Opinion
2014-09-26
In the Matter of the STATE of New York, Petitioner–Respondent, v. Roy CASTLEBERRY, Respondent–Appellant.
Michael J. Stachowski, P.C., Buffalo (Michael J. Stachowski of Counsel), for Respondent–Appellant. Eric T. Schneiderman, Attorney General, Albany (Allyson B. Levine of Counsel), for Petitioner–Respondent.
Michael J. Stachowski, P.C., Buffalo (Michael J. Stachowski of Counsel), for Respondent–Appellant. Eric T. Schneiderman, Attorney General, Albany (Allyson B. Levine of Counsel), for Petitioner–Respondent.
PRESENT: SCUDDER, P.J., SMITH, CENTRA, FAHEY AND PERADOTTO, JJ.
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. Respondent contends that the admission of “hearsay basis evidence” from petitioner's experts deprived him of a fair trial and violated his constitutional right to due process (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). Inasmuch as respondent did not object to any of the allegedly improper evidence, we conclude that he failed to preserve his contention for our review ( see Matter of State of New York v. Muench, 85 A.D.3d 1581, 1582, 925 N.Y.S.2d 291; Matter of State of New York v. Wilkes [Appeal No. 2], 77 A.D.3d 1451, 1452, 908 N.Y.S.2d 495). We decline to exercise our power to review that contention in the interest of justice ( see Muench, 85 A.D.3d at 1582, 925 N.Y.S.2d 291).
Respondent's challenge to the reliability of the actuarial assessment instruments used by petitioner's expert is actually a challenge “to the weight of that evidence rather than its admissibility” (Matter of State of New York v. Timothy EE., 97 A.D.3d 996, 998, 949 N.Y.S.2d 232; see Matter of State of New York v. High, 83 A.D.3d 1403, 1403–1404, 919 N.Y.S.2d 452, lv. denied17 N.Y.3d 704, 929 N.Y.S.2d 95, 952 N.E.2d 1090). “Supreme Court was in the best position to evaluate the weight and credibility of the conflicting [psychological and] psychiatric testimony presented ... After independently reviewing the evidence presented at the dispositional hearing and according appropriate deference to the court's decisionto credit the opinion of [petitioner's expert] over that of [respondent's expert] ..., we find no basis to disturb [the court's] determination that respondent was a dangerous sex offender requiring confinement” (Matter of State of New York v. Timothy JJ., 70 A.D.3d 1138, 1144–1145, 895 N.Y.S.2d 568; see Matter of State of New York v. Trombley, 98 A.D.3d 1300, 1301, 951 N.Y.S.2d 782, lv. denied20 N.Y.3d 856, 2013 WL 105649; Timothy EE., 97 A.D.3d at 999, 949 N.Y.S.2d 232).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.