IN RE: THE APPLICATION FOR DISCHARGE

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Supreme Court, Appellate Division, Fourth Department.

IN RE: THE APPLICATION FOR DISCHARGE OF CHRISTOPHER J., CONSECUTIVE NO. 545846, FROM CENTRAL NEW YORK PSYCHIATRIC CENTER PURSUANT TO MENTAL HYGIENE LAW SECTION 10.09, PETITIONER–APPELLANT, v. STATE OF NEW YORK, NEW YORK STATE OFFICE OF MENTAL HEALTH AND NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, RESPONDENTS–RESPONDENTS.

CA 16–00451

Decided: April 28, 2017

PRESENT:  WHALEN, P.J., SMITH, CENTRA, TROUTMAN, AND SCUDDER, JJ. EMMETT J. CREAHAN, DIRECTOR, MENTAL HYGIENE LEGAL SERVICE, UTICA (GIGI E. MYERS OF COUNSEL), FOR PETITIONER–APPELLANT. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (PATRICK A. WOODS OF COUNSEL), FOR RESPONDENTS–RESPONDENTS.

MEMORANDUM AND ORDER

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

Memorandum:  Petitioner appeals from an order pursuant to Mental Hygiene Law article 10 in which Supreme Court determined, following a nonjury trial, that he has a mental abnormality that predisposes him to committing sex offenses (see § 10.03[i] ) and that he is a sex offender requiring strict and intensive supervision.  Contrary to petitioner's contention, we conclude that the evidence is legally sufficient to support the court's determination that he has a mental abnormality within the meaning of Mental Hygiene Law § 10.03(i).  Respondents' expert psychologist “presented ‘[a ] detailed psychological portrait’ that enabled [her] to determine the level of control [petitioner] had over his conduct” (Matter of State of New York v. Dennis K., 27 NY3d 718, 734, cert denied _ U.S. _, 137 S Ct 579, quoting Matter of State of New York v. Donald DD., 24 NY3d 174, 188).  That portrait included petitioner's diagnoses of pedophilic disorder and personality disorder with antisocial and narcissistic traits, which in combination created “the perfect storm” that predisposes petitioner to commit sexual offenses and causes him difficulty in controlling his pedophilic urges.  In addition, respondents' expert relied upon petitioner's “prolific offending history” to support her conclusion that petitioner has serious difficulty in controlling his sexual conduct.  Respondents thereby sustained their burden of establishing by clear and convincing evidence that petitioner suffers from “a congenital or acquired condition, disease or disorder that affects [his] emotional, cognitive, or volitional capacity ․ in a manner that predisposes him ․ to the commission of conduct constituting a sex offense and that results in [him] having serious difficulty in controlling such conduct” (§ 10.03[i];  see Matter of State of New York v Gierszewski, 81 AD3d 1473, 1473, lv denied 17 NY3d 702).

We further conclude that the court's determination that petitioner suffers from a mental abnormality within the meaning of the statute is not against the weight of the evidence.  The testimony of petitioner's expert that petitioner demonstrated control over his offending behavior by exhibiting patience in his pattern of grooming his child victims and their adult caretakers raised a credibility issue that the court was entitled to resolve against him.  The court's determination is entitled to great deference, given the court's “opportunity to evaluate the weight and credibility of conflicting expert testimony” (Matter of State of New York v. Chrisman, 75 AD3d 1057, 1058).

Frances E. Cafarell

Clerk of the Court