IN RE: THE STATE OF NEW YORK (2011)

Supreme Court, Appellate Division, Fourth Department, New York.

IN RE: THE STATE OF NEW YORK, PETITIONER–RESPONDENT, v. LERRYL SMITH, RESPONDENT–APPELLANT.

CA 10–01491

Decided: June 10, 2011

PRESENT: SMITH, J.P., FAHEY, CARNI, LINDLEY, AND GORSKI, JJ.

EMMETT J. CREAHAN, DIRECTOR, MENTAL HYGIENE LEGAL SERVICE, BUFFALO (KEVIN S. DOYLE OF COUNSEL), FOR RESPONDENT–APPELLANT. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (MICHAEL CONNOLLY OF COUNSEL), FOR PETITIONER–RESPONDENT.

MEMORANDUM AND ORDER

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

Memorandum: Respondent appeals from an order determining that he is a dangerous sex offender requiring confinement pursuant to Mental Hygiene Law article 10 and committing him to a secure treatment facility. We reject respondent's contention that petitioner failed to establish by clear and convincing evidence at the dispositional hearing that “respondent is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility” (§ 10.07[f] ). We are “[m]indful that Supreme Court was in the best position to evaluate the weight and credibility of the conflicting psychiatric testimony presented ․, [and] we defer to the court's decision to credit [the testimony of petitioner's] expert” (Matter of State of New York v. Pierce, 79 AD3d 1779, 1781, lv denied 16 NY3d 712 [internal quotation marks omitted]; see Matter of State of New York v Motzer, 79 AD3d 1687, 1688).

Patricia L. Morgan

Clerk of the Court

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