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. KEITH REEVE, RESPONDENT–APPELLANT.

CA 10–01139

Decided: September 30, 2011

PRESENT: SCUDDER, P.J., SMITH, LINDLEY, SCONIERS, AND GORSKI, JJ.

EMMETT J. CREAHAN, DIRECTOR, MENTAL HYGIENE LEGAL SERVICE, UTICA (JANINE E. FRANK OF COUNSEL), FOR RESPONDENT–APPELLANT. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (KATHLEEN M. ARNOLD 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. Contrary to respondent's contention, we conclude that petitioner met its burden of establishing by clear and convincing evidence that respondent suffers from a mental abnormality (see Matter of State of New York v Farnsworth, 75 AD3d 14, 17, appeal dismissed 15 NY3d 848; see generally § 10.03[i] ). Petitioner also established by clear and convincing evidence that respondent has such an inability to control his behavior that he “is likely to be a danger to others and to commit sex offenses if not confined” (§ 10.07[f] ). Thus, Supreme Court's determination that respondent should be committed to a secure treatment facility is not against the weight of the evidence (see generally id.).

“Respondent's contention regarding the order issued following the probable cause hearing is not properly before us because no appeal lies from such an order” (Matter of State of New York v. Stein, 85 AD3d 1646, 1648; see Mental Hygiene Law § 10.13[b] ). Respondent's further contention regarding the standard of proof is not preserved for our review inasmuch as he failed to raise it before the trial court (see Matter of State of New York v Gierszewski, 81 AD3d 1473, lv denied 17 NY3d 702; Matter of State of New York v Chrisman, 75 AD3d 1057; cf. Matter of State of New York v Rashid, 16 NY3d 1, 13). In any event, respondent's contention is not properly before us because it is raised for the first time in his reply brief (see Matter of State of New York v Zimmer [appeal No. 4], 63 AD3d 1563; see generally Turner v. Canale, 15 AD3d 960, lv denied 5 NY3d 702).

We have considered respondent's remaining contentions and conclude that they are without merit.

Patricia L. Morgan

Clerk of the Court

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