| Matter of State of New York v Gooding |
| 2013 NY Slip Op 01945 [104 AD3d 1282] |
| March 22, 2013 |
| Appellate Division, Fourth Department |
| In the Matter of State of New York, Respondent, v DerekGooding, Appellant. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Allyson B. Levine of counsel), forpetitioner-respondent.
Appeal from an order of the Supreme Court, Erie County (John L. Michalski, A.J.),entered February 2, 2012 in a proceeding pursuant to Mental Hygiene Law article 10.The order, among other things, determined that respondent is a dangerous sex offenderrequiring confinement and committed him to a secure treatment facility.
It is hereby ordered that the order so appealed from is unanimously affirmed withoutcosts.
Memorandum: Respondent appeals from an order revoking his prior regimen of strictand intensive supervision and treatment (SIST), determining that he is a dangerous sexoffender requiring confinement and committing him to a secure treatment facility(see Mental Hygiene Law § 10.01 et seq.). Contrary torespondent's contention, we conclude that petitioner established by clear and convincingevidence at the dispositional hearing that he is a dangerous sex offender requiringconfinement (see §§ 10.03 [e]; 10.07 [f]). Moreover, SupremeCourt, as the trier of fact, was " 'in the best position to evaluate the weight and credibilityof the conflicting psychiatric testimony presented' " (Matter of State of New York v Blair, 87 AD3d 1327, 1327[2011]; see Matter of State ofNew York v Timothy JJ., 70 AD3d 1138, 1144 [2010]), and we see no basis todisturb its decision to credit the testimony of petitioner's expert over that of respondent'sexpert (see Blair, 87 AD3d at 1327). We reject respondent's further contentionthat petitioner was required to "refute the possibility of a less restrictive placement" orthat the court was required to specifically address the issue of a less restrictive alternative(see Matter of State of NewYork v Enrique T., 93 AD3d 158, 166-167 [2012], lv dismissed 18NY3d 976 [2012]).
Finally, respondent's constitutional and statutory challenges to thetreatment he received while in a regimen of SIST (see Mental Hygiene Law§ 10.11) at Mid-Erie Counseling and Treatment Services (Mid-Erie) are notproperly before us inasmuch as they are unpreserved for our review (see Blair, 87AD3d at 1328; see generallyMatter of Giovanni K. [Dawn K.], 68 AD3d 1766, 1767 [2009], lv denied14 NY3d 707 [2010]). In any event, on the record before us, there is no evidencethat either petitioner or Mid-Erie failed to fulfill its treatment responsibilities or violatedrespondent's due process rights. Present—Smith, J.P., Peradotto, Carni, Valentinoand Martoche, JJ.