IN RE: the Application for Discharge of CERRICK D.

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IN RE: the Application for Discharge of CERRICK D., Consec. No. 32080, from Central New York Psychiatric Center, Pursuant to MHL § 10.09, Petitioner v. The State of New York, The New York State Office of Mental Health, and The New York State Department of Corrections and Community Supervision, Respondents.

No. CA2016–001139.

Decided: November 21, 2017

Mental Hygiene Legal Service, Fourth Judicial Department, Emmett J. Creahan, Director by Michael H. McCormick, Esq., Staff Attorney, for the Petitioner. State of New York, Office of the Attorney General, Eric T. Schneiderman, Esq., Attorney General by Christopher W. Schlecht, Esq ., Assistant Attorney General, for the Respondents.

In this proceeding, Cerrick D. has petitioned for discharge from civil confinement after having received an annual written notice from the Commissioner of the New York State Office of Mental Health (OMH), pursuant to Mental Hygiene Law § 10.09. By Omnibus Order, the Court appointed Mental Hygiene Legal Service, Fourth Judicial Department (MHLS), to represent Cerrick D., and also appointed George David Annas, M.D., M.P.H., to conduct an independent psychological evaluation.

Dr. Annas first tried to interview Cerrick D. at Central New York Psychiatric Center on January 9, 2015, but Cerrick D. refused the meeting. Cerrick D. subsequently was transferred to St. Lawrence Psychiatric Center, where he did agree to meet with Dr. Annas on October 14, 2016. Although he would have liked to interview Cerrick D. for a longer period of time, Dr. Annas said that Cerrick D. abruptly ended the conversation after approximately two hours to get something to eat. Dr. Annas also reviewed various records and prepared a written report dated February 3, 2017. He diagnosed Cerrick D. with Antisocial Personality Disorder (ASPD), Bipolar I Disorder without psychosis, Unspecified Neurocognitive Disorder, Unspecified Alcohol Use Disorder in sustained remission in a controlled environment, and Unspecified Marijuana Use Disorder in sustained remission in a controlled environment.

Cerrick D. separately interviewed with OMH psychiatric examiner Kevin Burgoyne, Psy.D., on May 24, 2016. In addition, Dr. Burgoyne reviewed available records. His written report is dated August 30, 2016. He found Cerrick D. met the criteria for the following DSM–5 diagnoses: Sexual Sadism Disorder in a controlled environment; ASPD; and Unspecified Bipolar and Related Disorder.

Both doctors testified at a hearing conducted on June 7, 2017. Oral summations were received from counsel, following which the Court reserved decision. Prior to issuing this written decision, the Court reviewed the experts' written reports and their testimony, along with the various other exhibits received into evidence.

ANALYSIS

Pursuant to Mental Hygiene Law § 10.09(d), Cerrick D. filed his petition asking the Court to determine whether he currently suffers from a “mental abnormality” as that term is defined in Mental Hygiene Law § 10.03(i), and if so, whether he remains a “dangerous sex offender requiring confinement,” as that term is defined in Mental Hygiene Law § 10.03(e). The State bears the burden of proof by “clear and convincing evidence.” (See Matter of Skinner v. State of New York, 108 AD3d 1134, 1135 [4th Dept 2013] [employing clear and convincing standard on an application for discharge under Mental Hygiene Law § 10.09]; see also Matter of State of New York v. Donald DD., 24 NY3d 174, 187 [2014] [referencing clear and convincing standard] ). This standard of proof is not as stringent as the “beyond a reasonable doubt” standard used in criminal cases, but is more strict than the “preponderance of the evidence” standard used typically in civil cases. (See Matter of Darius B. (Theresa B.), 90 AD3d 1510, 1510 [4th Dept 2011]; see generally Matter of State of New York v. Farnsworth, 75 AD3d 14 [4th Dept 2010], appeal dismissed, 15 NY3d 848 [2010] [discussing constitutionality of “clear and convincing” evidence standard to Mental Hygiene Law article 10 proceedings] ). Clear and convincing evidence “is neither equivocal nor open to opposing presumptions.” (Darius B., 90 AD3d at 1510 [internal quotation marks and citation omitted] ).

Dr. Burgoyne stated in his report and at the hearing that he believed Cerrick D. should remain civilly confined for another year. Dr. Annas was not as matter-of-fact, ending his report with this observation:

[I]f the court decides to qualify [Cerrick D.'s] diagnosis of Bipolar Disorder and Unspecified Neurocognitive Disorder as Mental Abnormalities, and the presence of his risk of sexual assault, regardless of the likely level of dangerousness of that risk, then it is my opinion with reasonable medical certainty that [Cerrick D.] would qualify as a Dangerous Sex Offender requiring

confinement․

(Petitioner's Exhibit 9, at 28). As MHLS counsel acknowledged during summation, the crux of this case is focused on whether the evidence shows Cerrick D. meets the predisposition element of the definition for “mental abnormality.”

I. Predisposition

Mental Hygiene Law § 10.03(i) defines “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.” (Emphasis added). Cerrick D. argues that Dr. Burgoyne was incorrect in diagnosing him with Sexual Sadism Disorder. He concludes that if this disorder were removed from consideration, he is left with diagnoses that do not predispose him to commit new sex offenses, even if he might be predisposed to commit crimes generally.

Sexual sadism is one of the enumerated paraphilic disorders in the Fifth Edition of the Diagnostic and Statistical Manual (DSM–V). Dr. Burgoyne testified at the hearing that he assigned this diagnosis based upon the following considerations: Cerrick D. committed four rapes, with the intensity of the suffering inflicted upon the victim escalating over time; his offenses were planned; Cerrick D. exercised greater power and control than was necessary to gain victim compliance; he humiliated his last victim in multiple ways by holding her hostage, moving her around so as to rape her in multiple places, and urinating on her; he told his last victim that she enjoyed the acts he was committing against her; and he kept a “trophy” from a rape that occurred six days before his instant offense. (See also respondent's exhibit B, at 9). Dr. Burgoyne explained the DSM–V does not identify specific behavioral markers for sexual sadism, such that he looked for the presence of markers that have been identified through research. On cross-examination, Dr. Burgoyne was asked questions about said research, including three articles cited in his written report plus another. Dr. Burgoyne acknowledged that interrelator reliability can be poor when diagnosing sexual sadism. He noted however, that newer studies are suggesting an emphasis on the exercise of professional judgment and not a standard cut-off for enumerated factors.

Dr. Annas considered the applicability of Sexual Sadism Disorder, but decided against such a diagnosis because he felt much of Cerrick D.'s behavior during his offenses could be attributed to ASPD. At the hearing, Dr. Annas emphasized the distinction that he feels should be drawn between the exercise of power and control during a rape (which would be a part of almost every rape) and the arousal to power and control during a rape. He did not find enough in the records to determine the root cause of Cerrick D.'s arousal when sexually offending.

While the Court holds both expert witnesses in high esteem, in this case, it credits Dr. Burgoyne's diagnosis. Significantly, even though Dr. Annas did not diagnose Sexual Sadism Disorder, he did not completely rule it out either. (See petitioner's exhibit 9, at 25). He acknowledged his conclusion is limited by the nature of the information available to him regarding Cerrick D.'s sexual arousal during his offenses. (See id.). That being said, admitting to a sexual interest in the physical or psychological suffering of another is not a prerequisite to diagnosing sexual sadism. (See DSM–V, at 696). The DSM–V includes as examples of individuals who deny such interest, but still can be diagnosed with sexual sadism, those persons “known to have inflicted pain or suffering on multiple victims on separate occasions but who deny any urges or fantasies about such sexual behavior and who may further claim that known episodes of sexual assault were either unintentional or nonsexual.” (Id.). Cerrick D. evidenced such denials. In his interview with Dr. Burgoyne, he “denied the majority of his sexual offense history and vacillated on whether he had ever committed a sex offense at all.” (Respondent's exhibit B, at 9). He also endorsed no sadistic symptoms on the Abel–Becker Card Sort Test. (See petitioner's exhibit 9, at 16). While the absence of such endorsement might not be indicative of sexual sadism, in the context of this case, neither is it conclusive evidence of the absence of the disorder.

Nor is it fatal to Dr. Burgoyne's diagnostic conclusion that most of the sadistic features of Cerrick D.'s offending were in connection with only his instant offense. While the DSM–V uses a general rule of having three or more victims, “[f]ewer victims can be interpreted as satisfying this criterion, if there are multiple instances of infliction of pain and suffering to the same victim.” (DSM–V, at 696). According to Dr. Burgoyne's written report (see respondent's exhibit B, at 6), Cerrick D. in his instant offense grabbed the victim by the throat and pulled her into an area with trees. She struggled, but he still managed to force her to perform fellatio and then rape her. He thereafter used the victim's blue jeans to tie her arms together and then tie them to one of her legs. He tore out the lining of her purse and stuffed it in her mouth to keep her quiet. Cerrick D. then left, only to return shortly thereafter, roll the victim onto her stomach and sodomize her. Once this act was complete, Cerrick D. left and returned again. He moved the victim to a different location, tore her shirt to tie her ankles together, raped her and urinated on her. Cerrick D. then ripped off the victim's bathing suit, rolled her onto her stomach and sodomized her again. The victim told probation that she believed these events took place in the span of roughly an hour. For Cerrick D. to have been sexually aroused at least four times in such a relatively short time, and to have tied up the victim as he did when he was able to commit his initial rape against her without such restraints, the Court considers Dr. Burgoyne to have accurately diagnosed Sexual Sadism Disorder.

Even if the diagnosis were inapplicable, recent caselaw suggests consideration of sadistic behavioral markers can be relevant. The Fourth Department, in affirming a mental abnormality finding, considered two behavioral indicators of sexual sadism, along with diagnoses of Personality Disorder (not otherwise specified) with antisocial traits, and alcohol and cocaine abuse disorders, as well as a history of sexual preoccupation. (See Matter of Gooding v. State of New York, 144 AD3d 1644 [4th Dept 2016] ). The Fourth Department also upheld a mental abnormality finding based upon ASPD, alcohol and cocaine dependency, psychopathic traits, a history of sexual preoccupation and “sexually sadistic behavioral indicators.” (See Matter of Vega v. State of New York, 140 AD3d 1608 [4th Dept 2016] ). The Second Department found allegations of mental abnormality rooted in a “composite diagnosis” of ASPD, psychopathy, conduct disorder, a provisional diagnosis of sexual sadism disorder, and evidence suggestive of deviant sexual behavior and/or sexual preoccupation to be facially sufficient to withstand a motion to dismiss under CPLR 3211(7). (See Matter of State of New York v. Ezikiel R., 147 AD3d 959 [2d Dept 2017] ).

Kings County Supreme Court analyzed in detail whether elements of sexual sadism could be considered in a mental abnormality analysis, absent proof of criteria meriting a full diagnosis. (See Matter of State of New York v. Kaysheem P., 54 Misc.3d 1216[A], 2017 N.Y. Slip Op 50194[U] [Sup Ct, Kings County 2017] ). In concluding such elements were relevant (see id. at *13–14), the Kaysheem P. Court considered decisions by the Court of Appeals stating that a DSM diagnosis is not a prerequisite for mental abnormality (see Matter of State of New York v. Shannon S., 20 NY3d 99, 106 [2012] ), and upholding a mental abnormality finding based upon a combination of diagnoses and conditions described by the State's expert as creating a “personality structure” predisposing the individual to commit sex offenses (see Matter of State of New York v. Dennis K., 27 NY3d 718, 750 [2016] ). The Kaysheem P. Court referenced generally cases finding mental abnormality in part on provisional diagnoses. Indeed, the concept of permitting consideration of provisional or rule diagnoses has been upheld by the Second Department. (See, e.g., Matter of State of New York v. Ruben M., 137 AD3d 1047, 1048 [2d Dept 2016] [finding no error in permitting state expert to testify about a rule out diagnosis], lv denied, 27 NY3d 910 [2016]; Matter of State of New York v. Derrick B., 68 AD3d 1124, 1126 [2d Dept 2009] [upholding mental abnormality finding based on a provisional diagnosis of Cognitive Disorder Not Otherwise Specified]; see also Matter of State of New York v. Kevin J., 48 Misc.3d 492, 508 [Kings County 2015] [finding ASPD, psychopathy, Alcohol Use Disorder and “some aspects of sexual deviance and sexual sadism” to be sufficient to withstand a motion to dismiss] ).

Overall, caselaw in recent years seems to be trending toward a comprehensive understanding of factors considered by experts and how those factors may be linked to a predisposition to commit sex offenses. (See, e.g., Matter of State of New York v. Richard TT., 132 AD3d 72, 77 [3d Dept 2015] [finding by the Third Department that “[t]he trial evidence therefore reflected that respondent has a variety of disorders [ASPD, psychopathy and borderline personality disorder] that can lead not only to a generalized willingness to commit crimes, but impulsive sexual behavior in particular.”], aff'd in Dennis K. (Richard TT.), 27 NY3d at 750 [“Such disorders affect [Richard TT's] impulse control, emotions, cognitions and interpersonal relationships, and they manifest themselves in his commission of sex offenses.”]; see also Matter of State of New York v. Gary K., 53 Misc.3d 1207[A], at *18 [Sup Ct, N.Y. County 2016] [differentiating Gary K. from typical cases involving ASPD plus psychopathy, because the substance abuse and psychopathy diagnoses “here were not merely diagnostic labels which might lead to general disinhibition, antisocial or criminal behavior. [The State's expert] credibly testified about how those conditions in combination led to [Respondent's sexual offending].”]; cf. Matter of State of New York v. Kevin F., 51 Misc.3d 911, 915 [Sup Ct Kings County 2016] [considering only ASPD and psychopathy diagnoses where the State did not argue that an alcohol abuse diagnosis was a contributing factor to mental abnormality] ).

With respect to Cerrick D., both experts diagnosed ASPD and a bipolar disorder of some type. Dr. Annas added an Unspecified Neurocognitive Disorder. Dr. Burgoyne testified about Cerrick D.'s high psychopathic traits, with which observation Dr. Annas agreed. The Court of Appeals has clarified that the statutory definition for mental abnormality does not require that the “condition, disease or disorder” constitute a sexual disorder. (Dennis K., 27 NY3d at 743). As previously noted, Dr. Annas expressed hesitation as to whether mental abnormality could be grounded in Cerrick D.'s Bipolar Disorder. (See petitioner's exhibit 9, at 27[“[I]f the court views the presence of any mental illness that qualifies as a condition that can affect the emotional, cognitive or volitional capacity of the individual and predisposes him to a sex offense, and results in a serious ability [sic] to control his conduct, then his diagnosis of Bipolar Disorder would qualify as a Mental Abnormality.”] ). Considering Bipolar Disorder is recognized and defined within the DSM–V, and in light of the Court of Appeals' holding in Dennis K., this Court concludes that Bipolar Disorder could form the basis for a finding of mental abnormality. In fact, the respondent in Derrick B. was found to have a mental abnormality based only on a provisional diagnosis of Cognitive Disorder Not Otherwise Specified. (See 68 AD3d at 1126). The key, it seems, is whether the condition, disease or disorder can be linked to a predisposition to commit sex offenses.

The evidence in this case paints enough of a detailed picture of Cerrick D. to establish a relationship between his diagnoses, his behavioral markers of sexual sadism (independent of the validity of a formal diagnosis), his sexual deviance (as described by Dr. Burgoyne in his report and in his testimony) and his sexual offending. Dr. Annas' primary reluctance to opine that Cerrick D. has a mental abnormality is his uncertainty as to whether a non-sexual mental health condition would suffice for purposes of Mental Hygiene Law article 10. Mindful of the precedent cited within this decision, this Court concludes the State has met its burden of proving by clear and convincing evidence that Cerrick D. meets the predisposition of element of the mental abnormality definition.

II. Control Over Sex Offending Behavior

The statutory definitions for “mental abormality” and “dangerous sex offender requiring confinement” require the Court to analyze the degree to which Cerrick D. can control his sex offending behavior. For mental abnormality, the standard is “serious difficulty.” (See Mental Hygiene Law § 10.03(i)). For dangerousness, the standard is higher in that it requires an “inability to control.” (See id. § 10.03(e)). Both experts in this case readily agreed that Cerrick D. has done little to minimize his risk of reoffending.

In his written report, Dr. Annas noted Cerrick D. “has multiple risk factors that place him at an elevated risk for re-offending and few factors that would reasonably be expected to mitigate this risk.” (Petitioner's exhibit 9, at 27). Dr. Annas further noted a correlation between Cerrick D.'s overall decline in function and his increased agitation and aggressive behavior. Dr. Annas thought this correlation could contribute to a higher risk to re-offend sexually. (See id.). The State introduced evidence demonstrating Cerrick D.'s ongoing issues with impulse control during this current annual review period. (See respondent's exhibits C, D, E & F).

On cross-examination, Dr. Annas recognized Cerrick D. accepts no responsibility for his sex offenses, instead blaming his victims and displaying cognitive distortions about the events. Dr. Annas characterized Cerrick D.'s explanation for preventing future offenses as inadequate for a person with his sex offense history. Dr. Annas felt Cerrick D.'s participation in treatment was motivated by a desire to be released to the community, not to get better. He concluded Cerrick D. has a poor awareness of his offenses and the degree of his risk to relapse.

Dr. Burgoyne's administration of the Violence Risk Scale–Sex Offender Version (VRS:SO), which is designed to evaluate an individual's risk of sexual violence, supports the conclusions drawn by Dr. Annas. Dr. Burgoyne first administered the VRS:SO in November 2014. When he did so again 21 months later in August 2016, Cerrick D.'s score did not change. According to Dr. Burgoyne, having the same score is reflective of not only a failure to make progress in treatment, but also an increased risk of recidivism.

Drs. Burgoyne and Annas opined in their written reports that if this Court found Cerrick D. suffered from a mental abnormality, they recommended continued civil confinement. Without any evidence to call into question their opinions on this point, the Court credits same and finds that Cerrick D. is currently a dangerous sex offender requiring confinement.

The Court's determination in this matter is made nunc pro tunc to the date of the hearing in this case, i.e., June 7, 2017. The Office of the Attorney General is directed to submit a proposed Order, on notice to Mental Hygiene Legal Service, in accordance with this Decision.

IT IS HEREBY ORDERED, that the Court record of this proceeding shall be sealed by the Oneida County Clerk's Office and will be made available only to the parties to this proceeding or upon further Order of the Court.

LOUIS P. GIGLIOTTI, J.

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