| Matter of State of New York v Kenneth BB. |
| 2012 NY Slip Op 01528 [93 AD3d 900] |
| March 1, 2012 |
| Appellate Division, Third Department |
| In the Matter of State of New York,Respondent, v Kenneth BB., Appellant. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Allyson B. Levine of counsel), forrespondent.
Malone Jr., J. Appeal from an order of the Supreme Court (Cerio, J.), entered January 11,2010 in Chemung County, which, in a proceeding pursuant to Mental Hygiene Law article 10,found respondent to be a dangerous sex offender and confined him to a secure treatment facility.
In 2008, petitioner commenced this proceeding against respondent, a detained sex offender,seeking his civil management pursuant to Mental Hygiene Law article 10 (see MentalHygiene Law § 10.03 [g]; § 10.06 [a]). Supreme Court found probable cause tobelieve that respondent was a sex offender requiring civil management (see MentalHygiene Law § 10.06 [g], [k]; § 10.03 [q]). Following a jury trial, respondent wasfound to be a detained sex offender who suffers from a mental abnormality (see MentalHygiene Law § 10.03 [i]; § 10.07 [d]) and, following a dispositional hearing,Supreme Court adjudicated respondent a dangerous sex offender requiring confinement, andordered him confined to a secure treatment facility (see Mental Hygiene Law §10.07 [f]; § 10.03 [e]). Respondent appeals.
To the extent that respondent argues that the jury's verdict is not supported by legallysufficient evidence, we are not persuaded. Upon our review of the record, we find that there wasa valid line of reasoning by which the jury concluded that respondent suffers from a mentalabnormality (see Mental Hygiene Law § 10.03 [i]; Matter of State of New York vAnonymous, 82 AD3d 1250, 1251 [2011], lv denied 17 NY3d 702 [2011]).Respondent further contends that [*2]the jury's verdict is againstthe weight of the evidence and the jury erred by crediting the testimony of petitioner's expert overthat of his own expert. Petitioner's expert testified that he had reviewed the relevant records andinterviewed respondent before concluding that respondent suffered from pedophilia,polysubstance abuse in remission, adjustment disorder with mixed anxiety and depressed mood,and antisocial personality disorder. In light of his findings, petitioner's expert concluded thatrespondent suffers from a mental abnormality as that term is defined by the statute (seeMental Hygiene Law § 10.03 [i]). Respondent's expert testified that he did not considerrespondent to be a pedophile because neither of respondent's rape victims was prepubescent andbecause the allegations that respondent had also sexually abused a six-year-old child wereunsubstantiated. Respondent's expert further questioned petitioner's expert's reliance on theMillon Clinical Mult-Axial Inventory (hereinafter MCMI) in diagnosing respondent as having anantisocial personality disorder because he believed that the MCMI cannot provide a definitivediagnosis of such. We do not agree with respondent's argument that, given his expert'scredentials, the jury should have given his testimony greater weight than the testimony ofpetitioner's expert. Both experts were well qualified and the jury was free to make its owncredibility determinations and weigh the competing expert testimonies accordingly. Givingdeference to the jury's credibility determinations and resolution of the conflicting testimony, "theevidence did not preponderate so greatly in respondent's favor that the jury's conclusion wasunreachable under any fair interpretation of the evidence" (Matter of State of New York v Myron P., 86 AD3d 26, 29 [2011];see Matter of State of New York vRichard VV., 74 AD3d 1402, 1403 [2010]; Matter of State of New York v Shawn X., 69 AD3d 165, 169[2009], lv denied 14 NY3d 702 [2010]). Accordingly, we find no basis upon which todisturb the jury verdict.
Additionally, Supreme Court's finding that the abnormality from which respondent suffersinvolves such a strong predisposition to commit sex offenses, and an inability to control hisbehavior, that he is likely to be a danger to others and to commit sex offenses if he is notconfined to a secure treatment facility is supported by clear and convincing evidence (seeMental Hygiene Law § 10.07 [f]; § 10.03 [e]; Matter of State of New York v Craig T., 77 AD3d 1062, 1063[2010]). Supreme Court, as the trier of fact at the dispositional hearing, was in the best positionto evaluate the credibility of the expert witnesses and weigh the conflicting expert testimony, andwe accord deference to its decision to credit the testimony of petitioner's expert over that ofrespondent's expert (see Matter of Stateof New York v Blair, 87 AD3d 1327, 1327 [2011]). In that regard, petitioner's expertopined that, although respondent's score on a static actuarial risk assessment instrument placedhim in the low to moderate risk category, other dynamic factors increased respondent's risk ofreoffending. These dynamic factors included respondent's sexual interest in children, his inabilityto suppress sexual urges—as demonstrated by the fact that respondent committed theinstant offenses while on probation—and his distorted attitude about sexual abuse andsexual activities. Petitioner's expert also testified that, while the results of the psychologicaltesting administered to respondent indicated that he had the potential to adjust in society at somepoint in the future, respondent's manipulative, impulsive and aggressive personality traitscurrently hinder his ability to do so. The expert also considered respondent's refusal to participatein sex offender treatment while incarcerated, his "abhorrent" behavior while confined to thetreatment ward and his inability to comprehend what he needed to do, in terms of developing arelapse prevention plan, in order to avoid reoffending. On this record, Supreme Court's findingthat, at this time, respondent is a dangerous sex offender requiring confinement in a securetreatment facility is supported by clear and convincing evidence and will not be disturbed (seeMatter of State of New York v Richard VV., 74 AD3d at 1405).[*3]
Rose, J.P., Stein, McCarthy and Egan Jr., JJ., concur.Ordered that the order is affirmed, without costs.