| Matter of State of New York v Jason H. |
| 2011 NY Slip Op 01665 [82 AD3d 778] |
| March 1, 2011 |
| Appellate Division, Second Department |
| In the Matter of State of New York, Respondent, v JasonH., Appellant. |
—[*1] Eric T. Schneiderman, Attorney General, New York, N.Y. (Benjamin N. Gutman and RobertC. Weisz of counsel), for respondent.
In a proceeding pursuant to Mental Hygiene Law article 10 for the civil management of JasonH., an adjudicated sex offender suffering from a mental abnormality requiring civil management,in which the State of New York moved pursuant to Mental Hygiene Law § 10.11 (d) (2)for the civil confinement of Jason H., Jason H. appeals from an order of the Supreme Court,Dutchess County (Pagones, J.), dated October 30, 2009, which, upon a decision of the same courtdated October 19, 2009, made after a hearing, and upon a finding that he violated the mandatoryconditions of his "strict and intensive supervision and treatment" regimen, found him to be adangerous sex offender requiring civil confinement, granted the motion, and directed that he becommitted to a secure facility for care and treatment.
Ordered that the order is affirmed, without costs or disbursements.
In December 2003 Jason H. (hereinafter the appellant) was convicted of rape in the thirddegree. Shortly before his release from prison, the State of New York filed a petition pursuant toMental Hygiene Law article 10 for the civil management of the appellant (see MentalHygiene Law § 10.06 [a]). On February 3, 2009, the appellant appeared before theSupreme Court with counsel, waived his right to a jury trial, and admitted to being a sex offenderwho suffers from a mental abnormality requiring civil management (see Mental HygieneLaw § 10.03 [q]). Upon the appellant's admissions, the Supreme Court found the appellantto be a sex offender suffering from a mental abnormality requiring civil management, imposed aregimen of mandatory conditions of "strict and intensive supervision and treatment" (hereinafterSIST) (Mental Hygiene Law § 10.11), and placed him under the supervision of the NewYork State Division of Parole. Among the conditions of his SIST regimen, the appellant agreedthat he would not "use or possess any drug paraphernalia or use or possess any controlledsubstance without proper medical authorization." On March 12, 2009, 16 days after his releaseinto the community, the appellant conceded to his substance abuse counselor that he had smokedcrack cocaine the previous evening. The appellant also tested positive for the presence ofcocaine. The State then moved for the civil confinement of the appellant pursuant to MentalHygiene Law § 10.11 (d) (2), alleging that the appellant had violated the [*2]conditions of his SIST regimen, and seeking an order finding theappellant to be a dangerous sex offender requiring confinement. After a hearing, the SupremeCourt found the appellant to be a dangerous sex offender requiring confinement, and committedhim to a secure facility for care and treatment. We affirm.
A "[d]angerous sex offender requiring confinement" is defined under Mental Hygiene Lawarticle 10 as "a person who is a detained sex offender suffering from a mental abnormalityinvolving such a strong predisposition to commit sex offenses, and such an inability to controlbehavior, that the person is likely to be a danger to others and to commit sex offenses if notconfined to a secure treatment facility" (Mental Hygiene Law § 10.03 [e]). The SupremeCourt properly concluded that the State established, by clear and convincing evidence(see Mental Hygiene Law § 10.11 [d] [4]), that the appellant is a dangerous sexoffender requiring confinement (see Mental Hygiene Law § 10.07 [f]; Matter of State of New York v DonaldN., 63 AD3d 1391 [2009]; seealso Matter of State of New York v Craig T., 77 AD3d 1062 [2010]; Matter of State of New York v Flagg,77 AD3d 1400 [2010]).
Contrary to the appellant's contention, under the circumstances of this case, his admission onFebruary 3, 2009, in connection with the prior civil management petition, that he suffered from a"mental abnormality" (Mental Hygiene Law § 10.03 [i]) was sufficient to establish that hesuffered from a mental abnormality on this motion for civil confinement, which was filed on orabout March 16, 2009 (cf. Jones v United States, 463 US 354 [1983]). In any event, theState presented ample evidence at the hearings, held on October 5 and 6, 2009, to establish, byclear and convincing evidence, that the appellant suffered from a mental abnormality within themeaning of Mental Hygiene Law article 10. Psychologist Joel Lord's opinion, given in histestimony at the hearing, that the defendant indeed suffered from a mental abnormality and was adangerous sex offender requiring civil confinement was based on, among other things, apsychological evaluation prepared in 2007. Following his SIST violation in March 2009, theappellant refused to submit to a new psychiatric evaluation pursuant to these proceedings. Havingrefused to submit to a new psychological evaluation, the appellant may not now rely on theabsence of a more current psychiatric evaluation to support his contention that the petitionerfailed to prove that he suffered from a "mental abnormality" (Mental Hygiene Law § 10.03[i]; cf. People v Melluzzo, 167 AD2d 323, 324 [1990] [it was the defendant's ownobstructive behavior in refusing to appear for the scheduled psychiatric evaluation whichdeprived the sentencing court of the presentence psychiatric report]).
Moreover, the Supreme Court credited the testimony of Dr. Lord, who expressed his opinionthat the appellant's drug abuse was connected to his sex-offending behavior and was a significantcomponent of the appellant's "sex offense cycle." "The trier of fact is in the best position toevaluate the weight and credibility of conflicting expert medical and psychiatric testimony"(Matter of State of New York v Donald N., 63 AD3d at 1394; see Matter of GeorgeL., 85 NY2d 295, 305 [1995]). Under the circumstances presented here, we defer to theSupreme Court's determination in this regard. "Thus, although [the appellant's] SIST violationswere not sexual in nature, they remain highly relevant regarding the level of danger that [he]poses to the community with respect to his risk of recidivism" (Matter of State of New Yorkv Donald N., 63 AD3d at 1394; see Matter of State of New York v Flagg, 77 AD3dat 1402).
The appellant's remaining contention is without merit. Covello, J.P., Angiolillo, Dickersonand Belen, JJ., concur.