| Matter of State of New York v Andrew J.W. |
| 2011 NY Slip Op 05081 [85 AD3d 805] |
| June 7, 2011 |
| Appellate Division, Second Department |
| In the Matter of State of New York, Respondent, v AndrewJ.W., Appellant. |
—[*1] Eric T. Schneiderman, Attorney General, New York, N.Y. (Michael S. Belohlavek andPatrick J. Walsh of counsel), for respondent.
In a proceeding pursuant to Mental Hygiene Law article 10, Andrew J.W., an alleged sexoffender requiring civil management, appeals from an order of the Supreme Court, WestchesterCounty (Cohen, J.), dated November 10, 2009, which, upon a finding, made after a nonjury trial,that he suffers from a mental abnormality as defined in Mental Hygiene Law § 10.03 (i),and a determination made after a dispositional hearing that he is currently a dangerous sexoffender requiring civil confinement, granted the petition and directed that he be committed to asecure treatment facility for care and treatment.
Ordered that the order is affirmed, without costs or disbursements.
In August 1984 the appellant Andrew J.W. was convicted of rape in the first degree, andsentenced to a term of 12½ to 25 years of imprisonment. Shortly before his release fromprison, the State of New York filed a petition pursuant to Mental Hygiene Law article 10, alsoknown as the Sex Offender Management and Treatment Act (hereinafter SOMTA) for the civilmanagement of the appellant (see Mental Hygiene Law § 10.06 [a]). Afterconducting a nonjury trial (see Mental Hygiene Law § 10.07 [a], [b]), the SupremeCourt found that the appellant suffers from a "[m]ental abnormality" as that phrase is defined inSOMTA (Mental Hygiene Law § 10.03 [i]). The Supreme Court then conducted adispositional hearing, after which it determined that the appellant was a dangerous sex offenderrequiring confinement (see Mental Hygiene Law § 10.03 [e]).
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 that it finds warranted by thefacts, taking into account that in a close case the trial judge had the advantage of seeing andhearing the witnesses (see Northern Westchester Professional Park Assoc. v Town ofBedford, 60 NY2d 492, 499 [1983]; Matter of State of New York v Clarence D., 82 AD3d 776 [2011]).
Contrary to the appellant's contention, the evidence presented at trial supports the SupremeCourt's finding that he suffers from a "[m]ental abnormality," which is defined as "a congenital oracquired [*2]condition, disease or disorder that affects theemotional, cognitive, or volitional capacity of a person in a manner that predisposes him or her tothe commission of conduct constituting a sex offense and that results in that person havingserious difficulty in controlling such conduct" (Mental Hygiene Law § 10.03 [i]).
Here, both the psychologist who performed the initial clinical evaluation of the appellantpursuant to Mental Hygiene Law article 10, and the State's forensic expert who testified at trial,diagnosed the appellant as suffering from antisocial personality disorder (hereinafter ASPD)which causes him to commit sexual offenses against vulnerable women, and to have seriousdifficulty controlling his behavior. The appellant's expert witness also initially diagnosed theappellant as suffering from ASPD, but thereafter changed his diagnosis based upon review of apsychological evaluation performed in 1963. "The trier of fact is in the best position to evaluatethe weight and credibility of conflicting expert medical and psychiatric testimony" (Matter of State of New York v DonaldN., 63 AD3d 1391, 1394 [2009]; see Matter of State of New York v Jason H., 82 AD3d 778 [2011]).The Supreme Court's decision to credit the testimony of the State's expert witness instead of thetestimony of the appellant's expert witness is supported by the record, and we find no basis todisturb it (see Matter of State of NewYork v Clarence D., 82 AD3d 776 [2011]).
The Supreme Court also properly determined, after the dispositional hearing, that theappellant is a dangerous sex offender requiring confinement (see Mental Hygiene Law§ 10.03 [e]; § 10.07 [f]; Matter of State of New York v Anonymous, 82 AD3d 1250 [2011];Matter of State of New York v JasonH., 82 AD3d 778 [2011]; Matter of State of New York v Clarence D., 82 AD3d 776 [2011];Matter of State of New York v StevenL., 66 AD3d 788, 789-790 [2009]). Dillon, J.P., Balkin, Eng and Roman, JJ., concur.