| Matter of State of New York v Stein |
| 2011 NY Slip Op 04958 [85 AD3d 1646] |
| June 10, 2011 |
| Appellate Division, Fourth Department |
| In the Matter of State of New York, Respondent, v Shannon Stein,Appellant. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Treasure of counsel), forpetitioner-respondent.
Appeal from an order of the Supreme Court, Chautauqua County (Timothy J. Walker, A.J.),entered June 23, 2010 in a proceeding pursuant to Mental Hygiene Law article 10. The order,among other things, committed 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 pursuant to Mental Hygiene Law article 10in which Supreme Court determined, following a nonjury trial, that he has a mental abnormalitythat predisposes him to committing sex offenses (see Mental Hygiene Law § 10.03[i]), and directed that he be committed to a secure treatment facility. We reject respondent'scontention that the court improperly assumed the role of an advocate when it sua sponte reopenedthe proof at the conclusion of the mental abnormality phase of the trial, inasmuch as the courtstated on the record that additional evidence was required in order to clarify hearsay issues,particularly with respect to collateral interviews conducted by one of the psychologists (seegenerally People v Arnold, 98 NY2d 63, 68 [2002]). We further note that the court statedthat it would allow respondent's expert to provide a supplemental report and supplementaltestimony taking into account the new testimony. Also contrary to respondent's contention, theevidence is legally sufficient to support the court's determination that he suffers from a mentalabnormality within the meaning of Mental Hygiene Law § 10.03 (i) (see Matter of State of New York vGierszewski, 81 AD3d 1473 [2011]). According to the testimony of two psychologistspresented by petitioner, respondent suffers from paraphilia not otherwise specified, whichpredisposes him to committing sexual offenses, and that he has had serious difficulty controllingthat sexual conduct. Petitioner thus established by clear and convincing evidence that respondentsuffers from "a congenital or acquired condition, disease or disorder that affects [his] emotional,cognitive, or volitional capacity . . . in a manner that predisposes him. . . to the commission of conduct constituting a sex offense and that results in[respondent] having serious difficulty in controlling such conduct" (Mental Hygiene Law §10.03 [i]; see Gierszewski, 81 AD3d at 1473).[*2]
We further conclude that the court's determination thatrespondent suffers from a mental abnormality within the meaning of the statute is not against theweight of the evidence. The evidence presented by respondent that conflicted with that presentedby petitioner merely raised a credibility issue for the court to resolve, and its determination isentitled to great deference given its "opportunity to evaluate [first-hand] the weight andcredibility of [the] conflicting expert testimony" (Matter of State of New York v Chrisman, 75 AD3d 1057, 1058[2010]). Upon our review of the record, we conclude that the evidence does not " 'preponderate[ ]so greatly in [respondent's] favor that the [court] could not have reached its conclusion on anyfair interpretation of the evidence' " (Matter of State of New York v Shawn X., 69 AD3d 165, 169[2009], lv denied 14 NY3d 702 [2010]).
Contrary to respondent's further contention, the evidence is legally sufficient to support thedetermination that he requires confinement. Petitioner's two psychologists testified at thedispositional phase of the trial that respondent had multiple compliance problems in the past bothwith probation and parole and that he was likely to recidivate if released from custody. Petitionerthus established by the requisite clear and convincing evidence that respondent "has a mentalabnormality involving such a strong predisposition to commit sex offenses, and such an inabilityto control behavior, that the respondent is likely to be a danger to others and to commit sexoffenses if not confined to a secure treatment facility" (Mental Hygiene Law § 10.07 [f];see Matter of State of New York v CraigT., 77 AD3d 1062, 1063 [2010]). Respondent's contention regarding the order issuedfollowing the probable cause hearing is not properly before us because no appeal lies from suchan order (see Mental Hygiene Law § 10.13 [b]). We have considered respondent'sremaining contention and conclude that it is without merit. Present—Centra, J.P.,Peradotto, Lindley and Sconiers, JJ.