IN RE: an Application for a Subsequent Retention Order Pursuant to Criminal Procedure Law Section 330.20(9) In Relation to BARRY V. (2007)

Respondent, who appeals by permission of this Court, contends that Supreme Court erred in granting petitioner's application for a subsequent retention order based upon the determination, following a hearing pursuant to CPL 330.20(9), that he suffers from a dangerous mental disorder.   The term dangerous mental disorder is defined as a mental illness, as a consequence of which the respondent “currently constitutes a physical danger to himself or others” (CPL 330.20[1][c];  see Matter of Jamie R. v. Consilvio, 6 N.Y.3d 138, 141-143, 810 N.Y.S.2d 738, 844 N.E.2d 285).   Respondent does not dispute that he suffers from a mental illness, but he contends that the petitioner failed to establish by the requisite preponderance of the evidence that he presents a danger to himself or others.   We reject that contention (see People v. Escobar, 61 N.Y.2d 431, 439-440, 474 N.Y.S.2d 453, 462 N.E.2d 1171).   We afford deference to the court's determination made after the hearing during which respondent testified and two psychiatric experts gave conflicting opinions, inasmuch as the court was “in the best position to observe [respondent's] behavior as well as evaluate the weight and credibility of the ․ conflicting testimony of the ․ psychiatric experts” (Matter of George L., 85 N.Y.2d 295, 305, 624 N.Y.S.2d 99, 648 N.E.2d 475;  see Matter of Timothy M., 307 A.D.2d 295, 763 N.Y.S.2d 320).   The court's determination is supported by evidence establishing that respondent had “a history of prior relapses into violent behavior, substance abuse or dangerous activities upon release or termination of psychiatric treatment [and by] evidence establishing that continued medication is necessary to control [respondent's] violent tendencies and that [respondent] is likely not to comply with prescribed medication because of a prior history of such noncompliance” (George L., 85 N.Y.2d at 308, 624 N.Y.S.2d 99, 648 N.E.2d 475;  see Matter of Francis S., 87 N.Y.2d 554, 561, 640 N.Y.S.2d 840, 663 N.E.2d 881).

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

MEMORANDUM: