| Matter of State of New York v High |
| 2011 NY Slip Op 02561 [83 AD3d 1403] |
| April 1, 2011 |
| Appellate Division, Fourth Department |
| In the Matter of State of New York, Respondent, v James High,Appellant. |
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Appeal from an order of the Supreme Court, Monroe County (Thomas M. Van Strydonck,J.), entered April 2, 2009 in a proceeding pursuant to Mental Hygiene Law article 10. The ordercommitted respondent to a secure treatment facility.
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 article 10 and committing himto a secure treatment facility. We conclude that petitioner met its burden of establishing by clearand convincing evidence that respondent suffers from a mental abnormality (see Matter of State of New York vFarnsworth, 75 AD3d 14, 29-30 [2010], appeal dismissed 15 NY3d 848 [2010];see generally Mental Hygiene Law § 10.03 [i]). We further conclude that the jury'sdetermination with respect to the issue of mental abnormality is entitled to great deferencebecause the jury had the best opportunity to evaluate the weight and credibility of conflictingexpert testimony (see Matter of State ofNew York v Donald N., 63 AD3d 1391, 1394 [2009]). Petitioner also established byclear and convincing evidence that respondent has such an inability to control his behavior thathe "is likely to be a danger to others and to commit sex offenses if not confined" (MentalHygiene Law § 10.07 [f]). Thus, it cannot be said that Supreme Court erred in determiningthat respondent required confinement and should be committed to a secure treatment facility(see id.). Respondent's contention that the court erred in permitting testimony during thedisposition hearing with respect to the use of the STATIC-99 tool is not preserved for our review(see generally CPLR 4017, 5501 [a] [3]) and, in any event, his challenge to that testimonygoes to the weight thereof rather than its admissibility (see Matter of State of New York v Fox, 79 AD3d 1782, 1784[2010]; see also Matter of State of NewYork v Timothy JJ., 70 AD3d 1138, 1140-1142 [2010]). Present—Smith, J.P.,Peradotto, Lindley, Sconiers and Martoche, JJ.