| Matter of State of New York v Richard VV. |
| 2010 NY Slip Op 04673 [74 AD3d 1402] |
| June 3, 2010 |
| Appellate Division, Third Department |
| In the Matter of State of New York, Respondent, v Richard VV.,Appellant. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Kathleen M. Treasure of counsel), forrespondent.
Malone Jr., J. Appeal from an order of the Supreme Court (Devine, J.), entered March 13,2009 in Albany County, which, in a proceeding pursuant to Mental Hygiene Law article 10,found respondent to be a dangerous sex offender and confined him to a secure treatment facility.
In 1997, in full satisfaction of an indictment charging respondent with sodomy in the firstdegree, three counts of burglary in the second degree, criminal trespass in the third degree andpublic lewdness, respondent pleaded guilty to attempted sodomy in the first degree and wassentenced to a prison term of 5 to 10 years. Upon the expiration of respondent's prison term in2006, he was involuntarily committed to the custody of the Office of Mental Health pursuant tothe procedures of Mental Hygiene Law article 9.
In January 2008, petitioner commenced the instant proceeding pursuant to Mental HygieneLaw article 10, alleging that respondent was a detained sex offender requiring civil management.Following a trial, a jury found that respondent suffers from a mental abnormality (seeMental Hygiene Law § 10.03 [i]). After a dispositional hearing, Supreme Courtdetermined that respondent was a dangerous sex offender in need of confinement (seeMental Hygiene Law § 10.07 [f]) and ordered him committed to a secure treatmentfacility. Respondent appeals.[*2]
Respondent first contends that the jury's finding that hesuffers from a mental abnormality is against the weight of the evidence. The jury's verdict,however, "is entitled to great deference given the jury's opportunity to evaluate the weight andcredibility of conflicting expert testimony" (Matter of State of New York v Shawn X., 69 AD3d 165, 168[2009], lv denied 14 NY3d 702 [2010]; accord Matter of State of New York v Timothy JJ., 70 AD3d 1138,1140 [2010]). When sufficient evidence exists, "a jury verdict may be set aside as against theweight of the evidence only when the evidence preponderates so greatly in [respondent's] favorthat the jury could not have reached its conclusion on any fair interpretation of the evidence"(Matter of State of New York v Shawn X., 69 AD3d at 169 [internal quotation marks andcitations omitted]).
At trial, petitioner presented the testimony of Richard Hamill, a licensed clinicalpsychologist with extensive experience in evaluating and treating sex offenders, who based hisopinion on a personal evaluation of respondent and a review of all of respondent's institutionaland criminal records. According to Hamill, respondent's history of exposing himself tounsuspecting strangers satisfied the diagnostic criteria for exhibitionism as contained in theAmerican Psychiatric Association's Diagnostic and Statistic Manual of Mental Disorders(hereinafter DSM-IV). Hamill further opined that the fact that respondent acknowledged that hehad a problem, and yet continued to expose himself, evidenced respondent's inability to controlhis behavior. In Hamill's opinion, respondent also meets the diagnostic criteria for personalitydisorders in general—and most of the criteria for antisocial personalitydisorder—which further supported a finding that respondent was unable to control hisbehavior.[FN*]Hamill stated that exhibitionism, by definition, is a recurrent and long-lasting condition, has avery high rate of reoffense and predisposes respondent to committing sex offenses. He furtherexplained that, while most exhibitionists do not attempt sexual contact after exposingthemselves, respondent escalated his behavior and became more sexually aggressive with eachvictim, which indicated that respondent fell within a small subset of exhibitionists whoeventually commit more serious sex offenses such as rape.
Respondent's expert, Joseph Plaud, also a licensed clinical psychologist with extensiveexperience in evaluating and treating sex offenders, opined that, while respondent had engagedin some exhibitionistic behavior, he did not sufficiently satisfy all of the DSM-IV criteriapertaining to the age of onset, frequency of incidents or sexual motivation necessary for adiagnosis of exhibitionism. Ultimately, Plaud concluded that, even if respondent were consideredto be an exhibitionist, he did not think that type of diagnosis was sufficient to support a findingthat respondent suffered from a mental abnormality.[*3]
While respondent argues that Plaud's opinion shouldhave been accorded more weight than that of Hamill because Plaud had more experiencetestifying in civil commitment proceedings, "[t]he trier of fact is in the best position to evaluatethe weight and credibility of conflicting expert medical and psychiatric testimony" (Matter of State of New York v DonaldN., 63 AD3d 1391, 1394 [2009]; see Matter of State of New York v TimothyJJ., 70 AD3d at 1142). Here, considering the conflicting expert opinions and according theappropriate deference to the jury's credibility determinations, we cannot conclude that the verdictis against the weight of the evidence.
Respondent also challenges Supreme Court's disposition as against the weight of theevidence. Specifically, respondent contends that petitioner did not prove by clear and convincingevidence that he is a "[d]angerous sex offender requiring confinement" (Mental Hygiene Law§ 10.03 [e]). In that regard, at the dispositional hearing, Hamill testified that, based uponthe results of actuarial assessments, respondent has a high risk of reoffending if he were to bereleased into the community. This assessment was based, in large part, on the escalation ofrespondent's conduct from simply exposing his genitals to women to committing offensesinvolving sexual contact with his victims. According to Hamill, respondent's failure tosuccessfully complete sex offender treatment, and his history of noncompliant and abusivebehavior while confined—behavior of both an impulsive and a premeditatednature—demonstrated that respondent could not control himself even in the moststructured environments. Hamill also opined that both respondent's history of alcohol and drugabuse, which lowered his inhibitions, and his personality disorder, which made him prone toengage in inappropriate and illegal behavior, would make it difficult for respondent to control hisimpulses and, thus, increased the risk that respondent would reoffend. On this basis, Hamillopined that respondent could not be safely managed in the community under a program of strictand intensive supervision as he was unlikely to comply with the program directives. Noting thatrespondent had committed the instant offense—wherein he broke into a woman'sapartment and sexually assaulted her while she slept—within two days of his release fromjail, Hamill believed that the level of stress that respondent would likely experience in thecommunity would make him "a significant danger to the community." However, Plaud opinedthat, although exhibitionism typically had a high recidivism rate, as a non-contact-basedoffender, respondent's likelihood of committing a contact-based offense—such asrape—within five years of his release was 24.8%. According to Plaud, the fact thatrespondent was nearly 40 years old also made it less likely that he would reoffend. Plaudultimately concluded that respondent could be effectively treated in the community under a strictand intensive supervision regimen. Upon our full review of the evidence, and accordingdeference to Supreme Court's decision to credit the expert opinion of Hamill over that of Plaud(see Matter of State of New York v Donald N., 63 AD3d at 1394), we find no basis uponwhich to disturb the court's determination that respondent is a dangerous sex offender requiringconfinement.
Cardona, P.J., Spain, McCarthy and Egan Jr., JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: Hamill explained that, using avery conservative interpretation of the criteria for antisocial personality disorder, he did notapply that diagnosis to respondent as it was not possible for him to definitively ascertain whetherrespondent engaged in rule-breaking behavior prior to the age of 15 because respondent had beendeceptive regarding his childhood. Hamill did note, however, that other mental healthprofessionals have diagnosed antisocial personality disorder in respondent, the hallmarkcharacteristics of which, according to Hamill, are a history of rule-breaking, the violation ofother's rights and harmful behavior toward others.