| Matter of State of New York v Timothy JJ. |
| 2010 NY Slip Op 01031 [70 AD3d 1138] |
| February 11, 2010 |
| Appellate Division, Third Department |
| In the Matter of State of New York, Respondent, v Timothy JJ.,Appellant. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Julie S. Mereson of counsel), forrespondent.
Peters, J. Appeal from an order of the Supreme Court (Coccoma, J.), entered September 3,2008 in Otsego County, which, in a proceeding pursuant to Mental Hygiene Law article 10,found respondent to be a dangerous sex offender and confined him to a secure treatment facility.
In 2002, respondent pleaded guilty to attempted course of sexual conduct against a child inthe second degree stemming from his sexual abuse of two boys, ages 6 and 10, between August2000 and December 2000 and was sentenced to six months in jail to be followed by five years ofprobation. In 2004, while on probation, respondent was arrested after police found numerousvideo clips and pictures of child pornography on his computer. He thereafter pleaded guilty topromoting a sexual performance by a child and was sentenced to a prison term of 2 to 4 years.Because this conviction resulted in a violation of his probation, respondent was also resentencedto a concurrent prison term of 1
In July 2007, prior to the expiration of respondent'ssentence, petitioner commenced this proceeding pursuant to Mental Hygiene Law article 10alleging that respondent was a sex offender requiring civil management. Following a trial, thejury found that he suffers from a "[m]ental abnormality" (Mental Hygiene Law § 10.03[i]). After a dispositional hearing, Supreme Court found respondent to be a dangerous sexoffender in need of confinement (see Mental Hygiene Law § 10.07 [f]) andcommitted him to a secure facility. Respondent appeals.
Respondent initially contends that the jury's verdict is against the weight of the evidence,arguing that, in light of the conflicting expert testimony, petitioner could not have proven byclear and convincing evidence that he suffers from a mental abnormality. Such a verdict,however, "is entitled to great deference given the jury's opportunity to evaluate the weight andcredibility of conflicting expert testimony [and,] if sufficient evidence exists, the verdict will besustained even if other evidence in the record would support a contrary result" (Matter ofState of New York v Shawn X., 69 AD3d 165, 168-169 [3d Dept 2009] [internal quotationmarks and citation omitted]). Upon our review, we find that petitioner sustained its burden ofproving by clear and convincing evidence that respondent suffers from "a congenital or acquiredcondition, disease or disorder that affects [his] emotional, cognitive, or volitional capacity. . . in a manner that predisposes him . . . to the commission ofconduct constituting a sex offense and that results in [him] having serious difficulty incontrolling such conduct" (Mental Hygiene Law § 10.03 [i]).
Petitioner presented the expert testimony of Emilia Rutigliano, a psychiatrist, and KostasKatsavdakis, a psychologist whose primary focus was forensic psychology. Based upon theirindependent interviews with respondent and a review of his records, both Rutigliano andKatsavdakis concluded that respondent is a pedophile suffering from a mental abnormality. Inthat regard, Rutigliano and Katsavdakis opined that the sexual conduct underlying respondent's2002 conviction and the presence of extensive amounts of child pornography on his computer, aswell as respondent's admissions that he was sexually aroused when he fondled the six-year-oldboy, is generally attracted to prepubescent boys with blond hair and blue eyes, and downloadedthe child pornography for his own pleasure and was sexually aroused by watching thoseactivities, sufficiently supported a diagnosis of pedophilia. Although respondent argues that hedoes not meet all of the criteria for pedophilia contained in the American PsychiatricAssociation's Diagnostic and Statistic Manual of Mental Disorders (hereinafter DSM-IV)because the sexual abuse underlying his 2002 conviction occurred over a 3½-month period,as opposed to the six-month period required therein, the DSM-IV criteria do not require thatrespondent actually have engaged in sexual activity with prepubescent children for a period ofsix months. Rather, as explained by both Rutigliano and Katsavdakis, the criteria for pedophiliarequire that he experienced recurrent and intense sexually arousing fantasies, sexual urgesor behaviors with prepubescent children during such a period of time. To that end,Katsavdakis opined that, although respondent's sexual contact with the two prepubescent boysoccurred for a period less than six months, respondent had fantasies involving such sexualactivity for a longer period of time despite not acting on them. Furthermore, in addition to thepossession of child pornography that resulted in his 2004 conviction, the record further revealsthat, in 2001, at the time of the concurrent police investigation into the allegations thatrespondent had sexually abused the two boys, police were also informed by respondent'sstepbrother that respondent had child pornography on his computer. A search warrant wasexecuted for respondent's computer, which was found to contain downloaded photographs ofnaked prepubescent children, and his digital camera, which contained nude photographs of thesix-year-old boy.[*3]
Katsavdakis further opined that, in addition to sufferingfrom pedophilia, respondent suffers from attention deficit hyperactive disorder (hereinafterADHD), a condition that affects respondent's ability to think, reason, and organize his thoughtsand which, in combination with his pedophilia, seriously impairs respondent's ability to refrainfrom acting upon his sexual fantasies and impulses and, in fact, precipitated respondent's priorsex offenses. Indeed, respondent's conduct in downloading child pornography—while onprobation and under threat of returning to prison—and subsequently obtaining Internetcapabilities in violation of the conditions of his parole, further demonstrates his inability tocontrol his sexual urges for prepubescent males.
In contrast, petitioner's expert, psychologist Leonard Bard, opined that respondent did notsuffer from a mental abnormality. Contrary to the opinions rendered by Rutigliano andKatsavdakis, Bard testified that the conduct underlying respondent's 2002 conviction wasinsufficient to support such a diagnosis and that respondent's possession of child pornographywas not relevant in the absence of evidence that he acted on his sexual fantasies or urges. Hefurther opined that respondent neither has a predisposition to commit sex offenses nor a seriousdifficulty in controlling his conduct. According to Bard, respondent does have a sexual interestin adults, but feels uncomfortable with those interests because of his emotional and cognitivelimitations, and respondent's ADHD neither indicates an increased risk that he will commit sexoffenses nor has any relation to a diagnosis of mental abnormality. Bard further opined thatrespondent can control his urges as evidenced by the fact that he was not charged with sexuallyabusing children during the nearly 2½-year period that he was on probation for his variousconvictions.
Faced with these conflicting expert opinions, "the jury was free to make its own credibilitydeterminations and weigh the competing expert testimonies accordingly" (Matter of State ofNew York v Shawn X., 69 AD3d at 171). Given the quality of the evidence supporting theexpert opinions of Rutigliano and Katsavdakis, and according deference to the jury's credibilitydeterminations, we cannot conclude that the jury's verdict is against the weight of the evidence.
Next, we reject respondent's assertion that a host of trial errors singularly and collectivelydeprived him of a fair trial. His contention that Supreme Court erred in allowing the introductionof testimony from his stepbrother as to certain uncharged sexual acts is unpreserved for ourreview (see Horton v Smith, 51 NY2d 798, 799 [1980]; Matter of Jennifer VV.,241 AD2d 622, 624 [1997]). Nor was it an abuse of discretion for the court to permit intoevidence photographs of prepubescent males, which depicted children in the nude or in a state ofsexual arousal, that were seized from respondent's computer. Such photographs werecorroborative of the testimony of one of petitioner's trial witnesses and relevant to the core issueto be decided—whether respondent suffers from a mental abnormality—in that theytended to establish that respondent continued to experience sexual arousal from fantasies aboutprepubescent children (cf. People v Wood, 79 NY2d 958, 960 [1992]; Matter ofEshale O., 260 AD2d 964 [1999]). Contrary to his assertion that any evidence of unchargedcrimes is inappropriate in this proceeding, Mental Hygiene Law article 10 does not limit theproof to acts that resulted in criminal convictions when considering the issue of mentalabnormality (see Matter of State of New York v Shawn X., 69 AD3d at 171). Sincerelevance was demonstrated and the photographs were not admitted for the sole purpose ofarousing the emotions of the jury, we find that Supreme Court acted within its sound discretionin permitting them into evidence.[*4]
Nor are we persuaded that the comments made bypetitioner's counsel during summation deprived respondent of a fair trial. Counsel's reference, ontwo occasions, to respondent as a "sick person" were a fair comment on the properly admittedtestimony of petitioner's experts. We agree that it was improper for petitioner's counsel to makereference to the dispositional phase of the proceeding by commenting on the possibility ofrespondent's release into the community, since the only issue before the jury was whetherrespondent suffers from a mental abnormality (see Mental Hygiene Law § 10.07[a], [f]). However, Supreme Court promptly sustained respondent's objections and immediatelyinstructed the jury to disregard those comments, thereby mitigating any prejudice to respondent(see Hitchcock v Best, 247 AD2d 769, 769 [1998]; see also Clemons vVanderpool, 289 AD2d 1078, 1079 [2001]). The remaining challenged statements made bypetitioner's counsel constituted fair comments on the evidence (see Norton v Nguyen, 49 AD3d927, 930 [2008]).[FN1]
Finally, respondent challenges Supreme Court's disposition as against the weight of theevidence. Specifically, he argues that petitioner failed to establish by clear and convincingevidence that he is a dangerous sex offender requiring confinement, that is, "a person who is. . . suffering from a mental abnormality involving such a strong predisposition tocommit sex offenses, and such an inability to control behavior, that the person is likely to be adanger to others and to commit sex offenses if not confined to a secure treatment facility"(Mental Hygiene Law § 10.03 [e]; see Matter of State of New York v Donald N., 63 AD3d 1391,1393 [2009]). Rather, respondent contends that his behavior can be adequately controlled by theimposition of a regimen of strict and intensive supervision and treatment (hereinafter SIST).
At the dispositional hearing, Katsavdakis opined that respondent is a dangerous sex offenderrequiring confinement. He explained that, upon administering the STATIC-99,[FN2]respondent scored a six, which placed him in the high risk category for sexual reoffense.Katsavdakis also administered the Sexual Violent Risk-20,[FN3]in which he found respondent to be in the moderate to high risk category. To that end,Katsavdakis identified a number of dynamic and static factors indicating that respondentdemonstrated an increased risk for reoffending in the community, including his violation ofprobation/parole on two separate occasions. Notably, [*5]Katsavdakis opined that this is one of the strongest factors used inassessing the level of danger posed to the community in terms of risk of recidivism, and isparticularly significant here given that respondent's parole violation evinced a demonstratedinability to control his sexual fantasies and urges despite significant repercussions. Although healso testified that respondent presented factors that mitigated his risk, such as the absence ofextreme minimization or denial of his offenses, no history of substance abuse or dependency andthe lack of violent offending patterns, Katsavdakis concluded that the totality of respondent's riskfactors, when coupled with his poor judgment and impulse control as a result of his ADHD,demonstrated that respondent presented a heightened risk to reoffend if released to thecommunity.
To the contrary, Bard opined that respondent could reside safely in the community under aregimen of SIST, citing several factors in support of his conclusion that respondent was not adangerous sex offender, including the lack of any violent offenses, the absence of any behavioralproblems while incarcerated, the fact that he did not minimize his conduct, and his cooperationin sex offender treatment. In his opinion, respondent does not have a problem in controlling hissexual impulses and the imposition of a regimen of SIST would be appropriate given thatrespondent did not commit any contact offenses against children during the two-year period thathe was on probation and did not act out on his impulses during the seven months that he was onparole.
Supreme Court was in the best position to evaluate the weight and credibility of theconflicting psychiatric testimony presented (see Matter of State of New York v DonaldN., 63 AD3d at 1394). After independently reviewing the evidence presented at thedispositional hearing and according appropriate deference to the court's decision to credit theopinion of Katsavdakis over that of Bard (see Gill v Maul, 61 AD3d 1159, 1160 [2009]), we find no basis todisturb Supreme Court's determination that respondent was a dangerous sex offender requiringconfinement.
Mercure, J.P., Lahtinen, Kavanagh and Garry, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: Respondent also asserts thatSupreme Court erred in failing to grant the jury's request to define the term "sex offense" ascontained in the definition of mental abnormality. However, respondent not only failed to raisethis objection before Supreme Court, but took a contrary position below, specifically arguingthat the jury should not be read the definition of "sex offense" as that term is defined in MentalHygiene Law § 10.03 (p). As such, the issue has not been preserved for our review(see Hunt v Bankers & Shippers Ins. Co. of N.Y., 50 NY2d 938, 940 [1980]; Brown v Dragoon, 11 AD3d 834,835 [2004], lv denied 4 NY3d 710 [2005]).
Footnote 2: This actuarial assessment usesstatic factors designed to measure an individual's risk of being convicted of a future sex offense.
Footnote 3: This risk assessment toolemploys both static and dynamic factors associated with increased risk for sexual reoffense.