| Matter of State of New York v Lonard ZZ. |
| 2012 NY Slip Op 08188 [100 AD3d 1279] |
| November 29, 2012 |
| Appellate Division, Third Department |
| In the Matter of State of New York, Respondent, v Lonard ZZ.,Appellant. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Arnold of counsel), forrespondent.
Lahtinen, J. Appeal from an order of the Supreme Court (Tait, J.), entered March 23, 2011 inTioga County, which granted petitioner's application, in a proceeding pursuant to MentalHygiene Law article 10, to find respondent to be a dangerous sex offender and confined him to asecure treatment facility.
Petitioner commenced this proceeding pursuant to Mental Hygiene Law article 10 seeking tohave respondent detained as a dangerous sex offender requiring civil management following hisincarceration for two counts of rape in the first degree. After a jury trial, respondent was found tosuffer from a mental abnormality as that term is defined in the Mental Hygiene Law (seeMental Hygiene Law § 10.03 [i]). Supreme Court then conducted a dispositional hearing,after which it concluded that petitioner had established by clear and convincing evidence thatrespondent was a dangerous sex offender in need of confinement and committed him to a securetreatment facility (see Mental Hygiene Law § 10.03 [e]; Matter of State of New York v RichardVV., 74 AD3d 1402, 1405 [2010]). Respondent now appeals.
Respondent raises two arguments on appeal. His first argument, that Supreme Court erred inallowing petitioner's expert witness to testify about handwritten hearsay statements at the [*2]jury trial,[FN*]is unpreserved for our review since no objection to that testimony was made (see Matter of State of New York vWilkes, 77 AD3d 1451, 1452 [2010]). Respondent also contends that the weight of theevidence does not support Supreme Court's determination at the dispositional hearing thatrespondent is a dangerous sex offender requiring confinement to a secure treatment facility,rather than strict and intensive supervision and treatment.
At the dispositional hearing, petitioner's expert based his opinion that respondent neededconfinement upon his interviews with respondent and his mother, respondent's mental healthrecords and the expert's use of actuarial risk assessment instruments. The risk assessment scoreplaced respondent in a category of moderate to high risk to reoffend. The expert's interview withrespondent's mother (who was respondent's primary support system outside of confinement) ledto the expert's testimony that she would be a poor source of support for respondent, she wasunlikely to aid him in his efforts to avoid reoffending because she did not believe he had everengaged in sexual misconduct, and she did not understand that he should be prevented frominteracting with children. The expert also identified additional risk factors, such as a significanthistory of substance abuse, lifestyle instability and poor emotional regulation, which heconcluded would make it difficult for respondent to refrain from deviant sexual conduct if notconfined.
Respondent's expert challenged the usefulness of the actuarial instruments relied upon bypetitioner's expert and opined that strict and intensive supervision and treatment would be anappropriate disposition for respondent given the existence of mitigating factors, such asrespondent's age and ability to conform to the strictly regimented environment of prison. Afterreviewing the conflicting expert testimony and all the evidence independently and accordingdeference to Supreme Court's credibility assessments (see Matter of State of New York v Timothy EE., 97 AD3d 996, 998[2012]; Matter of State of New York v Richard VV., 74 AD3d at 1405), we find no basisupon which to disturb the disposition.
Peters, P.J., Kavanagh, Stein and Egan Jr., JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: Respondent also contends thatSupreme Court erred in allowing this testimony at the probable cause hearing (see MentalHygiene Law § 10.06). However, no appeal lies from an order determining that probablecause has been established (see Mental Hygiene Law § 10.13 [b]; Matter of State of New York v Stein,85 AD3d 1646, 1648 [2011], affd sub nom. Matter of State of New York v ShannonS., 20 NY3d 99 [2012]).