| Matter of State of New York v James Z. |
| 2012 NY Slip Op 05767 [97 AD3d 1046] |
| July 26, 2012 |
| Appellate Division, Third Department |
| In the Matter of State of New York, Respondent, v James Z.,Appellant. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Allyson B. Levine of counsel), forrespondent.
Rose, J. Appeal from an order of the Supreme Court (McGrath, J.), entered April 27, 2011 inRensselaer 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.
In June 2010, prior to respondent's anticipated release from a correctional facility, petitionercommenced this proceeding alleging that respondent is a sex offender requiring civilmanagement (see Mental Hygiene Law § 10.06 [a]). Following a jury trial,respondent was found to be a detained sex offender with a mental abnormality as defined by theMental Hygiene Law (see Mental Hygiene Law § 10.07 [a]). Thereafter, uponrespondent's consent, Supreme Court found that respondent was a dangerous sex offenderrequiring confinement and ordered him to be committed to a secure treatment facility.Respondent now appeals.
Contrary to respondent's contention, the jury's finding that he suffers from a mentalabnormality is not against the weight of the evidence. "[A] jury verdict may be set aside asagainst the weight of the evidence only when the evidence preponderates so greatly in themovant's favor that the jury could not have reached its conclusion on any fair interpretation of the[*2]evidence" (Matter of Daniel XX., 53 AD3d 819, 820 [2008] [internalquotation marks and citations omitted]; accord Matter of Michael RR., 284 AD2d 786,787 [2001]). Petitioner presented the testimony of two psychologists, Jacob Hadden and RichardHamill, who had interviewed respondent and reviewed the relevant records. Petitioner's expertsestablished that respondent's sexual misconduct began in 1995, when, at age 17, he was chargedwith harassment in the second degree after he followed a college student while making vulgarsexual comments and threats toward her. In 1996, respondent was convicted of the crimes ofburglary in the second degree and attempted burglary in the second degree. While incarceratedfor these crimes, respondent was disciplined for masturbating in front of a female social workerand, on a different occasion, for exposing himself to a correction counselor while makingsexually explicit threats regarding the counselor's wife and daughter. In January 2003, within twomonths after being released on parole, respondent had sexual intercourse with a 13-year-oldfemale multiple times, resulting in his conviction for the crimes of rape in the second degree andsodomy in the second degree. In 2004, while incarcerated, respondent was disciplined forsending a four-page, sexually explicit letter to a woman who did not know him. After respondentwas again released on parole in 2008, he committed a violation within one month by making asexually explicit telephone call to a woman he did not know, resulting in the revocation of hisparole. Thereafter, respondent was transferred from his correctional facility to a psychiatriccenter, where, in 2010, he was found publicly masturbating while looking at a female staffmember.
Both of petitioner's experts diagnosed respondent with paraphilia not otherwise specified andantisocial personality disorder, and concluded that the combination of these diagnoses predisposerespondent to commit sex offenses. Additionally, both of petitioner's experts found thatrespondent's repeated sexual misconduct while incarcerated or otherwise superviseddemonstrates that he is unable to control his behavior, thereby establishing a mental abnormalityas that term is defined by the statute (see Mental Hygiene Law §§ 10.07 [d];10.03 [i]).
Respondent's expert psychologist, Don Grief, also diagnosed respondent with antisocialpersonality disorder, but discounted respondent's sexual behavior as nothing more than anattempt to evoke reactions that stemmed from his antisocial personality behavior. Respondentargues that Grief's testimony was more credible than that of petitioner's experts because, amongother things, theirs was contradicted by an earlier case review and a progress note in respondent'sinstitutional records. In considering the expert opinions, however, "the jury was free to make itsown credibility determinations and weigh the competing expert testimonies accordingly" (Matter of State of New York v KennethBB., 93 AD3d 900, 901 [2012]). Given that all of the expert witnesses were qualifiedand these issues were fully aired before the jury, we defer to the jury's credibility determinationsand conclude that its verdict is fully supported by the evidence (see Matter of State of New York v RichardVV., 74 AD3d 1402, 1404 [2010]; Matter of State of New York v Timothy JJ., 70 AD3d 1138, 1142[2010]).
We also reject respondent's contention that Supreme Court erred by permitting testimonyabout misconduct recorded in his presentence report, as psychiatric examiners are permitted toconsider such reports (see Mental Hygiene Law § 10.08 [b]; Matter of State of New York v MarkS., 87 AD3d 73, 77-78 [2011], lv denied 17 NY3d 714 [2011]; see also People v Mingo, 12 NY3d563, 572-574 [2009]). Nor can we agree with respondent's argument that the verdict sheetconfused the jury by presenting the issue in the form of two questions, as Supreme Court'sverdict sheet was consistent with PJI 8:8 and there was no evidence that the jury was confused(see Matter of State of New York vChrisman, 75 AD3d 1057, 1058 [2010]; see also [*3]Matter of State of New York vPierce, 79 AD3d 1779, 1781 [2010], lv denied 16 NY3d 712 [2011]; see generally Alvarado v Dillon, 67AD3d 1214, 1215-1216 [2009]).
Mercure, J.P., Kavanagh, McCarthy and Egan Jr., JJ., concur. Ordered that the order isaffirmed, without costs.