zekowski of counsel), for appellant.
    Material questions of fact precluded the grant of summary judgment as a matter of law. (Alvarez v Prospect Hosp., 68 NY2d 320; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851; Zuckerman v City of New York, 49 NY2d 557; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395; William J. Jenack Estate Appraisers & Auctioneers, Inc. v Rabizadeh, 22 NY3d 470; Saarinen v Kerr, 84 NY2d 494; Corallo v Martino, 58 AD3d 792; Burrell v City of New York, 49 AD3d 482; Badalamenti v City of New York, 30 AD3d 452; O’Connor v City of New York, 280 AD2d 309.)

      Zachary W. Carter, Corporation Counsel, New York City ('Victoria Scalzo and Kristin M. Helmers of counsel), for respondents.
    I. This Court lacks jurisdiction to hear this appeal because no question of law is presented and, therefore, the appeal should be dismissed. (Guaspari v Gorsky, 29 NY2d 891; Merrill v Albany Med. Ctr. Hosp., 71 NY2d 990; Matter of Rashaun S., 10 NY3d 895.) II. The Appellate Division correctly affirmed the Supreme Court’s finding that defendants established their entitlement to summary judgment based on an absence of proof of recklessness and because plaintiff failed to demonstrate the existence of a triable issue of fact. (Saarinen v Kerr, 84 NY2d 494; Kabir v County of Monroe, 16 NY3d 217; Stanton v State of New York, 26 NY2d 990; Szczerbiak v Pilat, 90 NY2d 553; Wil

      liams v City of New York, 2 NY3d 352; Desmond v City of New York, 88 NY2d 455; O’Connor v City of New York, 280 AD2d 309, 96 NY2d 716; Burrell v City of New York, 49 AD3d 482; Badalamenti v City of New York, 30 AD3d 452; Corallo v Martino, 58 AD3d 792.)
   OPINION OF THE COURT

Graffeo, J.

On this appeal, we are asked if defendants were entitled to summary judgment on the issue of whether the police officer’s operation of his patrol vehicle rose to the level of “reckless disregard” necessary for liability under Vehicle and Traffic Law § 1104. We conclude that defendants met their burden and plaintiff failed to raise a triable issue of fact. We therefore affirm the Appellate Division order.

On September 20, 2006, around 10:00 p.m., New York City police officer Steve Tompos and his partner Richard Brunjes were patrolling in Central Park when they received an urgent radio call from a fellow officer indicating that he was engaged in a foot pursuit of a man with a gun near a public housing development a few blocks away and needed assistance. According to Tompos, within seconds of the radio transmission, Brunjes “threw the master switch” to activate the vehicle’s lights and turned on the siren. Tompos drove the patrol car from the park to Columbus Avenue and continued north against the legal flow of traffic. At the first intersection, Tompos turned left onto West 104th Street, heading westbound on the eastbound one-way street.

Plaintiff Kent Frezzell and his partner, both on-duty police officers, responded to the same radio call. Frezzell was driving his patrol vehicle eastbound on West 104th Street when the vehicle operated by Tompos headed down the same street in the opposite direction. Frezzell and Tompos saw each other’s vehicles just seconds before impact and both attempted evasive maneuvers. The resulting collision caused injuries to the occupants of both cars.

Frezzell subsequently commenced this action against Tompos and the City of New York, asserting a General Municipal Law § 205-e claim predicated upon violations of Vehicle and Traffic Law § 1104.* Following discovery, Tompos and the City moved for summary judgment, requesting dismissal of the cause of action under the “reckless disregard” standard of Vehicle and Traffic Law § 1104 that applied to the evaluation of Frezzell’s claim. Tompos and the City supported their motion with accident reports, witness statements, the transcript of Frezzell’s General Municipal Law § 50-h hearing testimony, and the deposition transcripts of the parties and vehicle occupants. In opposition, Frezzell proffered an affidavit explaining how the accident occurred and submitted one accident report.

Supreme Court granted Tompos’s and the City’s motion, emphasizing that Tompos’s vehicle was traveling at only 15 to 20 miles per hour at the time of the accident and that Tompos had attempted to avoid colliding with the vehicle operated by Frezzell. The court concluded that “[a]t best, [Frezzell] has alleged mere negligence, which under . . . Vehicle and Traffic Law [§ 1104 (e)] is not sufficient.” (2011 NY Slip Op 34148[U], 3 [2011].)

The Appellate Division affirmed, with two Justices dissenting (105 AD3d 620 [1st Dept 2013]). The majority determined that “Tompos . . . did not act in ‘reckless disregard for the safety of others’ while operating his vehicle” and highlighted testimony supporting the assertion that the emergency lights and siren had been activated in the patrol car, Tompos had reduced his speed while turning onto West 104th Street, and he veered away from Frezzell’s vehicle in an attempt to prevent the accident (id. at 620). Holding that Frezzell did not raise any triable issues of fact in the absence of non-speculative evidence that Tompos’s view was obstructed or that he was speeding, the majority held that Tompos and the City were entitled to summary judgment dismissing the complaint (see id. at 620-621).

The dissenters would have denied dismissal of the complaint on the basis of issues of fact, surmising that a reasonable jury could have found that the circumstances surrounding Tompos’s entry onto West 104th Street evinced a reckless disregard for the safety of others (see id. at 623 [Manzanet-Daniels, J., dissenting]). More particularly, the dissent identified questions concerning whether an emergency services unit (ESU) vehicle obstructed Tompos’s view of the intersection and whether Tompos or his partner had turned on the emergency lights and siren (see id. at 622).

Plaintiff now appeals to this Court as a matter of right, pursuant to CPLR 5601 (a).

Vehicle and Traffic Law § 1104 grants the driver of an authorized emergency vehicle special driving privileges when involved in an emergency operation. Those privileges include passing through red lights and stop signs, exceeding the speed limit and disregarding regulations governing the direction of movement or turning in specified directions (see Vehicle and Traffic Law §1104 [a], [b]). But drivers of emergency vehicles are not relieved of their duty to drive “with due regard for the safety of all persons” and section 1104 does not “protect the driver from the consequences of his reckless disregard for the safety of others” (Vehicle and Traffic Law § 1104 [e]).

This “reckless disregard” standard demands “more than a showing of a lack of ‘due care under the circumstances’ — the showing typically associated with ordinary negligence claims” (Saarinen v Kerr, 84 NY2d 494, 501 [1994]). Rather, for liability to be predicated upon a violation of Vehicle and Traffic Law § 1104, there must be evidence that “ ‘the actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow’ and has done so with conscious indifference to the outcome” (id., quoting Prosser & Keeton, Torts § 34 at 213 [5th ed]). This heightened standard is grounded in the legislature’s recognition that, although the exercise of the privileges granted in section 1104 may increase the risks to pedestrians and other drivers, emergency personnel “should be afforded a qualified privilege to disregard [certain traffic] laws where necessary to carry out their important responsibilities” (Saarinen, 84 NY2d at 502). This approach avoids “judicial ‘second-guessing’ of the many split-second decisions that are made in the field under highly pressured conditions” and mitigates the risk that possible liability could “deter emergency personnel from acting decisively and taking calculated risks in order to save life or property or to apprehend miscreants” (id.).

It is undisputed that Tompos’s act of driving against the flow of traffic on West 104th Street is privileged and must be reviewed under the heightened “reckless disregard” standard of Vehicle and Traffic Law § 1104 (e). Whether the standard was met here is a fact-specific inquiry and our analysis is focused on the precautionary measures taken by Tompos to avoid causing harm to the general public weighed against his duty to respond to an urgent emergency situation (see Szczerbiak v Pilat, 90 NY2d 553, 557 [1997]; Campbell v City of Elmira, 84 NY2d 505, 512 [1994]; Saarinen, 84 NY2d at 503).

On this record, we conclude that Tompos and the City met their burden of establishing that the officer’s conduct did not amount to reckless disregard of a highly probable risk of harm “with conscious indifference to the outcome” (Saarinen, 84 NY2d at 501). The evidence revealed that Tompos slowed down as he turned on West 104th Street and was driving below the speed limit on a clear and dry evening when the accident occurred. Furthermore, the testimony of Tompos and Brunjes established that their vehicle was moving at a speed between 10 and 25 miles per hour in a 30-mile-per-hour zone. Frezzell’s allegation that Tompos was traveling at a “high rate of speed” is insufficient to create a material question of fact in light of his admission that he could not estimate Tompos’s speed or “what [Tompos’s vehicle] was doing.” In addition, both Tompos and Brunjes testified as to the preventative measures Tompos took to avoid the collision, namely braking hard and veering to the side of the street. Frezzell introduced no proof contradicting these assertions.

Furthermore, the record in this case does not support Frezzell’s contention that there are triable issues of fact regarding whether Tompos’s vehicle was using its emergency lights and siren at the time of the accident. Although Brunjes did not specifically recall having turned on the lights and siren when they responded to the call, Tompos unequivocally stated several times that Brunjes had done so and that these signals remained in operation. Nor did Frezzell contradict this testimony since he could not state whether he observed the lights and siren on Tompos’s vehicle. Despite evidence that an accident report did not indicate that the patrol car’s siren was set to “constant” — as opposed to intermittent — use, this alone does not rise to the level of recklessness, particularly in light of the testimony that sirens were heard from “[e]very different direction” prior to the collision. Moreover, section 1104 statutorily exempts police vehicles from the requirement that audible signals be emitted while an emergency vehicle is in motion (see Vehicle and Traffic Law § 1104 [c]).

Frezzell relies heavily on a report indicating that Tompos may have had to negotiate around a parked ESU vehicle on West 104th Street and contends that this obstacle obstructed Tompos’s view when he turned onto the road. Yet, Frezzell saw Tompos’s vehicle drive down Columbus Avenue and turn onto West 104th Street, indicating that the line of vision was not completely obstructed. In any event, Frezzell and Tompos both claimed that the accident occurred “three or four car-lengths” or “several” car-lengths down the street — not at the corner of the intersection. If Tompos had to maneuver around a parked ESU truck further down the street, this amounted, at most, to negligence, not reckless disregard for the safety of others, particularly when viewed in light of the seriousness and immediacy of the situation to which Tompos was responding (see Szczerbiak, 90 NY2d at 557; Saarinen, 84 NY2d at 502-503).

Nor may liability in this case be predicated upon the decision by Tompos and Brunjes to respond to their fellow officer’s call for help in apprehending an armed and fleeing suspect. Plaintiff argues that Tompos and Brunjes were reckless in joining the pursuit because it originated outside of their assigned patrol area and they allegedly failed to alert other officers in the vicinity to their location. But whether Tompos should have responded at all is an issue beyond the scope of Vehicle and Traffic Law § 1104. Frezzell did not identify any policy or departmental rule or regulation that Tompos’s decision to join the pursuit violated, and both Tompos and Brunjes asserted that they had responded to emergency calls outside of their designated precinct boundaries on other occasions and were unaware of any policy prohibiting such conduct.

In the absence of any material questions of fact regarding whether Tompos was speeding in poor road or traffic conditions, was inattentive, or otherwise proceeded in an unreasonably dangerous manner without caution or care for the safety of bystanders and motorists, it cannot be said that Tompos acted with “conscious indifference to the outcome” (Saarinen, 84 NY2d at 501; see Szczerbiak, 90 NY2d at 557; Quock v City of New York, 110 AD3d 488, 489 [1st Dept 2013]; compare Campbell, 84 NY2d at 508, 511-512 [disputed issues of fact concerning whether fire truck driver checked the color of the traffic light, looked for oncoming traffic, accelerated, or utilized emergency signals when crossing intersection against the right-of-way]). Defendants were therefore entitled to summary judgment (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Accordingly, the Appellate Division order should be affirmed, with costs.

Chief Judge Lippman and Judges Read, Smith, Pigott, Rivera and Abdus-Salaam concur.

Order affirmed, with costs.

       Frezzell asserted other causes of action in his complaint that have been disposed of on other grounds and which are not at issue on this appeal.