IN RE: STATE of New York (2020)

DECISION & ORDER

ORDERED that the order is affirmed, without costs or disbursements.

In 2005, the appellant pleaded guilty to attempted course of sexual conduct against a child in the first degree for sexually abusing his girlfriend's then 11–year–old daughter and 10–year–old son over a period of 4 years.  In January 2013, the State of New York commenced a proceeding pursuant to Mental Hygiene Law article 10 alleging that the appellant was a sex offender requiring civil management.  Following a nonjury trial, the Supreme Court found that he suffered from a mental abnormality and required a strict and intensive supervision and treatment (hereinafter SIST) regime.  This Court affirmed the Supreme Court's determination (see Matter of State of New York v. Claude McC., 163 A.D.3d 686, 81 N.Y.S.3d 133).

While on SIST, the appellant violated several conditions of his SIST regimen.  As a result, in October 2017, the State filed a petition to revoke the appellant's release pursuant to the SIST regimen and confine him in a secure facility as a dangerous sex offender.  After a hearing, the Supreme Court determined that the State had met its burden of showing by clear and convincing evidence that the appellant was a dangerous sex offender requiring civil confinement.

Contrary to the appellant's contention, the evidence at the hearing was legally sufficient to establish that the appellant requires civil confinement.  The State's proof consisted of the report and testimony of a psychologist who evaluated the appellant.  His opinion that the appellant lacked the ability to control his behavior was based on, among other things, the appellant's use of drugs despite his awareness that his ability to control his sexual urges was impaired by his drug use (see Matter of State of New York v. Jameek B., 155 A.D.3d 1051, 63 N.Y.S.3d 871;  Matter of State of New York v. William J., 151 A.D.3d 1890, 58 N.Y.S.3d 789).  The appellant also scored as a high risk to reoffend on actuarial assessments.  We further conclude that the Supreme Court's determination that the appellant is a dangerous sex offender requiring civil confinement was warranted by the facts.

DILLON, J.P., ROMAN, LASALLE and WOOTEN, JJ., concur.