| Matter of State of New York v Timothy EE. |
| 2012 NY Slip Op 05683 [97 AD3d 996] |
| July 19, 2012 |
| Appellate Division, Third Department |
| In the Matter of State of New York,Respondent, v Timothy EE., Appellant. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Frank Brady of counsel), forrespondent.
Rose, J.P. Appeal from an order of the Supreme Court (Reynolds Fitzgerald, J.), enteredFebruary 22, 2011 in Broome County, which, in a proceeding pursuant to Mental Hygiene Lawarticle 10, found respondent to be a dangerous sex offender and confined him to a securetreatment facility.
Respondent pleaded guilty to rape in the first degree in 1991 and was sentenced to 10 to 20years in prison. In 2010, in anticipation of respondent's impending release, petitioner commencedthis proceeding pursuant to Mental Hygiene Law article 10 seeking a determination thatrespondent is a dangerous sex offender requiring civil management. Following a jury trialconducted pursuant to Mental Hygiene Law § 10.07 (d), respondent was found to be adetained sex offender who suffers from a mental abnormality. A dispositional hearing was thenheld pursuant to Mental Hygiene Law § 10.07 (f), and Supreme Court adjudicatedrespondent to be a dangerous sex offender requiring confinement. Respondent appeals.
Contrary to respondent's contention, the jury's determination that he suffers from a mentalabnormality is not against the weight of the evidence. Petitioner presented two experts, Paul Etuand Stuart Kirschner, both of whom had interviewed respondent and reviewed the relevantcriminal and institutional records. Both Etu and Kirschner diagnosed respondent with [*2]antisocial personality and sexual sadism disorders. Both expertsagreed that these disorders predisposed him to commit sex offenses and resulted in his havingserious difficulty in controlling his behavior (see Mental Hygiene Law § 10.03 [i]).Etu testified that his diagnosis of sexual sadism was based on, among other things, respondent'songoing rape fantasies, which have lasted for over two decades, respondent's statements that he issexually aroused by seeing fear and angst in the eyes of his victims, and his affinity forpornographic materials featuring sadomasochistic acts against women.
Kirschner testified that his diagnosis of sexual sadism was based in part on respondent'sadmission that, starting at age 17, he would frequent sex clubs to act out his rape fantasies in therole of a pain-inflicting dominator of consenting female partners. According to Kirschner,respondent grew tired of the role play and began to entertain the idea of perpetrating an actualrape, resulting in his 1991 conviction at the age of 29. Kirschner explained that respondentpassed the 17-year-old victim riding her bicycle on a country road and decided to rape her. Heturned his truck around, again drove past the victim and deliberately struck her with hispassenger side-view mirror, causing her to fall off of her bicycle. Respondent stopped, feignedconcern and offered to help the victim, who was injured and bleeding, in order to convince her toenter his truck. He then drove her to a remote wooded area, threatened her with a hatchet and anice pick, bound her wrists behind her back and raped her twice. When he left her alone for amoment, she thought he was getting a weapon to kill her and she escaped into the woods, stillnude, bound and bleeding. Additionally, in Kirschner's opinion, respondent also exhibitsvoyeuristic tendencies, inasmuch as, prior to his incarceration, respondent exposed himself toothers, including two six-year-old girls. On separate occasions in 1983, respondent attempted tokidnap a 10-year-old girl and a 19-year-old woman and, at the time he was arrested on the 1991rape charge, the police discovered that he possessed a collection of photos and videotapes of15-year-old girls from his neighborhood that he viewed while masturbating. In more recent years,while in prison, respondent sought to obtain the high-school yearbook photo of his rape victim byposing as her stepbrother, he wrote a threatening letter to his ex-wife stating that he would findher and "deal" with her once he was released, and he attempted to obtain the home addresses ofthe sentencing judge and the prosecutor.
Respondent's expert, Joseph Plaud, also diagnosed respondent with antisocial personalitydisorder, but concluded that respondent's sexual interests do not rise to the level of anydiagnosable paraphilia because his rape fixation is based upon anger, violence and a need forpower and control, as opposed to sexual gratification. Additionally, Plaud found that respondent'sadmission that he continues to have rape fantasies is a positive indication of his participation intherapy. Despite these conflicting expert opinions regarding whether respondent is a sexualsadist, we give deference to the jury's credibility determinations and find that " 'the evidence didnot preponderate so greatly in respondent's favor that the jury's conclusion was unreachable underany fair interpretation of the evidence' " (Matter of State of New York v Kenneth BB., 93 AD3d 900,901-902 [2012], quoting Matter of Stateof New York v Myron P., 86 AD3d 26, 29 [2011]; see Matter of State of New York v Richard VV., 74 AD3d 1402,1403 [2010]).
Respondent also challenges Supreme Court's determination that he is likely to be a danger toothers if not confined to a secure facility (see Mental Hygiene Law § 10.03 [e]). Atthe dispositional hearing, Etu testified that, based on respondent's scores on a static actuarial riskassessment instrument and a sexual sadism scale, he has a very high level of sexual sadism and isin the high risk category for reoffending. Plaud, in contrast, testified that respondent did not[*3]exhibit a propensity to reoffend and, accordingly, is a goodcandidate for strict and intensive supervision and treatment. We accord deference to the court'sdecision to credit the opinion of Etu over that of Plaud, as "Supreme Court was in the bestposition to evaluate the weight and credibility of the conflicting psychiatric testimony presented"(Matter of State of New York v TimothyJJ., 70 AD3d 1138, 1144 [2010]; accord Matter of State of New York v Craig T., 77 AD3d 1062,1064 [2010]; see Matter of State of New York v Kenneth BB., 93 AD3d at 902).Respondent's challenge to the reliability of the actuarial assessment instruments used by Etu goesto the weight of that evidence rather than its admissibility (see Matter of State of New York v Walter W., 94 AD3d 1177,1180 [2012]; Matter of State of NewYork 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]). Also, as Etu was permitted to rely upon informationgleaned from respondent's prison records in forming his opinion as to whether respondent wasdangerous and should be confined, we cannot say that Supreme Court erred in permitting Etu totestify about a disciplinary determination finding that respondent had threatened to rape a femaleparole officer upon his release (seeMatter of State of New York v Mark S., 87 AD3d 73, 80 [2011], lv denied 17NY3d 714 [2011]; Matter of State ofNew York v Motzer, 79 AD3d 1687, 1688-1689 [2010]; Matter of State of New York v Wilkes,77 AD3d 1451, 1453 [2010]). In short, our review of the dispositional hearing recorddiscloses no basis upon which to disturb the court's conclusion that respondent is a dangerous sexoffender requiring confinement.
Spain, Malone Jr., Kavanagh and Egan Jr., JJ., concur. Ordered that the order is affirmed,without costs.