| Matter of State of New York v Barry W. |
| 2014 NY Slip Op 01357 [114 AD3d 1093] |
| February 27, 2014 |
| Appellate Division, Third Department |
| In the Matter of State of New York, Respondent, v BarryW., Appellant. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Allyson B. Levine of counsel), forrespondent.
Egan Jr., J. Appeal from an order of the Supreme Court (Hall, J.), entered November30, 2012 in Washington County, which granted petitioner's application, in a proceedingpursuant to Mental Hygiene Law article 10, to find respondent to be a dangerous sexoffender and confined him to a secure treatment facility.
In February 1990, respondent pleaded guilty to attempted assault in the seconddegree and subsequently was sentenced to a prison term of 1½ to 3 years. Theconviction stemmed from an incident that occurred in October 1989 wherein respondentand another individual handcuffed the 20-year-old male victim to the base of a toilet fornine hours, during which time respondent repeatedly threatened the young man's life,urged his accomplice to stab the victim with a knife and attempted to force the victim toperform oral sex. Thereafter, in May 1992, respondent was convicted of, insofar as isrelevant here, three counts of sexual abuse in the third degree—based upon hisconduct involving a 10-year-old girl and a six-year-old boy—and was sentencedto, among other things, consecutive prison terms of 3½ to 7 years. According to thevictims, respondent touched the young girl's breasts and vagina while respondent's wifewas asleep in the same room and hanged the young boy—by histesticles—from a support beam in the basement of his residence for what wasreported to be approximately 20 minutes. Although respondent completed a sex offendertreatment program while incarcerated, he subsequently denied—during [*2]the course of a parole interview—the conductforming the basis for the 1992 convictions and was asked to again complete a treatmentprogram. Respondent refused.
Thereafter, and in anticipation of respondent's release from prison, petitionercommenced this proceeding pursuant to Mental Hygiene Law article 10 seeking, amongother things, an order finding that there was probable cause to believe that respondentwas a sex offender requiring civil management. Respondent subsequently stipulated thathe was a detained sex offender (see Mental Hygiene Law § 10.03 [g])suffering from a mental abnormality (see Mental Hygiene Law § 10.03 [i])and waived his right to a jury trial on this issue. Following a dispositional hearing,Supreme Court found that petitioner had established—by clear and convincingevidence—that respondent was a dangerous sex offender in need of confinementand committed respondent to a secure treatment facility. This appeal by respondentensued.
We affirm. "To demonstrate that respondent is a dangerous sex offender requiringcivil confinement, petitioner was required to prove 'by clear and convincing evidence that. . . respondent has a mental abnormality involving such a strongpredisposition to commit sex offenses, and such an inability to control [his] behavior,that [he] is likely to be a danger to others and to commit sex offenses if not confined to asecure treatment facility' " (Matter of State of New York v Walter W., 94 AD3d 1177,1178 [2012], lv denied 19 NY3d 810 [2012], quoting Mental Hygiene Law§ 10.07 [f]; see Matter ofState of New York v Jason H., 82 AD3d 778, 779 [2011]; Matter of State of New York vCraig T., 77 AD3d 1062, 1063 [2010]). Based upon our independent review ofthe record, and according due deference to Supreme Court's credibility determinations(see Matter of State of New York v Walter W., 94 AD3d at 1180; Matter of State of New York vKenneth BB., 93 AD3d 900, 902 [2012]), we are satisfied that petitionerdischarged its statutory burden here.
Although respondent's expert, Leonard Bard, testified that respondent did not sufferfrom any diagnosable mental condition, respondent conceded that he was a detained sexoffender suffering from a mental abnormality, and petitioner's expert, TimothyWisniewski, diagnosed respondent as a sexual sadist with an antisocial personalitydisorder and a psychopathic personality. As to the remaining elements, Wisniewskitestified that respondent's "wide victim pool ranging from very small children to adults,"coupled with his admission that "he has . . . fantasies about abusing otherpeople," indicated that respondent possessed "a very strong predisposition to commitsexual offenses." Wisniewski further testified that respondent's denial of the subjectoffenses, together with his pattern of escalation (as evidenced by his progression fromabusing the six-year-old victim for approximately 20 minutes to his abuse of the20-year-old victim for approximately nine hours[FN1]) and the fact that he abused his victims despite the potential consequences or risk ofdetection,[FN2] all evidenced respondent's inability to control his [*3]behavior. Specifically, Wisniewski opined that "by denyingthe fact that he has a sadistic problem or his psychopathy, [respondent] is going to beunable to attend to the triggers and things that occur within the community to let himknow when he is in a lot of danger." Although Wisniewski acknowledged thatrespondent did not have a history of sex-related disciplinary infractions whileincarcerated, Wisniewski nonetheless was of the view that respondent's untreated sexualdeviance and psychopathy constituted a "deadly combination" that placed him at a "veryhigh risk within the community for sexual recidivism." For all of these reasons, andbased upon respondent's scoring on certain actuarial risk assessment instruments,Wisniewski concluded that respondent's release into strict and intensive supervision andtreatment in the community was not a viable option, as "the community [was] acompletely inappropriate place to be dealing with [respondent's] violent sexual urges."
Although Bard disagreed with Wisniewski's diagnosis of sexual sadism, testified thatrespondent no longer showed signs of an antisocial personality disorder, discounted thesignificance of the actuarial instruments utilized by Wisniewski and contended thatrespondent had demonstrated an ability to control his behavior, thereby rendering him "agood candidate" for supervised release, "Supreme Court was in the best position toevaluate the weight and credibility of the conflicting psychiatric testimony presented"(Matter of State of New York v Craig T., 77 AD3d at 1064 [internal quotationmarks and citation omitted]) and was free to credit Wisniewski's testimony over thatoffered by Bard. Accordingly, based upon our review of the record as a whole, wediscern no basis upon which to disturb Supreme Court's finding that respondent is adangerous sex offender in need of confinement (see Matter of State of New York v Donald DD., 107 AD3d1062, 1064-1065 [2013], lv granted 21 NY3d 866 [2013]; Matter of State of New York vLonard ZZ., 100 AD3d 1279, 1280-1281 [2012]; Matter of State of New York vTimothy EE., 97 AD3d 996, 998-999 [2012]; Matter of State of New York vRichard VV., 74 AD3d 1402, 1405 [2010]). Respondent's remainingcontentions, to the extent not specifically addressed, have been examined and found to belacking in merit.
Lahtinen, J.P., Stein and McCarthy, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: Although respondentwas not convicted of the crimes involving the younger children until 1992, theunderlying conduct occurred prior to his abuse of the 20-year-old victim in late 1989.
Footnote 2: Wisniewski noted thatrespondent made no attempt to disguise his identity during the nine-hour incidentinvolving the 20-year-old victim and abused the 10-year-old victim while his wife wassleeping in the same room.