| Matter of State of New York v Leon F. |
| 2011 NY Slip Op 04260 [84 AD3d 1098] |
| May 17, 2011 |
| Appellate Division, Second Department |
| In the Matter of State of New York, Respondent, v Leon F.,Appellant. |
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In a proceeding pursuant to Mental Hygiene Law article 10 for the civil management of LeonF., a sex offender allegedly requiring civil management, Leon F. appeals from an order of theSupreme Court, Kings County (Tomei, J.), dated December 16, 2009, which, upon a finding,made after a nonjury trial, that he suffers from a mental abnormality as defined in MentalHygiene Law § 10.03 (i), and a determination, after a dispositional hearing, that hecurrently is a dangerous sex offender requiring civil confinement, granted the petition anddirected that he be committed to a secure treatment facility for care and treatment.
Ordered that the order is affirmed, without costs or disbursements.
This appeal arises from a proceeding under article 10 of the Mental Hygiene Law, alsoknown as the Sex Offender Management and Treatment Act (hereinafter SOMTA). In 1992, theappellant was convicted of sexual abuse in the first degree, upon his plea of guilty, in fullsatisfaction of charges which included rape, sexual abuse, assault, and robbery. He was paroledin October 1994, and subsequently violated parole. In December of 2001, while on parole inconnection with a conviction for the criminal sale of a controlled substance, the appellant wasconvicted of attempted rape in the first degree upon his plea of guilty, based on an incident inwhich he forced himself upon the 68-year-old mother of his then-girlfriend. He was sentenced to8 years of incarceration. While incarcerated, he was further convicted, in April 2003, ofattempted rape in the first degree upon his plea of guilty, based on a rape that he had committedin July 1996.
In June 2008, as the appellant's release date approached, the Commissioner of the New YorkState Office of Mental Health appointed a case review team to conduct an evaluation (seeMental Hygiene Law § 10.05 [a], [d], [e]). Based on the case review team's report, theAttorney General filed the instant petition for civil management of the appellant pursuant toSOMTA.
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 that he suffers from a "mental abnormality" as that term is defined in SOMTA(see Mental Hygiene Law § 10.07 [d]; § 10.03 [g], [i]). The Supreme Courtthen conducted a dispositional hearing, after which it determined that [*2]the appellant was a dangerous sexual offender requiring civilconfinement and ordered such confinement (see Mental Hygiene Law § 10.07 [f]).
The appellant contends that the Supreme Court should have recused itself after learning ofcertain threats that he had allegedly made against the court, court personnel, and an assistantattorney general during the trial phase of this proceeding. This claim, however, is unpreserved forappellate review, as the appellant failed to make a motion or otherwise request that the SupremeCourt recuse itself (see People vStephenson, 45 AD3d 968, 969 [2007]; Matter of Caraballo v Colon, 9 AD3d 459, 459 [2004]; Matterof Karina U., 299 AD2d 772, 773 [2002]; Matter of Nunnery v Nunnery, 275 AD2d986, 987 [2000]). In any event, the claim is without merit. Absent a legal disqualification underJudiciary Law § 14, a trial judge is the sole arbiter of the need for recusal, and the decisionis a matter of discretion and personal conscience (see People v Moreno, 70 NY2d 403,405 [1987]; Matter of O'Donnell vGoldenberg, 68 AD3d 1000 [2009]; Matter of Imre v Johnson, 54 AD3d 427, 427-428 [2008]; Schwartzberg v Kingsbridge Hgts. CareCtr., Inc., 28 AD3d 465, 466 [2006]). Here, a review of the record reveals no suggestionof any judicial bias that would warrant recusal, reversal, and a new trial (see Matter ofO'Donnell v Goldenberg, 68 AD3d at 1000; Schwartzberg v Kingsbridge Hgts. Care Ctr.,Inc., 28 AD3d at 466; Matter of Malinda V., 221 AD2d 549, 549 [1995]).
"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" (Matter of State of New Yorkv Clarence D., 82 AD3d 776, 777 [2011]; see Northern Westchester ProfessionalPark Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]; 6243 Jericho Realty Corp. v AutoZone,Inc., 71 AD3d 983, 984 [2010]).
Here, the trial evidence supports the Supreme Court's determination that the appellant suffersfrom a "[m]ental abnormality," which SOMTA defines as "a congenital or acquired condition,disease or disorder that affects the emotional, cognitive, or volitional capacity of a person in amanner that predisposes him or her to the commission of conduct constituting a sex offense andthat results in that person having serious difficulty in controlling such conduct" (Mental HygieneLaw § 10.03 [i]).
At trial, the State's expert, a psychiatrist, testified that the appellant suffers from, amongother things, paraphilia NOS (not otherwise specified) and antisocial personality disorder. Hedetailed the appellant's specific pattern of deviant sexual arousal and his inability to control hisimpulses. He testified that the appellant, because of his condition and the resulting symptoms,was predisposed to committing sexual offenses and had serious difficulty controlling suchbehavior. Under these circumstances, the Supreme Court's determination that the appellantsuffers from a mental abnormality was warranted by the facts (see Mental Hygiene Law§ 10.03 [i]; Matter of State ofNew York v Clarence D., 82 AD3d 776 [2011]; Matter of State of New York v Gierszewski, 81 AD3d 1473 [2011];Matter of State of New York v DerrickB., 68 AD3d 1124, 1126-1127 [2009]).
Finally, the Supreme Court properly determined, after the dispositional hearing, that theappellant is a dangerous sex offender requiring confinement (see Mental Hygiene Law§ 10.07 [f]). At that hearing, the State's expert testified that the appellant's deviant sexualinterests, history of parole violations, indifference to rules, inability to self-regulate, andantisocial attitudes and behaviors made it likely that he would sexually reoffend. Although theappellant testified that he was enrolled in a sexual offender treatment program, the Statepresented credible evidence that the appellant had been removed from similar treatmentprograms on three previous occasions, once for poor behavior, once for possessing pornography,and once for repeatedly staring at a female corrections officer while putting his hand in his pants.Moreover, by making certain threats against the court and court personnel during the trial phase,the appellant demonstrated a continued inability to control his impulses, despite the fact that hehad completed an anger management program while incarcerated. Under these circumstances, theSupreme Court properly determined that the appellant is a dangerous sex offender requiring civilconfinement and properly directed that he be committed to a secure treatment facility for care,treatment, and control until such time as he no longer requires confinement (see MentalHygiene Law § 10.07 [f]; Matterof State of New York v Clarence D., 82 AD3d 776 [2011]; Matter of State of NewYork v Derrick B., 68 AD3d at 1127). Dillon, J.P., Balkin, Eng and Roman, JJ., concur.