| Matter of State of New York v Walter W. |
| 2012 NY Slip Op 02537 [94 AD3d 1177] |
| April 5, 2012 |
| Appellate Division, Third Department |
| In the Matter of State of New York, Respondent, v WalterW., Appellant. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Marlene O. Tuczinski of counsel), forrespondent.
Peters, J.P. Appeal from an order of the Supreme Court (Kramer, J.), entered May 24, 2011in Schenectady County, which, in a proceeding pursuant to Mental Hygiene Law article 10, foundrespondent to be a dangerous sex offender and confined him to a secure treatment facility.
Over almost half a century, respondent has committed sex offenses against seven knownprepubescent victims in multiple states. Most recently, in 2004, respondent was charged with anumber of sex crimes stemming from his sexual abuse of two girls, ages 10 and 11, who were thegranddaughters of his friend. He was convicted upon his plea of guilty of sexual abuse in the firstdegree and sentenced to six years in prison. In February 2010, prior to his anticipated releasedate, petitioner commenced this proceeding pursuant to Mental Hygiene Law article 10 allegingthat respondent was a sex offender requiring civil management. After Supreme Court foundprobable cause for the petition (see Mental Hygiene Law § 10.06 [k]), respondentwaived his right to a jury trial and admitted to being a detained sex offender suffering from amental abnormality (see Mental Hygiene Law § 10.07 [a]). Following adispositional hearing, Supreme Court found respondent to be a dangerous sex offender in need ofconfinement and committed him to a secure treatment facility (see Mental Hygiene Law§ 10.07 [f]). Respondent now appeals, contesting Supreme Court's finding that he requirescivil confinement, rather than a regimen of strict and intensive supervision and treatment(hereinafter SIST).[*2]
To demonstrate that respondent is a dangerous sexoffender requiring civil confinement, petitioner was required to prove "by clear and convincingevidence that . . . respondent has a mental abnormality involving such a strongpredisposition to commit sex offenses, and such an inability to control behavior, that [he] islikely to be a danger to others and to commit sex offenses if not confined to a secure treatmentfacility" (Mental Hygiene Law § 10.07 [f]). At the dispositional hearing, petitionerpresented the expert testimony of two licensed psychologists, Katrina Colistra and Bud Ballinger.Both diagnosed respondent with pedophilia and opined that, based upon their interviews withhim, a review of his institutional and criminal records and the results of actuarial assessments,respondent is a dangerous sex offender requiring confinement. Colistra testified that respondentscored a seven on the STATIC-99, which placed him in the high risk category for reoffending.Colistra also employed the "screening scale for pedophilic interests," in which respondent scoreda five on a scale of zero to five. Ballinger administered the STATIC-99R, which he explaineddiffered from the STATIC-99 only in that it scored a person's age differently and applied newlyrevised recidivism rates, and stated that respondent's score was a five or "high end of themoderate risk category." In that regard, Ballinger noted that, although research shows a decline inrecidivism after age 60, respondent's score of five, which reflected a three-point reduction for hisage, underestimated his risk because respondent was over the age of 60 when he committed hismost recent sex offense and, therefore, does not possess the same age-related decline inrecidivism that has been generally observed.
In addition, both Colistra and Ballinger identified a number of dynamic factors indicatingthat respondent posed an enhanced risk of reoffending in the community, including his deviantsexual interests, sexual preoccupation, use of sex as a coping mechanism, emotionalidentification with children, poor general and sexual self-regulation, limited social relationshipsand supportive ties in the community, and lack of sex offender treatment. According to Ballinger,respondent's several dynamic risk factors and the wide variety of his victims, both in age andgender, demonstrated a high level of sexual deviance and significantly added to his risk level.Moreover, both Colistra and Ballinger found it particularly significant that respondent victimizedthe 11-year-old granddaughter of one of his friends and, even after he learned that she hadreported the incident to an adult, thereafter sexually abused her 10-year-old sister as well,concluding that such conduct clearly evinced respondent's inability to control his sexual urgesdespite the repercussions for his behavior and the possibility of jeopardizing one of the fewpersonal relationships he had. Colistra and Ballinger testified further that, as a result ofrespondent's cognitive distortions, he minimizes his behavior—including imputingresponsibility to his victims—and fails to acknowledge the deviant sexual arousal heexperiences. While Colistra and Ballinger noted factors that mitigated respondent's risk,including his employment history, financial resources, positive progress while incarcerated andreported long-term relationships with two adult women, each concluded that respondent's historyof repeated sexual offending, despite multiple and various sanctions, demonstrated a strongdisposition for offending and an inability to control his behavior such that he presents aheightened risk if released to the community.
In contrast, respondent's expert, psychologist Don Greif, opined that respondent could residesafely in the community under a regime of SIST. He testified that respondent was the victim ofsexual, physical and emotional abuse as a child and that, since his most recent offense,respondent has come to understand the connection between the abuse he suffered and theoffenses he has committed. He noted that respondent had not been arrested or charged with anysexually related crimes for an extended period of time prior to committing the most recentoffense, and testified that respondent's change in pattern and victim pool indicates that he is [*3]unlikely to return to his original "more predatory pattern" ofvictimizing boys with whom he had no prior relationship. Greif stated that the facts underlyingrespondent's 2004 sexual offenses showed that respondent had exhibited "really bad judgment,"but conceded that his conduct also indicates that he continues to experience a deviant interest inchildren and has a strong difficulty in controlling his sexual urges and fantasies, which could beactivated under the right circumstances. Greif cited several additional factors in support of hisopinion that respondent does not require confinement, including his history of continuousemployment, the fact that he had developed religious beliefs and formed a relationship with achaplain while in prison, and the absence of any history of substance abuse or dependency, andfound it "virtually impossible" for respondent to return to his previous pattern of predatory sexualoffending if subject to a regime of SIST.
Recognizing that "Supreme Court was in the best position to evaluate the weight andcredibility of the conflicting psychiatric testimony presented" (Matter of State of New York v TimothyJJ., 70 AD3d 1138, 1144 [2010] [citation omitted]; accord Matter of State of New York v Craig T., 77 AD3d 1062,1064 [2010]), we accord deference to its decision to credit the opinions of Colistra and Ballingerover that of Greif. Respondent's challenge to the reliability of the actuarial assessmentinstruments used by Colistra and Ballinger goes to the weight of the evidence rather than itsadmissibility (see Matter of State ofNew York v High, 83 AD3d 1403, 1403-1404 [2011], lv denied 17 NY3d 704[2011]; Matter of State of New York vFox, 79 AD3d 1782, 1784 [2010]). Upon our independent review of the evidence andaccording deference to Supreme Court's factual and credibility determinations (see Matter ofState of New York v Timothy JJ., 70 AD3d at 1145), we find no basis upon which to disturbthe court's finding that respondent is a dangerous sex offender requiring confinement.
Rose, Kavanagh, Garry and Egan Jr., JJ., concur. Ordered that the order is affirmed, withoutcosts.