| Matter of State of New York v Clarence D. |
| 2011 NY Slip Op 01664 [82 AD3d 776] |
| March 1, 2011 |
| Appellate Division, Second Department |
| In the Matter of State of New York,Respondent, v Clarence D., Appellant. |
—[*1] Eric T. Schneiderman, Attorney General, New York, N.Y. (Benjamin Gutman and Marion R.Buchbinder of counsel), for respondent.
In a proceeding pursuant to Mental Hygiene Law article 10, Clarence D., an alleged sexoffender requiring civil management, appeals from an order of the Supreme Court, OrangeCounty (De Rosa, J.), dated December 22, 2009, which, upon a finding, made after a nonjurytrial, that he suffers from a mental abnormality as defined in Mental Hygiene Law § 10.03(i), and upon a determination, made after a dispositional hearing, that he currently is a dangeroussex offender requiring civil confinement, in effect, granted the petition and directed that he becommitted to a secure treatment facility for care, treatment, and control until such time as he nolonger requires confinement.
Ordered that the order is affirmed, without costs or disbursements.
This appeal arises from a proceeding pursuant to Mental Hygiene Law article 10, also knownas the Sex Offender Management and Treatment Act (hereinafter SOMTA). The appellant wasconvicted of sexual abuse in the first degree, upon his plea of guilty, based on a rape thatoccurred in March 1996. The appellant was sentenced to seven years of incarceration. At thesame time, he was also sentenced to a 7-to-14-year indeterminate concurrent term ofincarceration for an arson he had committed in 1994.
The appellant completed his sentence on the sexual abuse conviction in March 2003, butremained in prison on the arson conviction. As the date of the appellant's possible release datedrew near, the State Commissioner of Mental Health appointed a case review team to perform anevaluation (see Mental Hygiene Law § 10.05 [a], [d], [e]). Based on the casereview team's report, the Attorney General filed the instant petition for civil management of theappellant pursuant to SOMTA.
The Supreme Court conducted a nonjury trial (see Mental Hygiene Law §10.07 [a], [b]), after which it found that the appellant was a "detained sex offender" underSOMTA and suffers from a "mental abnormality" as that phrase is defined in SOMTA (seeMental Hygiene Law § 10.07 [d]; § 10.03 [g], [i]). Thereafter, the SupremeCourt conducted a dispositional hearing, after which it determined that the appellant was adangerous sex offender requiring civil confinement and ordered such confinement (seeMental Hygiene Law § 10.07 [f]).
In reviewing a determination made after a nonjury trial, the power of the Appellate Divisionis as broad as that of the trial court and it may render the judgment it finds warranted by the facts,taking into account that in a close case the trial judge had the advantage of seeing and hearing thewitnesses (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60NY2d 492, 499 [1983]; 6243 JerichoRealty Corp. v AutoZone, Inc., 71 AD3d 983, 984 [2010]; see also Matter of Jeremiah S. [New YorkState Commr. of Mental Health], 69 AD3d 730, 732 [2010]).
The trial evidence supports the Supreme Court's determination that the appellant suffers froma "mental abnormality." SOMTA defines "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]).
At trial, the State's experts, a psychologist and a psychiatrist, testified that the appellantsuffered from pedophilia and that his continuing sexual attraction to children made it unlikelythat he could control his impulses once he was released into the community. Under thesecircumstances, the Supreme Court's determination that the appellant suffers from a mentalabnormality was warranted by the facts (see Mental Hygiene Law § 10.03 [i]; Matter of State of New York v DerrickB., 68 AD3d 1124, 1126-1127 [2009]).
The Supreme Court properly determined, after the dispositional hearing, that the respondentis a dangerous sex offender requiring confinement (see Mental Hygiene Law §10.07 [f]). At that hearing, the State's experts testified that the appellant's lack of social support,his inability to form relationships with adults, his lack of concern for other people, and hislimited mental capacity made it likely that he would again abuse children if he were allowed tolive in the community. Moreover, even though the appellant had successfully completed two sexoffender treatment programs while incarcerated, statements he made to the State's expert showedthat he had "backtracked significantly" and refused to take full responsibility for his actions.Although the appellant's expert testified at the dispositional hearing that the appellant was not adangerous sex offender requiring confinement, he also acknowledged that the appellant lackedthe cognitive ability to integrate the material he learned in treatment and that he probablycontinued to be sexually attracted to children "given the chronicity of his pedophilia and thelimited amount of treatment he has completed." Under these circumstances, the Supreme Courtproperly determined that the appellant is a dangerous sex offender requiring confinement andproperly directed that he be committed to a secure treatment facility for care, treatment, andcontrol until such time as he no longer requires confinement (see Mental Hygiene Law§ 10.07 [f]; Matter of State of New York v Derrick B., 68 AD3d at 1127).
The appellant's remaining contentions are without merit. Prudenti, P.J., Eng, Belen andSgroi, JJ., concur.