| Matter of State of New York v Reeve |
| 2011 NY Slip Op 06778 [87 AD3d 1378] |
| September 30, 2011 |
| Appellate Division, Fourth Department |
| In the Matter of State of New York, Respondent, v Keith Reeve,Appellant. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Arnold of counsel), forpetitioner-respondent.
Appeal from an order of the Supreme Court, Onondaga County (Brian F. DeJoseph, J.),entered January 22, 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 petitionermet its burden of establishing by clear and convincing evidence that respondent suffers from amental abnormality (see Matter of Stateof New York v Farnsworth, 75 AD3d 14, 17 [2010], appeal dismissed 15 NY3d848 [2010]; see generally Mental Hygiene Law § 10.03 [i]). Petitioner alsoestablished by clear and convincing evidence that respondent has such an inability to control hisbehavior that he "is likely to be a danger to others and to commit sex offenses if not confined"(§ 10.07 [f]). Thus, Supreme Court's determination that respondent should be committed toa secure treatment facility is not against the weight of the evidence (see generally id.).
"Respondent's contention regarding the order issued following the probable cause hearing isnot properly before us because no appeal lies from such an order" (Matter of State of New York v Stein,85 AD3d 1646, 1648 [2011]; see Mental Hygiene Law § 10.13 [b]).Respondent's further contention regarding the standard of proof is not preserved for our reviewinasmuch as he failed to raise it before the trial court (see Matter of State of New York v Gierszewski, 81 AD3d 1473[2011], lv denied 17 NY3d 702 [2011]; Matter of State of New York v Chrisman, 75 AD3d 1057 [2010];cf. Matter of State of New York vRashid, 16 NY3d 1, 13 [2010]). In any event, respondent's contention is not properlybefore us because it is raised for the first time in his reply brief (see Matter of State of NewYork v Zimmer [appeal No. 4], 63 AD3d 1563 [2009]; see generally Turner v Canale, 15 AD3d 960 [2005], lvdenied 5 NY3d 702 [2005]).
We have considered respondent's remaining contentions and conclude that they are [*2]without merit. Present—Scudder, P.J., Smith, Lindley,Sconiers and Gorski, JJ.