IN RE: STATE of New York

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

IN RE: STATE of New York, Petitioner–Respondent, v. SCOTT W., Respondent–Appellant.

402

Decided: April 27, 2018

PRESENT:  SMITH, J.P., CENTRA, NEMOYER, CURRAN, AND TROUTMAN, JJ. MULDOON, GETZ & RESTON, ROCHESTER (GARY MULDOON OF COUNSEL), FOR RESPONDENT–APPELLANT. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (FREDERICK A. BRODIE OF COUNSEL), FOR PETITIONER–RESPONDENT.

MEMORANDUM AND ORDER

Petitioner commenced this proceeding pursuant to Mental Hygiene Law article 10, alleging that respondent is a sex offender requiring civil management.  After a jury trial, the jury found that respondent is a detained sex offender suffering from a mental abnormality (see §§ 10.03[i];  10.07 [d] ).  Supreme Court then held a dispositional hearing and found that respondent is a dangerous sex offender requiring confinement and committed him to a secure treatment facility (see § 10.07[f] ).  Respondent now appeals, and we affirm.

Contrary to respondent's contention, he was not denied a fair trial by certain evidentiary rulings of the court, which were the result of the failure of respondent's expert witness to update her written report after her review of additional material and a further interview with respondent (see Matter of State of New York v. Robert M., 133 A.D.3d 670, 671–672, 19 N.Y.S.3d 82 [2d Dept. 2015], lv denied 26 N.Y.3d 917, 2016 WL 531548 [2016];  see generally Mental Hygiene Law § 10.06[e] ).  In any event, we conclude that any error is harmless (see generally Matter of State of New York v. Robert F., 25 N.Y.3d 448, 454, 13 N.Y.S.3d 319, 34 N.E.3d 829 [2015];  Matter of State of New York v. Charada T., 23 N.Y.3d 355, 362, 991 N.Y.S.2d 9, 14 N.E.3d 362 [2014] ).

We reject respondent's contention that the evidence is not legally sufficient to establish that he has a mental abnormality.  Petitioner's two expert witnesses and respondent's expert witness all testified that respondent suffers from sexual sadism disorder.  Petitioner's expert witnesses further testified that respondent's deviant thoughts predispose him to commit sex offenses, and his pattern of offending after incarceration and release, as well as his inadequate progress in treatment in addressing his deviance and fantasies, shows that he has serious difficulty controlling his behavior.  We therefore conclude that petitioner met its burden of establishing by clear and convincing evidence that respondent has “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 [respondent] having serious difficulty in controlling such conduct” (Mental Hygiene Law § 10.03[i];  see Matter of Akgun v. State of New York, 148 A.D.3d 1613, 1613–1614, 50 N.Y.S.3d 707 [4th Dept. 2017];  Matter of State of New York v. Bushey, 142 A.D.3d 1375, 1376, 38 N.Y.S.3d 652 [4th Dept. 2016];  see generally Matter of State of New York v. Dennis K., 27 N.Y.3d 718, 734–735, 37 N.Y.S.3d 765, 59 N.E.3d 500 [2016], cert denied ––– U.S. ––––, 137 S.Ct. 579, 196 L.Ed.2d 452 [2016] ).  We further conclude that the verdict is not against the weight of the evidence (see Akgun, 148 A.D.3d at 1614, 50 N.Y.S.3d 707;  Matter of State of New York v. Gierszewski, 81 A.D.3d 1473, 1473–1474, 916 N.Y.S.2d 729 [4th Dept. 2011], lv denied 17 N.Y.3d 702, 2011 WL 2183880 [2011] ).

We further reject respondent's contention that the evidence is not legally sufficient to establish that he requires confinement.  Petitioner's experts opined that respondent is a dangerous sex offender requiring confinement based on, inter alia, his high scores on risk assessment instruments and his insufficient progress in sex offender treatment.  We conclude that petitioner met its burden of establishing by clear and convincing evidence that respondent “suffer[s] 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” (Mental Hygiene Law § 10.03[e];  see Matter of Sincere M. v. State of New York, 156 A.D.3d 1427, 1427, 65 N.Y.S.3d 866 [4th Dept. 2017];  Matter of State of New York v. Parrott, 125 A.D.3d 1438, 1439, 2 N.Y.S.3d 711 [4th Dept. 2015], lv denied 25 N.Y.3d 911, 2015 WL 3618918 [2015] ).  We further conclude that the court's determination is not against the weight of the evidence (see Parrott, 125 A.D.3d at 1439, 2 N.Y.S.3d 711).

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

Memorandum: