| Matter of William S. |
| 2010 NY Slip Op 05646 [74 AD3d 1684] |
| June 24, 2010 |
| Appellate Division, Third Department |
| In the Matter of William S. Helene DeSanto, as Director ofSunmount Developmental Disabilities Services Office, Respondent; William S.,Appellant. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Julie S. Mereson of counsel), forrespondent.
Cardona, P.J. Appeal from an order and judgment of the Supreme Court (Demarest, J.),entered April 6, 2009 in Franklin County, which, upon rehearing, adhered to a prior ordergranting petitioner's application, in a proceeding pursuant to Mental Hygiene Law article 15, forthe involuntary retention of respondent.
Respondent pleaded guilty to sexual misconduct and, following a violation of the terms ofhis probation, was transferred to Sunmount Developmental Disabilities Services Office where hehas remained a voluntary resident since 1999. When respondent expressed his desire to leaveSunmount in June 2008, petitioner applied for and, following a hearing before Supreme Court,was granted an order authorizing the involuntary retention of respondent for a period not toexceed 60 days. Thereafter, respondent requested a rehearing pursuant to Mental Hygiene Law§ 15.35, which resulted in a jury finding that respondent was mentally retarded and inneed of inpatient care and treatment. Supreme Court confirmed the original involuntaryconfinement order and this appeal ensued.[*2]
Initially, we note that the original order authorizingrespondent's involuntary retention expired by its terms on September 20, 2008 thereby renderingthis appeal moot (see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714 [1980]).However, under the circumstances herein, because the limited issue of whether respondentevinced subaverage intellectual functioning occurring during the developmental period—anecessary component of a jury's finding of mental retardation[FN1]—is a significant issue which is likely to recur and evade review,[FN2]the exception to the mootness doctrine applies (see Matter of Hearst Corp. v Clyne, 50NY2d 707, 714-715 [1980]; cf. Matter of David C., 69 NY2d 796, 798 [1987]).
Addressing that issue, we are unpersuaded by respondent's contention that petitioner did notmeet its burden in that regard. In support thereof, petitioner presented the unrefuted testimony ofMadelon Flickstein, a psychologist at Sunmount. She testified that the relevant developmentalperiod with regard to mental retardation is prior to attaining age 22—which in this casewould be before September 1998. Flickstein interviewed respondent personally and reviewed hisrecords from as early as age five, which included, among other things, respondent's multiple IQtests and reports from other psychologists. She testified that respondent consistently scoredwithin the mildly mentally retarded range on IQ tests during, among other times, thedevelopmental period. Although evidence in the record, including the results of some of the IQtests that fell within borderline intellectual functioning range for mental retardation, couldsupport a contrary conclusion, the jury's assessment of the evidence presented is entitled todeference if supported by sufficient evidence (see Matter of Daniel XX., 53 AD3d 819, 820 [2008]). Upon ourreview of the record herein, we find no reason to disturb that part of the jury's finding thatrespondent evinced subaverage intellectual functioning within the developmental period.
Inasmuch as the remainder of respondent's challenges do not fall within the exception to themootness doctrine, they will not be reviewed (see Matter of David C., 69 NY2d at 798;Matter of Stephen G., 19 AD3d821, 822 [2005]).
Mercure, Lahtinen, Malone Jr. and Egan Jr., JJ., concur. Ordered that the order and judgmentis affirmed, without costs.
Footnote 1: Mental Hygiene Law §1.03 (21) defines mental retardation as "subaverage intellectual functioning which originatesduring the developmental period and is associated with impairment in adaptive behavior."
Footnote 2: The hearing with regard to thepending application for continued placement apparently has been adjourned to a date yet to bedetermined.