Opinion
1032 CA 19-01889
06-11-2021
In the Matter of the Application for Discharge of BRANDON D., From Central New York Psychiatric Center, Pursuant to Mental Hygiene Law Section 10.09, Petitioner-Appellant, v. STATE of New York, Respondent-Respondent.
KEVIN WILSON, ACTING DIRECTOR, MENTAL HYGIENCE LEGAL SERVICE, UTICA (MICHAEL H. MCCORMICK OF COUNSEL), FOR PETITIONER-APPELLANT. LETITIA JAMES, ATTORNEY GENERAL, ALBANY (JONATHAN D. HITSOUS OF COUNSEL), FOR RESPONDENT-RESPONDENT.
KEVIN WILSON, ACTING DIRECTOR, MENTAL HYGIENCE LEGAL SERVICE, UTICA (MICHAEL H. MCCORMICK OF COUNSEL), FOR PETITIONER-APPELLANT.
LETITIA JAMES, ATTORNEY GENERAL, ALBANY (JONATHAN D. HITSOUS OF COUNSEL), FOR RESPONDENT-RESPONDENT.
PRESENT: CENTRA, J.P., LINDLEY, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Petitioner appeals from an order of County Court, entered after an annual review hearing pursuant to Mental Hygiene Law § 10.09 (d), determining that he is a dangerous sex offender requiring confinement under section 10.03 (e) and directing that he continue to be confined to a secure treatment facility (see § 10.09 [h] ). We affirm.
We reject petitioner's contention that the evidence is legally insufficient to establish that he is a dangerous sex offender requiring confinement. Pursuant to the Mental Hygiene Law, a person may be found to be a dangerous sex offender requiring confinement if that person "suffer[s] from a mental abnormality involving such a strong predisposition to commit sex offenses, and such an inability to control [his or her] behavior, that the person is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility" (§ 10.03 [e]). The Mental Hygiene Law defines a mental abnormality as "a congenital or acquired condition, disease or disorder that affects the emotional, cognitive, or volitional capacity of a person in a manner that predisposes him or her to the commission of conduct constituting a sex offense and that results in that person having serious difficulty in controlling such conduct" (§ 10.03 [i]).
Petitioner contends that the evidence is legally insufficient to prove that he had a mental abnormality because he was diagnosed with sexual sadism disorder only provisionally and the remaining diagnoses of ASPD, psychopathy and various substance use disorders are insufficient to support a finding that he is predisposed to sexually offend. Viewing the evidence in the light most favorable to respondent (see Matter of State of New York v. John S. , 23 N.Y.3d 326, 348, 991 N.Y.S.2d 532, 15 N.E.3d 287 [2014], rearg denied 24 N.Y.3d 933, 993 N.Y.S.2d 544, 17 N.E.3d 1141 [2014] ), we conclude that it is legally sufficient to establish by clear and convincing evidence that petitioner suffers from a mental abnormality as that term is defined by the Mental Hygiene Law (see Matter of Vega v. State of New York , 140 A.D.3d 1608, 1608-1609, 34 N.Y.S.3d 810 [4th Dept. 2016] ). To meet the statutory definition of mental abnormality, "not only must the State establish by clear and convincing evidence the existence of a predicate ‘condition, disease or disorder,’ it must also link that ‘condition, disease or disorder’ to a person's predisposition to commit conduct constituting a sex offense and to that person's ‘serious difficulty in controlling such conduct’ " ( Matter of State of New York v. Dennis K. , 27 N.Y.3d 718, 726, 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] ).
Although petitioner's diagnoses, alone, are insufficient to support a finding of mental abnormality that would predispose a person to commit sex offenses (see Matter of State of New York v. Donald DD. , 24 N.Y.3d 174, 190, 996 N.Y.S.2d 610, 21 N.E.3d 239 [2014] ; Matter of Groves v. State of New York , 124 A.D.3d 1213, 1214, 1 N.Y.S.3d 588 [4th Dept. 2015] ), both petitioner's expert and respondent's expert also opined that petitioner exhibited psychopathic traits, and respondent's expert opined that petitioner exhibited at least five behavioral traits of sexual sadism. As a result, respondent's expert rendered a provisional diagnosis of sexual sadism disorder.
Petitioner correctly concedes that a provisional diagnosis in combination with other diagnoses can constitute legally sufficient evidence of a mental abnormality (see Matter of State of New York v. Steven M. , 159 A.D.3d 1421, 1422, 73 N.Y.S.3d 826 [4th Dept. 2018], lv denied 31 N.Y.3d 913, 2018 WL 3148917 [2018] ; Matter of State of New York v. Derrick B. , 68 A.D.3d 1124, 1126, 892 N.Y.S.2d 140 [2d Dept. 2009] ), but he contends that, inasmuch as neither expert was able to conclude to a reasonable degree of medical certainty that he actually suffered from sexual sadism, there is insufficient evidence that he suffers from a mental abnormality. We reject that contention. Inasmuch as the provisional diagnosis of sexual sadism disorder is supported by the record, we conclude that there is "sufficient evidence of petitioner's diagnosis of ASPD, along with sufficient evidence of other diagnoses and/or conditions, to sustain a finding of mental abnormality" ( Vega , 140 A.D.3d at 1609, 34 N.Y.S.3d 810 ; see Matter of Gooding v. State of New York , 144 A.D.3d 1644, 1645, 41 N.Y.S.3d 842 [4th Dept. 2016] ).
We further conclude that the determination that petitioner has such a mental abnormality is based on a fair interpretation of the evidence and, as a result, is not against the weight of the evidence (see Matter of State of New York v. Orlando T. , 184 A.D.3d 1149, 1149, 123 N.Y.S.3d 884 [4th Dept. 2020] ; Matter of State of New York v. Gierszewski , 81 A.D.3d 1473, 1474, 916 N.Y.S.2d 729 [4th Dept. 2011], lv denied 17 N.Y.3d 702, 2011 WL 2183880 [2011] ). The 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. Gooding , 104 A.D.3d 1282, 1282, 961 N.Y.S.2d 683 [4th Dept. 2013], lv denied 21 N.Y.3d 862, 2013 WL 4459826 [2013] [internal quotation marks omitted]; see Matter of State of New York v. Scholtisek , 145 A.D.3d 1603, 1605, 45 N.Y.S.3d 732 [4th Dept. 2016] ), and we see "no basis to disturb [the court's] decision to credit the testimony of [respondent's] expert over that of [petitioner's] expert" ( Gooding , 104 A.D.3d at 1282, 961 N.Y.S.2d 683 ; see Matter of Edward T. v. State of New York , 185 A.D.3d 1423, 1425, 128 N.Y.S.3d 117 [4th Dept. 2020] ).