| Matter of State of New York v R.W. |
| 2012 NY Slip Op 07118 [99 AD3d 1010] |
| October 24, 2012 |
| Appellate Division, Second Department |
| In the Matter of State of New York, Respondent, v R.W.,Appellant. |
—[*1] Eric T. Schneiderman, Attorney General, New York, N.Y. (Michael S. Belohlavek andPatrick J. Walsh of counsel), for respondent.
In a proceeding pursuant to Mental Hygiene Law article 10, R.W., an alleged sex offenderrequiring civil management, appeals from an order of the Supreme Court, Kings County (Garnett,J.), dated March 30, 2011, which, upon a finding, made after a nonjury trial, that he suffers froma mental abnormality as defined in Mental Hygiene Law § 10.03 (i), and upon adetermination, made after a dispositional hearing, that he currently is a dangerous sex offenderrequiring civil confinement, in effect, granted the petition and directed that he be committed to asecure treatment facility for care, treatment, and control until such time as he no longer requiresconfinement.
Ordered that the order is affirmed, without costs or disbursements.
The appellant, R.W., was twice convicted of offenses involving the molestation of children.The State of New York filed the instant petition for civil confinement pursuant to MentalHygiene Law article 10 on July 31, 2008, the day before the appellant was scheduled to bereleased from the custody of the New York State Department of Correctional Services. At theensuing nonjury trial, the State presented the testimony of an expert forensic psychologist, whotestified that the appellant suffered from pedophilia, in addition to schizophrenia and anti-socialpersonality disorder, that the appellant was unable to control his sexual impulses toward children,and that the appellant would be a danger to others if he was not confined to a secure facility. Theappellant presented the testimony of his own expert forensic psychologist, who testified that theappellant was not a pedophile, but conceded that he did show some signs of pedophilia.
In an order dated March 31, 2010, the Supreme Court concluded that the appellant sufferedfrom pedophilia, and was unable to control his impulses. In an order dated March 30, 2011, thesame court found, by clear and convincing evidence, that the appellant was a dangerous sexualoffender who required confinement. The Supreme Court directed that the appellant be committedto a secure facility until such time as he no longer required confinement. R.W. appeals.
A "[m]ental abnormality" is defined as "a congenital or acquired condition, disease ordisorder that affects the emotional, cognitive, or volitional capacity of a person in a manner thatpredisposes him or her to the commission of conduct constituting a sex offense and that results in[*2]that person having serious difficulty in controlling suchconduct" (Mental Hygiene Law § 10.03 [i]). A "[d]angerous sex offender requiringconfinement" is defined under Mental Hygiene Law article 10 as "a person who is a detained sexoffender suffering from a mental abnormality involving such a strong predisposition to commitsex offenses, and such an inability to control behavior, that the person is likely to be a danger toothers and to commit sex offenses if not confined to a secure treatment facility" (Mental HygieneLaw § 10.03 [e]). The State must establish by clear and convincing evidence that theappellant is a dangerous sex offender requiring confinement (see Mental Hygiene Law§ 10.11 [d] [4]; Matter of State ofNew York v Jason H., 82 AD3d 778, 779 [2011]).
In reviewing a determination made after a nonjury trial, the power of the Appellate Divisionis as broad as that of the trial court, and it may render the judgment it finds warranted by thefacts, taking into account that in a close case the trial judge had the advantage of seeing andhearing the witnesses (see Northern Westchester Professional Park Assoc. v Town ofBedford, 60 NY2d 492, 499 [1983]; Matter of State of New York v Clarence D., 82 AD3d 776, 777[2011]).
Here, the Supreme Court's determination to credit the testimony of the State's expert witnessinstead of the testimony of the appellant's expert witness is supported by the record, and we findno basis to disturb it (see Matter of Stateof New York v Andrew J.W., 85 AD3d 805, 807 [2011]). Under these circumstances,the Supreme Court's determination that the appellant suffers from a mental abnormality waswarranted by the facts (see Mental Hygiene Law § 10.03 [i]; Matter of State of New York v ClarenceD., 82 AD3d 776, 777 [2011]). The Supreme Court also properly determined, after thedispositional hearing, that the appellant is a dangerous sex offender requiring confinement(see Mental Hygiene Law §§ 10.03 [e]; 10.07 [f]; Matter of State of New York v AndrewJ.W., 85 AD3d 805, 807 [2011]; Matter of State of New York v Clarence D., 82 AD3d 776, 777[2011]). Dillon, J.P., Dickerson, Austin and Miller, JJ., concur.