IN RE: KERRY K. (2026)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs and the matter is remitted to Supreme Court, Oneida County, for further proceedings in accordance with the following memorandum: Petitioner is a sex offender who was civilly committed pursuant to Mental Hygiene Law § 10.07 (f) (Matter of State of New York v Kerry K., 222 AD3d 655, 655 [2d Dept 2023], appeal dismissed 41 NY3d 1012 [2024], lv denied 42 NY3d 910 [2024]). He remained civilly committed following an initial annual review pursuant to Mental Hygiene Law § 10.09 (d) (Matter of Kerry K. v State of New York, 225 AD3d 1122, 1122 [4th Dept 2024], lv denied 42 NY3d 901 [2024]). Respondent, State of New York (State), now appeals from an order, entered after Supreme Court determined following a second annual review hearing that petitioner no longer suffers from a mental abnormality (see Mental Hygiene Law § 10.03 [i]), that granted his petition for discharge. We agree with the State that the court's determination is against the weight of the evidence.

“In reviewing a determination made after a nonjury trial, the power of this Court is as broad as that of the trial court, and it may render the judgment that it finds warranted by the facts, taking into account that in a close case the trial judge had the advantage of seeing and hearing the witnesses” (Matter of State of New York v Kerry K., 157 AD3d 172, 185 [2d Dept 2017]; see Matter of State of New York v Langston F., 236 AD3d 915, 916 [2d Dept 2025], lv denied 44 NY3d 903 [2025]). At an “annual review hearing, the State has the burden of establishing by clear and convincing evidence[, inter alia,] that the offender continues to suffer from a mental abnormality” (Matter of Doy S. v State of New York, 196 AD3d 1165, 1166 [4th Dept 2021]; see Mental Hygiene Law § 10.09 [d], [h]).

A “ ‘[m]ental abnormality’ ” is “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” (Mental Hygiene Law § 10.03 [i]; see Kerry K., 157 AD3d at 185).

“Thus, not only must the State establish by clear and convincing evidence the existence of a predicate condition, disease or disorder, it must also link that condition, disease or disorder to a person's predisposition to commit conduct constituting a sex offense and to that person's serious difficulty in controlling such conduct” (Matter of State of New York v Dennis K., 27 NY3d 718, 726 [2016], cert denied 580 US 1023 [2016] [internal quotation marks omitted]; see Mental Hygiene Law § 10.07 [d]; Doy S., 196 AD3d at 1166).

Here, both experts who testified at the hearing agreed that petitioner suffered from antisocial personality disorder (ASPD). The State's expert opined that petitioner also suffered from other specified paraphilic disorder (non-consent) (OSPD) and had a high degree of psychopathic traits. The State's expert diagnosed petitioner with OSPD based on his deviant sexual interests, i.e., being aroused by forcible sexual encounters with vulnerable women. With respect to the high degree of psychopathic traits, the State's expert based his opinion on the fact that petitioner scored a 28.4 for psychopathy on the PCL-R test. Although it was less than 30, which the independent expert appointed by the court believed was necessary for a finding of “high” psychopathic traits, that expert admitted that the technical manual for the PCL-R lists a score of 25 as the level for diagnoses for “high psychopathic traits.”

According to the State's expert, a “high” range was anywhere from 25 to 32, and that expert testified that such a score greatly increases an offender's risk of sexual reoffense. In any event, the independent expert did not perform the PCL-R test on petitioner due to his age, and did not believe that a diagnosis of ASPD and psychopathic traits constituted two separate diagnoses. In his opinion, ASPD and psychopathic traits are not distinguishable.

The court credited the independent expert's testimony and determined that petitioner did not suffer from a mental abnormality. The court summarized the testimony of both experts, but failed to address in its analysis either OSPD or psychopathy, writing only about ASPD.

Although a diagnosis of ASPD, standing alone, is insufficient to support a finding of a mental abnormality under Mental Hygiene Law article 10 (see Dennis K., 27 NY3d at 725; Matter of State of New York v Donald DD., 24 NY3d 174, 177 [2014]), a diagnosis of ASPD and psychopathy, when supported by expert testimony, “is legally sufficient to provide a basis for a finding of mental abnormality” (Doy S., 196 AD3d at 1167; see Matter of Clarence H. v State of New York, 195 AD3d 1532, 1533 [4th Dept 2021]; see generally Donald DD., 24 NY3d at 177).

In Doy S., the hearing court determined that “a diagnosis of psychopathy or psychopathic features is still only a diagnosis of ASPD alone and ․ could not constitute an ‘other condition’ to provide a basis for a finding of abnormality” (196 AD3d at 1167). We held in Doy S., however, that the “court erred in determining that the combination of [ASPD and] psychopathy ․ could not support a finding of mental abnormality” (id. at 1166). In this case, given the court's failure to address OSPD or psychopathy in its analysis, we conclude that the court effectively made the same determination here, i.e., “that a diagnosis of psychopathy or psychopathic features is still only a diagnosis of ASPD alone” (id. at 1167). Inasmuch as the court ignored the evidence of OSPD as well as the evidence of high or medium psychopathic traits in its analysis, we conclude that its determination is against the weight of the evidence.

Nevertheless, “in light of the conflicting expert testimony, there is not uncontroverted evidence that petitioner has a mental abnormality” (id. at 1168 [emphasis added]). We therefore reverse the order and remit to Supreme Court for a new hearing on whether petitioner continues to suffer from a mental abnormality and remains a dangerous sex offender requiring confinement (see id.; see also Matter of State of New York v Ezikiel R., 223 AD3d 832, 834 [2d Dept 2024]).

Entered: July 24, 2026

Ann Dillon Flynn

Clerk of the Court