Opinion
2014-01-29
In the Matter of STATE of New York, respondent, v. LARRY B. (Anonymous), appellant.
Steven A. Feldman, Uniondale, N.Y., for appellant. Eric T. Schneiderman, Attorney General, New York, N.Y. (Cecelia C. Chang and Mark H. Shawhan of counsel), for respondent.
Steven A. Feldman, Uniondale, N.Y., for appellant. Eric T. Schneiderman, Attorney General, New York, N.Y. (Cecelia C. Chang and Mark H. Shawhan of counsel), for respondent.
MARK C. DILLON, J.P., JOHN M. LEVENTHAL, L. PRISCILLA HALL, and LEONARD B. AUSTIN, JJ.
In a proceeding pursuant to Mental Hygiene Law article 10 for the civil management of Larry B., a sex offender allegedly requiring civil management, Larry B. appeals from an order of the Supreme Court, Kings County (Garnett, J.), dated October 5, 2012, which, upon a finding, made after a jury trial, that he suffers from a mental abnormality as defined in Mental Hygiene Law § 10.03(i), and upon a determination, made after a dispositional hearing, that he is a dangerous sex offender requiring civil confinement, in effect, granted the petition and directed that he be committed to a secure treatment facility for care, treatment, and control until such time as he no longer requires confinement.
ORDERED that the order is affirmed, without costs or disbursements.
Prior to his release from prison, where he was incarcerated for, inter alia, attempted sodomy in the first degree and sexual abuse in the first degree of a seven-year-old girl, the State of New York commenced this proceeding pursuant to Mental Hygiene Law article 10 seeking civil management of the appellant. Following a jury trial, the jury found that the appellant suffered from a mental abnormality within the meaning of Mental Hygiene Law § 10.03(i). In addition, after a dispositional hearing, the Supreme Court determined that the appellant is a dangerous sex offender requiring civil confinement, rather than strict and intensive supervision and treatment (hereinafter SIST), and committed him to a secure treatment facility for care, treatment, and control until such time as he no longer requires confinement.
Although the expert testimony presented by the appellant conflicted with the expert testimony presented by the State, the jury's verdict finding that the appellant suffered from a mental abnormality predisposing him to commit sex offenses and causing him to have serious difficulty controlling his criminal sexual conduct within the meaning of Mental Hygiene Law § 10.03(i) was supported by a fair interpretation of the evidence ( see Matter of State of New York v. Edison G., 107 A.D.3d 723, 724, 966 N.Y.S.2d 510; Matter of State of New York v. Andre L., 84 A.D.3d 1248, 1250, 924 N.Y.S.2d 467; Matter of State of New York v. Timothy JJ., 70 A.D.3d 1138, 1142, 895 N.Y.S.2d 568; Matter of State of New York v. Shawn X., 69 A.D.3d 165, 169, 887 N.Y.S.2d 692; Matter of State of New York v. Derrick B., 68 A.D.3d 1124, 1126, 892 N.Y.S.2d 140).
Furthermore, the Supreme Court properly found, after the dispositional hearing, by clear and convincing evidence, that the appellant's level of dangerousness requires confinement rather than SIST ( seeMental Hygiene Law § 10.07[f]; Matter of William II. v. State of New York, 110 A.D.3d 1282, 1283, 974 N.Y.S.2d 158; Matter of State of New York v. Lonard ZZ., 100 A.D.3d 1279, 1281, 954 N.Y.S.2d 675; Matter of State of New York v. Clarence D., 82 A.D.3d 776, 778, 917 N.Y.S.2d 700). Contrary to the appellant's contention, the fact that he was not arrested for any sex-related crimes during the approximately 15 months he was out on parole is not dispositive ( see Matter of State of New York v. Jason H., 82 A.D.3d 778, 780, 917 N.Y.S.2d 708; Matter of State of New York v. Donald N., 63 A.D.3d 1391, 1394, 881 N.Y.S.2d 542). The Supreme Court's determination to credit the testimony of the State's expert witness instead of the testimony of the appellant's expert witness is supported by the record, and thus, we find no basis to disturb it ( see Matter of State of New York v. Richard VV., 74 A.D.3d 1402, 1404, 903 N.Y.S.2d 184; Matter of State of New York v. R.W., 99 A.D.3d 1010, 1011, 953 N.Y.S.2d 139; Matter of State of New York v. Andrew J.W., 85 A.D.3d 805, 807, 924 N.Y.S.2d 576).
The appellant's remaining contention, that the Supreme Court committed reversible error in its handling of a jury note, is unpreserved for appellate review and, in any event, without merit.