Opinion
2013-03-22
In the Matter of the STATE of New York, Petitioner–Respondent, v. Derek GOODING, Respondent–Appellant.
Emmett J. Creahan, Director, Mental Hygiene Legal Service, Buffalo (Margot S. Bennett of Counsel), for Respondent–Appellant. Eric T. Schneiderman, Attorney General, Albany (Allyson B. Levine of Counsel), for Petitioner–Respondent.
Emmett J. Creahan, Director, Mental Hygiene Legal Service, Buffalo (Margot S. Bennett of Counsel), for Respondent–Appellant. Eric T. Schneiderman, Attorney General, Albany (Allyson B. Levine of Counsel), for Petitioner–Respondent.
PRESENT: SMITH, J.P., PERADOTTO, CARNI, VALENTINO, AND MARTOCHE, JJ.
MEMORANDUM:
Respondent appeals from an order revoking his prior regimen of strict and intensive supervision and treatment (SIST), determining that he is a dangerous sex offender requiring confinement and committing him to a secure treatment facility ( seeMental Hygiene Law § 10.01 et seq.). 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] ). Moreover, 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. Blair, 87 A.D.3d 1327, 1327, 929 N.Y.S.2d 818;see Matter of State of New York v. Timothy JJ., 70 A.D.3d 1138, 1144, 895 N.Y.S.2d 568), and we see no basis to disturb its decision to credit the testimony of petitioner's expert over that of respondent's expert ( see Blair, 87 A.D.3d at 1327, 929 N.Y.S.2d 818). We reject respondent's further contention that petitioner was required to “refute the possibility of a less restrictive placement” or that the court was required to specifically address the issue of a less restrictive alternative ( see Matter of State of New York v. Enrique T., 93 A.D.3d 158, 166–167, 937 N.Y.S.2d 203,lv. dismissed18 N.Y.3d 976, 944 N.Y.S.2d 478, 967 N.E.2d 703).
Finally, respondent's constitutional and statutory challenges to the treatment he received while in a regimen of SIST ( seeMental Hygiene Law § 10.11) at Mid–Erie Counseling and Treatment Services (Mid–Erie) are not properly before us inasmuch as they are unpreserved for our review ( see Blair, 87 A.D.3d at 1328, 929 N.Y.S.2d 818;see generally Matter of Giovanni K. [Dawn K.], 68 A.D.3d 1766, 1767, 891 N.Y.S.2d 838,lv. denied14 N.Y.3d 707, 2010 WL 1286815). In any event, on the record before us, there is no evidence that either petitioner or Mid–Erie 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.