IN RE: JOHN H. (2026)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Petitioner appeals from an order, entered after an annual review hearing pursuant to Mental Hygiene Law § 10.09 (d), determining that he is a dangerous sex offender requiring confinement under section 10.03 (e) and directing that he continue to be confined to a secure treatment facility (see § 10.09 [h]). We affirm.

At an annual review hearing, the State has the burden to prove, by clear and convincing evidence, that the individual who is the subject of the hearing is currently a dangerous sex offender requiring confinement (see Mental Hygiene Law § 10.09 [d], [h]). A person may be found to be a dangerous sex offender requiring confinement if that person “suffer[s] from a mental abnormality involving such a strong predisposition 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 to a secure treatment facility” (§ 10.03 [e]). The statute defines a 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 [them] to the commission of conduct constituting a sex offense and that results in that person having serious difficulty in controlling such conduct” (§ 10.03 [i]; see Matter of Charles B. v. State of New York, 192 A.D.3d 1583, 1585, 144 N.Y.S.3d 504 [4th Dept. 2021], lv denied 37 N.Y.3d 913, 2021 WL 5370871 [2021]).

Petitioner failed to preserve for our review his contention that respondent failed to establish by sufficient evidence that he suffers from a mental abnormality, inasmuch as he did not move for a directed verdict on the specific grounds raised on appeal (see Matter of John R. v. State of New York, 242 A.D.3d 1571, 1572, 243 N.Y.S.3d 240 [4th Dept. 2025]; see generally Matter of State of New York v. Robert R., 217 A.D.3d 1413, 1414, 189 N.Y.S.3d 361 [4th Dept. 2023]). To the extent that petitioner contends that the weight of the evidence does not support Supreme Court's finding that he suffers from a mental abnormality (see Mental Hygiene Law § 10.03 [i]), we reject that contention. Here, respondent's evidence at the hearing consisted of, inter alia, the report and testimony of a licensed psychologist who opined that petitioner suffered from narcissistic personality disorder, as well as other specified paraphilic disorders, which predispose him to commit sex offenses and result in his having serious difficulty in controlling such conduct (see Matter of Wayne J. v. State of New York, 184 A.D.3d 1133, 1135, 123 N.Y.S.3d 851 [4th Dept. 2020], lv denied 36 N.Y.3d 906, 2021 WL 505192 [2021]; Matter of Akgun v. State of New York, 148 A.D.3d 1613, 1613-1614, 50 N.Y.S.3d 707 [4th Dept. 2017]).

We similarly reject petitioner's contention that the determination that he remains a dangerous sex offender requiring confinement is otherwise against the weight of the evidence (see Mental Hygiene Law § 10.03 [e]). Respondent's expert concluded that, as a result of petitioner's mental condition, disease, or disorder, he had such a strong predisposition to commit sex offenses and such an inability to control his behavior that he is likely to commit sex offenses if not confined to a secure treatment facility. Among other things, the testimony at the hearing established that petitioner made little progress in sex offender treatment, that he continued to hold cognitive distortions and had not yet developed either the skills to manage his paraphilic interests or a comprehensive plan for avoiding his risk for recidivism in the community, and that he generally lacked insight into his condition (see Matter of Kerry K. v. State of New York, 225 A.D.3d 1122, 1124, 207 N.Y.S.3d 323 [4th Dept. 2024], lv denied 42 N.Y.3d 901, 2024 WL 4125622 [2024]; Matter of Francisco R. v. State of New York, 214 A.D.3d 1409, 1410, 183 N.Y.S.3d 907 [4th Dept. 2023]). Notably, petitioner did not present any evidence refuting the opinion of respondent's expert with regard to petitioner's mental abnormality or whether he remains a dangerous sex offender, and we see no reason to disturb the court's decision to credit the testimony of respondent's expert (see generally Kerry K., 225 A.D.3d at 1124, 207 N.Y.S.3d 323; Matter of State of New York v. Richard F., 180 A.D.3d 1339, 1340, 119 N.Y.S.3d 640 [4th Dept. 2020]; Matter of State of New York v. Connor, 134 A.D.3d 1577, 1578, 21 N.Y.S.3d 920 [4th Dept. 2015], lv denied 27 N.Y.3d 903, 2016 WL 1312793 [2016]).

Petitioner failed to preserve for our review his contention that the court improperly admitted hearsay evidence that included the opinion from a report of a witness who was unavailable to testify inasmuch as petitioner failed to object when respondent's expert testified regarding the unavailable witness's diagnosis of petitioner contained in the report (see Matter of State of New York v. Dennis K., 27 N.Y.3d 718, 741, 37 N.Y.S.3d 765, 59 N.E.3d 500 [2016], cert denied 580 U.S. 1023, 137 S.Ct. 579, 196 L.Ed.2d 452 [2016]).

Finally, we reject petitioner's contention that he received ineffective assistance of counsel. Inasmuch as petitioner “ ‘is subject to civil confinement, the standard for determining whether effective assistance of counsel was provided in criminal matters is applicable here’ ” (Matter of State of New York v. Robert T., 214 A.D.3d 1405, 1406, 183 N.Y.S.3d 886 [4th Dept. 2023], lv denied 41 N.Y.3d 902, 2024 WL 674744 [2024]). Contrary to his contention, we conclude that petitioner failed to meet “his burden on appeal to demonstrate the absence of strategic or other legitimate explanations for his attorney's alleged deficiencies” (Matter of State of New York v. Steven A., 193 A.D.3d 1344, 1345, 143 N.Y.S.3d 252 [4th Dept. 2021], lv denied 37 N.Y.3d 911, 2021 WL 4597426 [2021]; see Matter of State of New York v. Juan U., 187 A.D.3d 1606, 1608, 133 N.Y.S.3d 351 [4th Dept. 2020], lv denied 36 N.Y.3d 906, 2021 WL 509893 [2021]). Rather, “viewing the evidence, the law, and the circumstances of this case as a whole and at the time of the representation,” we conclude that petitioner received effective assistance of counsel (Matter of State of New York v. Parrott, 125 A.D.3d 1438, 1440, 2 N.Y.S.3d 711 [4th Dept. 2015], lv denied 25 N.Y.3d 911, 2015 WL 3618918 [2015]; see Juan U., 187 A.D.3d at 1609, 133 N.Y.S.3d 351).