| Matter of State of New York v Boutelle |
| 2011 NY Slip Op 04904 [85 AD3d 1607] |
| June 10, 2011 |
| Appellate Division, Fourth Department |
| In the Matter of State of New York, Respondent, v David Boutelle,Appellant. |
—[*1]
Appeal from an order of the Supreme Court, Niagara County (Richard C. Kloch, Sr., A.J.),entered July 8, 2010 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. Respondent consented to a finding of mental abnormality and,contrary to his contention, petitioner established by clear and convincing evidence at thedispositional hearing that respondent is a dangerous sex offender requiring confinement (see§ 10.07 [f]). In determining whether petitioner met that burden, a court may "rely onall the relevant facts and circumstances" (Matter of State of New York v Motzer, 79 AD3d 1687, 1688[2010]). Here, petitioner established that respondent victimized three children, including his halfbrother, within three weeks of his release on parole. Respondent previously admitted to beingsexually attracted to prepubescent boys, and he also admitted that he required further treatment.Although respondent testified at the dispositional hearing that he is no longer sexually attractedto children, petitioner's expert psychologists diagnosed respondent with pedophilia and testifiedthat respondent is unable to control his behavior. Supreme Court's determination to discount thetestimony of respondent in light of petitioner's contrary evidence "was within the court's provinceas the factfinder, and we see no basis to disturb that determination" (Matter of State of NewYork v Flagg [appeal No. 2], 71 AD3d 1528, 1530 [2010]). Respondent's further contentionthat the court failed to consider alternatives to confinement is belied by the record.
We reject respondent's contention that the court failed to issue its decision in a timely mannerand to state in its decision the facts that it deemed essential in determining respondent to be adangerous sex offender requiring confinement (see Mental Hygiene Law § 10.07[b]; CPLR 4213 [b]-[c]). Although the decision was not issued within 60 days after the matterwas finally submitted (see Mental [*2]Hygiene Law§ 10.07 [b]; CPLR 4213 [c]), that defect is not jurisdictional and thus the decision is valid(see generally Matter of Jonathan D., 297 AD2d 400, 402 [2002]). Further, if respondentdesired a decision sooner, his remedy was to request a decision informally or to commence aCPLR article 78 proceeding to compel the court to issue a decision (see generally Miller vLanzisera, 273 AD2d 866, 867 [2000], appeal dismissed 95 NY2d 887 [2000],rearg denied 96 NY2d 731 [2001]). Present—Smith, J.P., Fahey, Carni, Lindleyand Gorski, JJ.