IN RE: THE STATE OF NEW YORK

Reset A A Font size: Print

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

IN RE: THE STATE OF NEW YORK, PETITIONER–RESPONDENT, v. JOEY BLAIR, RESPONDENT–APPELLANT.

CA 10–01692

Decided: September 30, 2011

PRESENT:  SMITH, J.P., FAHEY, PERADOTTO, LINDLEY, AND SCONIERS, JJ. EMMETT J. CREAHAN, DIRECTOR, MENTAL HYGIENE LEGAL SERVICE, BUFFALO (KEVIN S. DOYLE OF COUNSEL), FOR RESPONDENT–APPELLANT. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (PATRICK J. WALSH 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 established by clear and convincing evidence at the dispositional hearing that he is a dangerous sex offender requiring confinement (see § 10.03[e];  § 10.07[f] ).  Supreme Court, as the trier of fact, was “in the best position to evaluate the weight and credibility of the conflicting psychiatric testimony presented” (Matter of State of New York v. Timothy JJ., 70 AD3d 1138, 1144;  see Matter of State of New York v Richard VV., 74 AD3d 1402, 1404), and we discern no basis to disturb the court's decision to credit the testimony of petitioner's expert over that of respondent's expert (see Matter of State of New York v Boutelle, 85 AD3d 1607).   We reject the further contention of respondent that the court erred in permitting petitioner's expert to testify concerning his treatment progress at Central New York Psychiatric Center (CNYPC).  Petitioner's expert reviewed the CNYPC treatment records of respondent and thus was competent to testify with respect to conclusions that he drew therefrom (see generally Matter of State of New York v Fox, 79 AD3d 1782, 1783–1784).   The admittedly limited familiarity of the expert with CNYPC's treatment program goes “ ‘to [the] weight of his ․ opinion as evidence, not its admissibility’ “ (Kabalan v. Hoghooghi, 77 AD3d 1350, 1351;  see Anderson v House of Good Samaritan Hosp., 44 AD3d 135, 143) and, in any event, the expert testified that respondent's progress or lack thereof at CNYPC did not significantly factor into his opinion.

Finally, respondent's constitutional and statutory challenges to the CNYPC treatment program are not properly before us inasmuch as they are unpreserved for our review (see generally Matter of Giovanni K., 68 AD3d 1766, 1767, lv denied 14 NY3d 707;  Matter of Wood v. Goord, 265 A.D.2d 854).   In addition, we note that many of those contentions involve matters outside the record on appeal, and we are therefore unable to review them (see generally Matter of State of New York v Pierce, 79 AD3d 1779, 1781, lv denied 16 NY3d 712;  Matter of State of New York v. Campany, 77 AD3d 92, 99–100, lv denied 15 NY3d 713).   In any event, on the record before us, there is no evidence that petitioner or CNYPC failed to fulfill its treatment responsibilities or violated respondent's due process rights.

Patricia L. Morgan

Clerk of the Court