Opinion
2014-07-3
In the Matter of STATE of New York, Petitioner–Respondent, v. Michael C. BASS, A Patient in the Custody of the Office of Mental Health, Respondent–Appellant.
Davison Law Office PLLC, Canandaigua (Mark C. Davison of Counsel), for Respondent–Appellant. Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Treasure of Counsel), for Petitioner–Respondent.
Davison Law Office PLLC, Canandaigua (Mark C. Davison of Counsel), for Respondent–Appellant. Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Treasure of Counsel), for Petitioner–Respondent.
PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, VALENTINO, and DeJOSEPH, JJ.
MEMORANDUM:
Respondent appeals from an amended order pursuant to Mental Hygiene Law article 10 determining, following a nonjury trial, that he is a dangerous sex offender ( see§ 10.03[e] ) and directing that he be committed to a secure treatment facility. We affirm.
We reject respondent's contention that the use of hearsay by petitioner's experts denied him due process. Supreme Court properly permitted petitioner's experts, two psychologists, to testify about the conduct to which respondent pleaded guilty, his total number of victims, his offense pattern, particular incidents of uncharged child sexual abuse, and his sexual activity while incarcerated inasmuch as the records of such matters were shown to be reliable based on respondent's convictions or his admissions during the interviews with the experts ( see Matter of State of New York v. Floyd Y., 22 N.Y.3d 95, 109, 979 N.Y.S.2d 240, 2 N.E.3d 204;see also Matter of State of New York v. Anonymous, 82 A.D.3d 1250, 1251, 920 N.Y.S.2d 195,lv. denied17 N.Y.3d 702, 2011 WL 2237307;see generally Matter of State of New York v. Wilkes [Appeal No. 2], 77 A.D.3d 1451, 1452–1453, 908 N.Y.S.2d 495). We note in any event that, in this nonjury trial, the court is “ ‘presumed to be able to distinguish between admissible evidence and inadmissible evidence [and to abide by the limited purpose of hearsay evidence when admitted] and to render a determination based on the former’ ” (Matter of State of New York v. Mark S., 87 A.D.3d 73, 80, 924 N.Y.S.2d 661,lv. denied17 N.Y.3d 714, 2011 WL 4977120).
Respondent further contends that the evidence is not legally sufficient to establish that he requires confinement. We reject that contention. Petitioner's proof consisted of the testimony of its two experts that respondent suffers from pedophilia. Extensive documentary evidence was admitted consisting of, inter alia, respondent's records from the New York State Department of Correctional Services, New York State Office of Mental Health, presentence investigation of probation, and the United States Air Force. Upon our review of the record, we conclude that the experts' testimony and the documentary evidence established by the requisite clear and convincing evidence that respondent “has 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 § 10.07[f]; see Matter of State of New York v. Stein, 85 A.D.3d 1646, 1648, 924 N.Y.S.2d 231,affd.20 N.Y.3d 99, 956 N.Y.S.2d 462, 980 N.E.2d 510,cert. denied––– U.S. ––––, 133 S.Ct. 1500, 185 L.Ed.2d 556). Respondent acknowledged in his brief that this Court in Stein previously rejected the contentions, raised by respondent herein, that due process requires proof beyond a reasonable doubt and that the clear and convincing evidence standard of proof is unconstitutional. We perceive no reason to depart from our decision in Stein. We also reject respondent's contention that remittal is required for the court to consider the possibility of a “least restrictive alternative” in rendering its disposition inasmuch as there is no such requirement ( see Matter of State of New York v. Gooding, 104 A.D.3d 1282, 1282, 961 N.Y.S.2d 683,lv. denied21 N.Y.3d 862, 2013 WL 4459826). Finally, respondent's contention that the court's delay in rendering its final determination denied him due process is unpreserved for our review ( see Matter of State of New York v. Trombley, 98 A.D.3d 1300, 1302, 951 N.Y.S.2d 782,lv. denied 20 N.Y.3d 856, 2013 WL 105649), and we decline to review it in the interest of justice ( see generally Matter of State of New York v. Campany, 77 A.D.3d 92, 101, 905 N.Y.S.2d 419,lv. denied15 N.Y.3d 713, 2010 WL 4183541).
It is hereby ORDERED that the amended order so appealed from is unanimously affirmed without costs.