| Matter of State of New York v Andre L. |
| 2011 NY Slip Op 04476 [84 AD3d 1248] |
| May 24, 2011 |
| Appellate Division, Second Department |
| In the Matter of State of New York, Respondent, v AndreL., Appellant. |
—[*1] Eric T. Schneiderman, Attorney General, New York, N.Y. (Michael S. Belohlavek andSudarsana Srinivasan of counsel), for respondent.
In a proceeding pursuant to Mental Hygiene Law article 10 for the civil management ofAndre L., a sex offender allegedly requiring civil management, Andre L. appeals from an order ofthe Supreme Court, Kings County (Dowling, J.), dated March 16, 2010, which, upon a finding,after a jury trial, that he suffers from a mental abnormality as defined in Mental Hygiene Law§ 10.03 (i), and a determination, after a dispositional hearing, that he currently is adangerous sex offender requiring civil confinement, in effect, granted the petition and directedthat he be committed to a secure treatment facility for care, treatment, and control until such timeas he no longer 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). In January 1992, theappellant was convicted, upon his plea of guilty, of robbery in the second degree based on threeincidents that occurred during the summer of 1991 in which the appellant allegedly exposedhimself to women on the street, demanded the personal property of two of the women, andslashed these two women with a knife. The appellant was sentenced to an indeterminate term ofimprisonment of 18 to 54 months, was released to parole in March 1995, and was dischargedfrom parole in September 1996. In June 1998, the appellant was convicted, upon his plea ofguilty, of robbery in the first degree based on an incident in December 1997 in which heallegedly demanded, while displaying a knife, that a woman give him her pocketbook andundress, and then grabbed her breasts. At the time of his arrest, the appellant was wearingwomen's undergarments, with his penis exposed, under an open trench coat. The appellant wassentenced to a determinate term of imprisonment of 10 years.
On August 29, 2006, the appellant was admitted directly to the Central New York PsychiatricCenter (hereinafter CNYPC) for involuntary care pursuant to Mental Hygiene Law article 9.Although requested by the appellant, no hearing was held pursuant to either Mental Hygiene Law§ 9.31 (a) or § 9.33 (c), and an order of retention was not issued. SOMTA becameeffective on April 13, 2007, and in February 2008, based upon the recommendation of a casereview team appointed by the [*2]State Commissioner of MentalHealth, the Attorney General filed a petition in the Supreme Court, Oneida County, pursuant toMental Hygiene Law article 10 for the civil management of the appellant (see MentalHygiene Law § 10.06). After the appellant's motion to transfer venue to Kings County wasgranted, the Supreme Court conducted a probable cause hearing (see Mental HygieneLaw § 10.06 [g]). The Supreme Court found that there was probable cause to believe thatcivil management was required. The Supreme Court subsequently conducted a jury trial on theissues of whether the robbery in the first degree, a designated felony pursuant to Mental HygieneLaw § 10.03 (f), was sexually motivated and whether the appellant suffers from a mentalabnormality (see Mental Hygiene Law § 10.03 [i]). The jury unanimously foundthat the designated felony was sexually motivated and that the appellant suffers from a mentalabnormality. Thereafter, the appellant moved to dismiss the petition on the ground that he wasnot a lawfully detained sex offender. The Supreme Court denied the motion and subsequentlyconducted a dispositional hearing (see Mental Hygiene Law § 10.07 [f]). At theconclusion of the hearing, the Supreme Court found that the appellant was a dangerous sexoffender requiring civil confinement and ordered such confinement (id.).
The appellant contends that the jury's findings that the designated felony was sexuallymotivated and that he suffers from a mental abnormality were contrary to the weight of theevidence. "[A] jury verdict may be set aside as against the weight of the evidence only when theevidence preponderates so greatly in the movant's favor that the jury could not have reached itsconclusion on any fair interpretation of the evidence" (Matter of State of New York v ShawnX., 69 AD3d 165, 169 [2009] [internal quotation marks omitted]; see Matter of State ofNew York v Gierszewski, 81 AD3d 1473 [2011]; Matter of State of New York v DerrickB., 68 AD3d 1124, 1126 [2009]). A jury's determinations as to the credibility of thewitnesses are "entitled to great deference given the jury's opportunity to evaluate the weight andcredibility of conflicting expert testimony" (Matter of State of New York v Shawn X., 69AD3d at 168; see Matter of State of New York v Chrisman, 75 AD3d 1057, 1058 [2010];Matter of State of New York v Richard VV., 74 AD3d 1402, 1403 [2010]; Matter ofState of New York v Timothy JJ., 70 AD3d 1138, 1142 [2010]).
At trial, the State's expert, a psychiatrist, testified that in 1997, the appellant left his homedressed in women's undergarments with the intention of exposing himself, and the robbery wasan additional element that was part of the thrill involving sexual arousal. Additionally, the State'sexpert opined that the appellant suffered from exhibitionism and fetishism and that thesedisorders made it unlikely that the appellant could control his impulses not only to exposehimself but to have sexual contact with unknown women. Under these circumstances,notwithstanding the conflicting expert testimony presented by the appellant, the jury's verdict thatthe designated felony was sexually motivated and that the appellant suffers from a mentalabnormality was supported by a fair interpretation of the evidence (see Matter of State ofNew York v Shawn X., 69 AD3d at 169; Matter of State of New York v Derrick B.,68 AD3d at 1126).
Additionally, the Supreme Court properly denied the appellant's motion to dismiss thepetition on the ground that he was not a "[d]etained sex offender" as defined by Mental HygieneLaw § 10.03 (g) (5). The determination was proper because the appellant was convicted ofa sexually motivated designated felony (see Mental Hygiene Law § 10.03 [f], [p]),was admitted directly to CNYPC, an Office of Mental Health (hereinafter OMH) facility,pursuant to Mental Hygiene Law article 9 upon his release from prison in August 2006, and hasremained continuously in the custody of OMH, an agency with jurisdiction under MentalHygiene Law article 10 (see Matter of State of New York v Angel A., 74 AD3d 1209,1211 [2010]; Matter of State of New York v Blair, 69 AD3d 15 [2009]; Matter ofLarry TT., 68 AD3d 1229 [2009]; see generally People ex rel. Joseph II. v Superintendentof Southport Correctional Facility, 15 NY3d 126 [2010]; State of N.Y. ex rel. Harkavy vConsilvio, 8 NY3d 645 [2007]). Assuming, without deciding, that the failure to hold ahearing under article 9 was attributable to the State, the proper remedy was not the release of theappellant, but an expeditious hearing pursuant to Mental Hygiene Law § 10.07 (seeMatter of State of New York v Angel A., 74 AD3d at 1212; Matter of Larry TT., 68AD3d at 1230).
The Supreme Court properly found, after the dispositional hearing, by clear and convincingevidence, that the appellant's level of dangerousness requires that he be confined rather than besubject to strict and intense supervision (see Mental Hygiene Law § 10.07 [f];Matter of State of New York v Clarence D., 82 AD3d 776 [2011]; Matter of State ofNew York v Steven L., 66 AD3d 788, 789-790 [2009]).[*3]
The appellant's remaining contention is without merit(see Matter of State of New York v Shawn X., 69 AD3d at 172 n 6; Matter of State ofNew York v Stanley D., 68 AD3d 1007 [2009]; Matter of State of New York v StevenL., 66 AD3d at 789). Covello, J.P., Chambers, Lott and Miller, JJ., concur.