| Matter of State of New York v Blair |
| 2011 NY Slip Op 06724 [87 AD3d 1327] |
| September 30, 2011 |
| Appellate Division, Fourth Department |
| In the Matter of State of New York, Respondent, v Joey Blair,Appellant. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Patrick J. Walsh of counsel), forpetitioner-respondent.
Appeal from an order of the Supreme Court, Allegany County (Timothy J. Walker, A.J.),entered June 28, 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. Contrary to respondent's contention, we conclude that petitionerestablished by clear and convincing evidence at the dispositional hearing that he is a dangeroussex offender requiring confinement (see § 10.03 [e]; § 10.07 [f]). SupremeCourt, as the trier of fact, was "in the best position to evaluate the weight and credibility of theconflicting psychiatric testimony presented" (Matter of State of New York v Timothy JJ., 70 AD3d 1138, 1144[2010]; see Matter of State of New Yorkv Richard VV., 74 AD3d 1402, 1404 [2010]), and we discern no basis to disturb thecourt's decision to credit the testimony of petitioner's expert over that of respondent's expert (see Matter of State of New York vBoutelle, 85 AD3d 1607 [2011]). We reject the further contention of respondent that thecourt erred in permitting petitioner's expert to testify concerning his treatment progress at CentralNew York Psychiatric Center (CNYPC). Petitioner's expert reviewed the CNYPC treatmentrecords of respondent and thus was competent to testify with respect to conclusions that he drewtherefrom (see generally Matter of Stateof New York v Fox, 79 AD3d 1782, 1783-1784 [2010]). The admittedly limitedfamiliarity of the expert with CNYPC's treatment program goes " 'to the weight of his. . . opinion as evidence, not its admissibility' " (Kabalan v Hoghooghi, 77 AD3d 1350, 1351 [2010]; see Anderson v House of Good SamaritanHosp., 44 AD3d 135, 143 [2007]) and, in any event, the expert testified thatrespondent's progress or lack thereof at CNYPC did not significantly factor into his opinion.
Finally, respondent's constitutional and statutory challenges to the CNYPC treatmentprogram are not properly before us inasmuch as they are unpreserved for our review (see generally Matter of Giovanni K. [DawnK.], 68 AD3d 1766, 1767 [2009], lv denied 14 NY3d 707 [2010]; Matter ofWood [*2]v Goord, 265 AD2d 854 [1999]). In addition, wenote that many of those contentions involve matters outside the record on appeal, and we aretherefore unable to review them (seegenerally Matter of State of New York v Pierce, 79 AD3d 1779, 1781 [2010], lvdenied 16 NY3d 712 [2011]; Matterof State of New York v Campany, 77 AD3d 92, 99-100 [2010], lv denied 15NY3d 713 [2010]). In any event, on the record before us, there is no evidence that petitioner orCNYPC failed to fulfill its treatment responsibilities or violated respondent's due process rights.Present—Smith, J.P., Fahey, Peradotto, Lindley and Sconiers, JJ.