| Matter of State of New York v Derrick B. |
| 2009 NY Slip Op 09668 [68 AD3d 1124] |
| December 22, 2009 |
| Appellate Division, Second Department |
| In the Matter of State of New York, Respondent, v DerrickB., Appellant. |
—[*1] Andrew M. Cuomo, Attorney General, New York, N.Y. (Benjamin N. Gutman and DianaR.H. Winters of counsel), for respondent.
In a proceeding pursuant to Mental Hygiene Law article 10 for the civil management ofDerrick B., an alleged sex offender requiring civil management, Derrick B. appeals from anorder of the Supreme Court, Kings County (Mullen, J.), dated September 4, 2008, which, upon afinding made after a jury trial that he suffers from a mental abnormality as defined in MentalHygiene Law § 10.03 (i), and a determination made after a dispositional hearing that hecurrently is a dangerous sex offender requiring civil confinement, granted the petition anddirected that he be committed to a secure treatment facility for care and treatment.
Ordered that the order is affirmed, without costs or disbursements.
The instant appeal arises from a proceeding under article 10 of the Mental Hygiene Law,also known as the Sex Offender Management and Treatment Act (hereinafter SOMTA). In 1994the appellant was convicted, upon a plea of guilty, of sexual abuse in the first degree, based onan incident of alleged rape that occurred on May 14, 1993 and the appellant was sentenced to anindeterminate term of incarceration of 2½ to 5 years. After the appellant served thatsentence, he left the state, but was extradited back to New York in early 2003 and was arrestedand charged in connection with a separate alleged rape that had occurred on February 5, 1993. In2003 the appellant again was convicted, upon a plea of guilty, of the crime of sexual abuse in thefirst degree, based on the incident that occurred on February 5, 1993. The appellant wassentenced to an indeterminate term of 3 to 6 years of incarceration in connection with thatincident.
In December 2007, as the appellant's release date approached, the Commissioner of the NewYork State Office of Mental Health appointed a case review team to conduct an evaluation(see Mental Hygiene Law § 10.05 [a], [d], [e]). Based on the report of the casereview team, the Attorney General filed the instant petition for civil management of the appellantpursuant to SOMTA. The Supreme Court then conducted a probable cause hearing, as requiredby Mental Hygiene Law § 10.06 (g). The Supreme Court found that there was probablecause to believe that civil management was required. The [*2]appellant was represented by counsel at the probable cause hearingand at all subsequent proceedings.
As required by Mental Hygiene Law § 10.07, the Supreme Court conducted a jury trialas to the issue of whether the appellant suffered from a "mental abnormality" (Mental HygieneLaw § 10.07 [a]). The statute defines a "mental abnormality" as "a congenital or acquiredcondition, disease or disorder that affects the emotional, cognitive, or volitional capacity of aperson in a manner that predisposes him or her to the commission of conduct constituting a sexoffense and that results in that person having serious difficulty in controlling such conduct"(Mental Hygiene Law § 10.03 [i]). The jury unanimously found that the appellant, adetained sex offender, was a person who suffered from a mental abnormality. The SupremeCourt then conducted a dispositional hearing, at which additional evidence was offered(see Mental Hygiene Law § 10.07 [f]). At the conclusion of the dispositionalhearing, the Supreme Court found that the appellant was a "dangerous sex offender requiringcivil confinement," and ordered such confinement.
The appellant contends that the State failed to establish by legally sufficient proof that hesuffered from a mental abnormality. He also argues that the jury's finding that he suffered from amental abnormality was not based on a fair interpretation of the evidence.
A court may set aside a jury verdict as legally sufficient and enter judgment as a matter oflaw only where "there is simply no valid line of reasoning and permissible inferences whichcould possibly lead rational men to the conclusion reached by the jury on the basis of theevidence presented at trial" (Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]). Averdict that is supported by legally sufficient evidence may nonetheless be set aside as contraryto the weight of the evidence, and a new trial may be ordered, if the evidence so preponderates infavor of the movant that the verdict could not have been reached on any fair interpretation of theevidence (see Grassi v Ulrich, 87 NY2d 954, 956 [1996]; Nicastro v Park, 113AD2d 129, 132-133 [1985]; see also Matter of Luis A., 13 AD3d 441, 442 [2004];Matter of Seltzer v Hogue, 187 AD2d 230, 237 [1993]).
Here, the jury's finding was based on a fair interpretation of the evidence, in light of, interalia, the fact that both the State's expert and the expert psychiatrist designated by the appellantdiagnosed him with "Cognitive Disorder N[ot] O[therwise] S[pecified]." Both experts indicatedthat the diagnosis was provisional, in light of the fact that the appellant reported a childhoodhead injury that could not be verified. Nonetheless, both experts testified that the appellantdemonstrated various symptoms that are consistent with a cognitive disorder caused by atraumatic brain injury. The State's expert also testified, among other things, that the appellantdemonstrated an "inability to control his behavior," "executive functioning" problems, and"hypersexual" behavior, and that those symptoms were related to his cognitive disorder. Shefurther testified that, as a result of that disorder and the resulting symptoms, the appellant waspredisposed to committing sex offenses, and had serious difficulty controlling that behavior.Under these circumstances, the jury's verdict that the appellant suffered from a mentalabnormality was supported by a fair interpretation of the evidence (see Mental HygieneLaw § 10.03 [i]; § 10.07 [a]; see also Matter of State of New York v DonaldN., 63 AD3d 1391, 1394-1395 [2009]; see generally Matter of John N., 52 AD3d834, 835-836 [2008]).
Additionally, the evidence upon which the jury made its determination was also legallysufficient to support the verdict since there was a valid line of reasoning by which the jury couldconclude that the appellant suffered from a mental abnormality based on the evidence presentedat trial (see Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]).
The appellant further contends that the Supreme Court erred in finding, at the dispositionalhearing, that he currently is a "dangerous sex offender requiring [civil] confinement"(see Mental Hygiene Law § 10.07 [f]). However, at the dispositional hearing,evidence was presented with respect to, inter alia, the appellant's history of sex offenses andrepeated parole violations. The State also presented credible evidence that the appellant hadfailed to benefit from sex offender treatment. In particular, the appellant had not formulated anadequate relapse prevention plan, and continued to experience "executive functioning" andimpulse control problems related to his mental condition. It was undisputed that the appellanthad not previously received specialized treatment for sex offenders with cognitive disorders.[*3]Moreover, the appellant acknowledged, in connection with a2007 sex offender treatment program, that he suffered from unusual sexual urges. Under thesecircumstances, the Supreme Court did not err in finding the appellant to be a dangerous sexoffender requiring civil confinement, and in ordering secure confinement for the purposes oftreatment and to protect the community (see Mental Hygiene Law § 10.07 [f];Matter of State of New York v Donald N., 63 AD3d at 1394-1395). Mastro, J.P., Florio,Balkin and Leventhal, JJ., concur.