In the Matter of the Application for Discharge of Cerrick D., Consec. No. 32080, from Central New York Psychiatric Center, Pursuant to MHL § 10.09, PetitioneragainstThe State of New York, The New York State Office of Mental Health, and The New York State Department of Corrections and Community Supervision, Respondents.*1 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*2
(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.ANALYSISPursuant 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
