Opinion
2011-09-30
In the Matter of the STATE of New York, Petitioner–Respondent,v.Joey BLAIR, Respondent–Appellant.
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.
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:
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 A.D.3d 1138, 1144, 895 N.Y.S.2d 568; see Matter of State of New York v. Richard VV., 74 A.D.3d 1402, 1404, 903 N.Y.S.2d 184), 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 A.D.3d 1607, 925 N.Y.S.2d 299). 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 A.D.3d 1782, 1783–1784, 914 N.Y.S.2d 550). 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 A.D.3d 1350, 1351, 908 N.Y.S.2d 299; see Anderson v. House of Good Samaritan Hosp., 44 A.D.3d 135, 143, 840 N.Y.S.2d 508) 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 A.D.3d 1766, 1767, 891 N.Y.S.2d 838, lv. denied 14 N.Y.3d 707, 2010 WL 1286815; Matter of Wood v. Goord, 265 A.D.2d 854, 696 N.Y.S.2d 597). 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 A.D.3d 1779, 1781, 914 N.Y.S.2d 547, lv. denied 16 N.Y.3d 712, 2011 WL 1643556; Matter of State of New York v. Campany, 77 A.D.3d 92, 99–100, 905 N.Y.S.2d 419, lv. denied 15 N.Y.3d 713, 2010 WL 4183541). 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.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.