*192 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.

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 *15 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 “[c]ivil 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, *193 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]).¹ 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]).²

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 *194 (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.

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 *17 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 *195 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 distinguish[ed] [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

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 *197 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.³

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 *198 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 *19 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 *20 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.

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 *200 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). *21 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 *201 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 *202 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, *22 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.

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.