Opinion
587 CA 19-01230
07-17-2020
In the Matter of The Application for Discharge of EDWARD T., Consecutive No. 345241, From Central New York Psychiatric Center, Pursuant To Mental Hygiene Law Section 10.09, Petitioner-Appellant, v. STATE of New York, Respondent-Respondent.
SARAH M. FALLON, DIRECTOR, MENTAL HYGIENE LEGAL SERVICE, UTICA (STEVEN J. HUNTZINGER OF COUNSEL), FOR PETITIONER-APPELLANT. LETITIA JAMES, ATTORNEY GENERAL, ALBANY (KATHLEEN M. TREASURE OF COUNSEL), FOR RESPONDENT-RESPONDENT.
SARAH M. FALLON, DIRECTOR, MENTAL HYGIENE LEGAL SERVICE, UTICA (STEVEN J. HUNTZINGER OF COUNSEL), FOR PETITIONER-APPELLANT.
LETITIA JAMES, ATTORNEY GENERAL, ALBANY (KATHLEEN M. TREASURE OF COUNSEL), FOR RESPONDENT-RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, NEMOYER, CURRAN, 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] ).
Here, 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] ), we conclude that it is legally sufficient to establish by clear and convincing evidence " ‘the predisposition prong of the mental abnormality test’ " ( Matter of State of New York v. Anthony B. , 180 A.D.3d 688, 691, 118 N.Y.S.3d 230 [2d Dept. 2020] ; see also Matter of Vega v. State of New York , 140 A.D.3d 1608, 1608-1609, 34 N.Y.S.3d 810 [4th Dept. 2016] ). Respondent's expert diagnosed petitioner with pedophilic disorder, zoophilia, alcohol use disorder, and cannabis use disorder, which, when viewed in combination, predisposed petitioner to commit sex offenses and were sufficiently connected to his sex offending behavior (see Matter of State of New York v. Richard TT. , 132 A.D.3d 72, 76-77, 14 N.Y.S.3d 824 [3d Dept. 2015], affd 27 N.Y.3d 718, 37 N.Y.S.3d 765, 59 N.E.3d 500 [2016], cert denied ––– U.S. ––––, 137 S. Ct. 836, 197 L.Ed.2d 75 [2017] ; Matter of State of New York v. Peters , 144 A.D.3d 1654, 1654-1655, 46 N.Y.S.3d 298 [4th Dept. 2016] ). We reject petitioner's argument that any failure by respondent's expert to adhere strictly to each criterion listed in the Diagnostic and Statistical Manual of Mental Disorders rendered her diagnosis of pedophilic disorder insufficient to support the court's determination (see generally Peters , 144 A.D.3d at 1655, 46 N.Y.S.3d 298 ; Matter of State of New York v. Pierce , 79 A.D.3d 1779, 1780, 914 N.Y.S.2d 547 [4th Dept. 2010], lv denied 16 N.Y.3d 712, 2011 WL 1643556 [2011] ).
We further conclude that the evidence is legally sufficient to establish by clear and convincing evidence that petitioner has "serious difficulty in controlling" his sexual conduct ( Mental Hygiene Law § 10.03 [i] ; see Matter of State of New York v. James R.C. , 165 A.D.3d 1612, 1613, 85 N.Y.S.3d 314 [4th Dept. 2018] ; Matter of Allan M. v. State of New York , 163 A.D.3d 1493, 1494, 80 N.Y.S.3d 838 [4th Dept. 2018], lv denied 32 N.Y.3d 908, 2018 WL 5932602 [2018] ). Respondent established that petitioner has made very little progress in sex offender treatment based on his sporadic attendance and superficial participation. In general, petitioner has shown a lack of interest in meaningfully discussing his prior offenses and has not been able to develop insight into his offense cycle (see Allan M. , 163 A.D.3d at 1494, 80 N.Y.S.3d 838 ; Matter of Pierce v. State of New York , 148 A.D.3d 1619, 1621, 50 N.Y.S.3d 712 [4th Dept. 2017] ).
Respondent's expert also established that by not understanding his sex offense cycle and by failing to create a relapse prevention plan, petitioner did not reduce the risk that he would reoffend (see Matter of Billinger v. State of New York , 137 A.D.3d 1757, 1758, 27 N.Y.S.3d 423 [4th Dept. 2016], lv denied 27 N.Y.3d 911, 2016 WL 3553381 [2016] ). For that and the aforementioned reasons, we also conclude that respondent met its burden of establishing that petitioner has "such an inability to control [his] 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 generally Matter of State of New York v. Michael M. , 24 N.Y.3d 649, 658-659, 2 N.Y.S.3d 830, 26 N.E.3d 769 [2014] ).
Finally, we conclude that the court's determination is not against the weight of the evidence because there is "no basis to disturb [the court's] decision to credit the testimony of [respondent's] expert over that of [petitioner's expert]" ( Matter of State of New York v. Connor , 134 A.D.3d 1577, 1578, 21 N.Y.S.3d 920 [4th Dept. 2015], lv denied 27 N.Y.3d 903, 2016 WL 1312793 [2016] [internal quotation marks omitted] ).