State v. Donald DD.

OPINION OF THE COURT

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.

*178In 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 dif*179ficulty 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.”1 2 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 *180T.’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.

*181m.

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).

*182Donald 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. *183Dr. Kunkle concluded that Donald DD. had all seven traits, while Dr. Hamill concluded that he had at least six.3

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 *184[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.4

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 *185had 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 *186State 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. Kirschner5 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]).6

*187Nonetheless, 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 commit*188ted 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.7 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 *189John 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.8 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%]).

*190These 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 *191predisposes 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.