IN RE: STATE of New York (2018)

MEMORANDUM AND ORDER

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

Memorandum:  On appeal from an order revoking his prior regimen of strict and intensive supervision and treatment (SIST), determining that he is a dangerous sex offender requiring confinement and committing him to a secure treatment facility (see Mental Hygiene Law § 10.01 et seq.), respondent contends that Supreme Court erred in determining that he has a mental abnormality that predisposes him to commit sex offenses.  That contention is not properly before us.  “In a SIST revocation hearing, like in a dispositional hearing following trial on the issue of mental abnormality, the statute gives the court only two dispositional choices-to order civil confinement or to continue a regimen of SIST ․, both of which assume that respondent has a mental abnormality.  The only issue before the court, therefore, is whether the mental abnormality is such that respondent requires confinement ․ In light of that statutory structure, we see no need to address respondent's contention[ ] that the evidence of mental abnormality was insufficient” (Matter of State of New York v. Breeden, 140 A.D.3d 1649, 1649, 34 N.Y.S.3d 814 [4th Dept. 2016];  see Matter of State of New York v. David HH., 147 AD.3.d 1230, 1233, 48 N.Y.S.3d 791 [3d Dept. 2017], lv denied 29 N.Y.3d 913, 2017 WL 2682593 [2017] ).

Contrary to respondent's further contention, petitioner established by clear and convincing evidence (see Mental Hygiene Law § 10.11 [d][4] ) that respondent was a dangerous sex offender requiring confinement, i.e., a person “suffering from a mental abnormality involving such a strong predisposition to commit sex offenses, and such an inability to control behavior, that [he] is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility” (§ 10.03[e];  see Matter of State of New York v. George N., 160 A.D.3d 28, 30, 70 N.Y.S.3d 699 [4th Dept. 2018] ).  Although respondent's SIST violations did not involve sexual conduct, they demonstrated an “increased sexual preoccupation, [as well as] ongoing deceptive, manipulative, and victim-grooming behaviors.”  Moreover, respondent had resisted supervision and seemed unable to refrain from his “impulsive, high-risk behaviors in total disregard of the known potential negative consequences of such behaviors.”  We thus conclude that the SIST violations “[bore] a close causative relationship to sex offending” (George N., 160 A.D.3d at 33, 70 N.Y.S.3d 699), and “ ‘remain highly relevant regarding the level of danger that [respondent] poses to the community with respect to his risk of recidivism’ ” (Matter of State of New York v. Jason H., 82 A.D.3d 778, 780, 917 N.Y.S.2d 708 [2d Dept. 2011];  see Matter of State of New York v. William J. [appeal No. 2], 151 A.D.3d 1890, 1891–1892, 58 N.Y.S.3d 789 [4th Dept. 2017];  cf. George N., 160 A.D.3d at 33–34, 70 N.Y.S.3d 699;  Matter of State of New York v. Husted, 145 A.D.3d 1637, 1638, 44 N.Y.S.3d 314 [4th Dept. 2016] ).