| Matter of State of New York v Motzer |
| 2010 NY Slip Op 09688 [79 AD3d 1687] |
| December 30, 2010 |
| Appellate Division, Fourth Department |
| In the Matter of State of New York, Respondent, v Michael Motzer,an Inmate in the Custody of New York State Department of Correctional Services,Appellant. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Zainab A. Chaudhry of counsel), forpetitioner-respondent.
Appeal from an order of the Supreme Court, Niagara County (Richard C. Kloch, Sr., A.J.),entered October 19, 2009 in a proceeding pursuant to Mental Hygiene Law article 10. The order,inter alia, determined that respondent is a dangerous sex offender requiring confinement.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Respondent appeals from an order determining that he is a dangerous sexoffender requiring confinement pursuant to Mental Hygiene Law § 10.11 (d) andcommitting him to a secure treatment facility. Respondent previously consented to a finding thathe is a sex offender who suffers from a mental abnormality requiring strict and intensivesupervision and treatment (SIST) pursuant to Mental Hygiene Law § 10.11. Less than amonth after his release into the community under the SIST conditions, respondent was arrestedupon his parole officer's report that he had violated certain SIST conditions.
Contrary to respondent's contention, petitioner established by clear and convincing evidenceat the hearing that respondent is a dangerous sex offender requiring confinement (seeMental Hygiene Law § 10.07 [f]; § 10.11 [d] [4]). Petitioner presented the testimonyof respondent's parole officer, as well as an expert psychologist who evaluated respondent.Contrary to respondent's contention, Supreme Court was not limited to considering only the factsof the SIST violations; rather, the court could rely on all the relevant facts and circumstancestending to establish that respondent was a dangerous sex offender requiring confinement (see generally Matter of State of New Yorkv Timothy JJ., 70 AD3d 1138, 1142-1143 [2010]). Further, although respondentpresented the testimony of his own expert psychologist whose opinion differed from that ofpetitioner's expert, the court was in the best position to evaluate the weight and credibility of thatconflicting testimony (see Matter ofState of New York v Donald N., 63 AD3d 1391, 1394 [2009]).[*2]
Respondent contends that the court erred in allowingpetitioner's expert psychologist to offer an opinion because that opinion was based in part oninterviews with collateral sources who did not testify at trial, i.e., respondent's treatmentproviders at the psychiatric hospital. We reject that contention. The professional reliabilityexception to the hearsay rule "enables an expert witness to provide opinion evidence based onotherwise inadmissible hearsay, provided it is demonstrated to be the type of material commonlyrelied on in the profession" (Hinlicky vDreyfuss, 6 NY3d 636, 648 [2006]; see Hambsch v New York City Tr. Auth.,63 NY2d 723, 725-726 [1984]; Matterof Murphy v Woods, 63 AD3d 1526 [2009]). Here, the expert testified that thestatements of a respondent's treatment providers are commonly relied upon by the professionwhen conducting a psychological examination to determine whether a respondent is a dangeroussex offender requiring confinement (seegenerally People v Goldstein, 6 NY3d 119, 124-125 [2005], cert denied 547 US1159 [2006]).
We reject respondent's further contention that the court erred in allowing petitioner's expertpsychologist to give hearsay testimony regarding her conversations with respondent's treatmentproviders. " '[H]earsay testimony given by [an] expert[ ] is admissible for the limited purpose ofinforming the jury of the basis of the expert['s] opinion[ ] and not for the truth of the mattersrelated' " (Matter of State of New York v Wilkes [appeal No. 2], 77 AD3d 1451, 1453[2010]). The expert gave limited hearsay testimony on direct examination with respect to aconversation she had with one of respondent's treatment providers, and she testified that sherelied on the hearsay information to form her opinion on the case. We thus conclude that thelimited amount of hearsay information was "properly admitted after the court determined that itspurpose was to explain the basis for the expert['s] opinion[ ], not to establish the truth of thehearsay material, and that any prejudice to respondent from that testimony was outweighed by itsprobative value in assisting the [court] in understanding the basis for [the] expert's opinion"(id. at 1453). Present—Smith, J.P., Centra, Fahey, Peradotto and Pine, JJ.