| Matter of State of New York v Steven L. |
| 2009 NY Slip Op 07423 [66 AD3d 788] |
| October 13, 2009 |
| Appellate Division, Second Department |
| In the Matter of State of New York, Respondent, v StevenL., Appellant. |
—[*1] Andrew M. Cuomo, Attorney General, New York, N.Y. (Benjamin N. Gutman, Cecelia C.Chang, and Laura Johnson of counsel), for respondent.
In a proceeding pursuant to Mental Hygiene Law article 10 for the civil management ofSteven L., an alleged sex offender requiring civil management, Steven L. appeals from an orderof commitment of the Supreme Court, Westchester County (Bellantoni, J.), entered June 23,2008, which, upon, inter alia, a finding made after a jury trial that he suffers from a mentalabnormality as defined in Mental Hygiene Law § 10.03 (i), and a finding made after adispositional hearing that he currently is a dangerous sex offender requiring confinement,granted the petition and directed that he be committed to a secure treatment facility for care andtreatment.
Ordered that the order of commitment is affirmed, without costs or disbursements.
The State of New York commenced this proceeding pursuant to Mental Hygiene Law article10, also known as the Sex Offender Management and Treatment Act (hereinafter SOMTA), forthe civil management of Steven L. (hereinafter the appellant), an alleged sex offender requiringcivil management. After certain other procedural steps, not at issue on this appeal, the SupremeCourt conducted a jury trial, and a unanimous jury found that the appellant, established to be a"detained sex offender" under SOMTA, suffers from a "mental abnormality" as that phrase isdefined in SOMTA (see Mental Hygiene Law § 10.07 [c], [d]; see alsoMental Hygiene Law § 10.03 [g], [i]).
Thereafter, the Supreme Court conducted a dispositional hearing after which it found that themental abnormality from which the appellant suffers involves such a strong predisposition tocommit sex offenses, and such an inability to control behavior, that he is likely to be a danger toothers and to commit sex offenses if he is not confined to a secure treatment facility (seeMental Hygiene Law § 10.07 [f]). Based on that finding, the Supreme Court made themandatory dispositional finding that the appellant is a dangerous sex offender requiringconfinement, granted the petition, and directed that he be committed to a secure treatmentfacility for care and treatment (id.).
Contrary to the appellant's contention, the Supreme Court providently exercised its [*2]discretion in permitting the appellant's former wife to testify at thetrial regarding sexual offenses he committed against her and her child, since the probative valueof such testimony, which the State's expert permissibly and expressly considered in giving heropinion testimony (see Wagman v Bradshaw, 292 AD2d 84, 87 [2002]), outweighed itsprejudicial impact (see Matter of State of New York v C.B., 23 Misc 3d 1130[A], 2009NY Slip Op 51010[U] [2009]). Moreover, the Supreme Court providently exercised its discretionin denying the appellant's request to depose his former wife, since he failed to demonstrate theneed for such relief (see Matter of Town of Pleasant Val. v New York State Bd. of Real Prop.Servs., 253 AD2d 8, 15 [1999]).
Also contrary to the appellant's contention, the Supreme Court properly permitted apsychologist to testify at the trial regarding a statement made to him by the appellant, since theappellant did not meet his burden of proving (1) the existence of a psychologist-clientrelationship between himself and the psychologist, and (2) that the statement was a confidentialcommunication made by him to the psychologist for the purpose of obtaining the psychologist'sprofessional services (see CPLR 4507; People v Wilkins, 65 NY2d 172, 178-180[1985]; Matter of Priest v Hennessy, 51 NY2d 62, 69 [1980]; Gendal v Billotti, 12 Misc 3d1189[A], 2006 NY Slip Op 51503[U], *3 [2006]).
Contrary to the appellant's contention, the Supreme Court properly found, after thedispositional hearing, by clear and convincing evidence, that the appellant's level ofdangerousness requires that he be confined rather than be subject to strict and intensesupervision (see Mental Hygiene Law § 10.07 [f]; see generally People v Brooks, 19Misc 3d 407, 413-415 [2008]).
In light of the foregoing, we need not reach the appellant's remaining contention. Rivera,J.P., Florio, Miller and Austin, JJ., concur.