| Matter of State of New York v Donald DD. |
| 2013 NY Slip Op 04061 [107 AD3d 1062] |
| June 6, 2013 |
| Appellate Division, Third Department |
| In the Matter of State of New York, Respondent, v DonaldDD., Appellant. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Treasure of counsel),for respondent.
Peters, P.J. Appeal from an order of the Supreme Court (Lalor, J.), entered December29, 2010 in Greene County, which granted petitioner's application, in a proceedingpursuant to Mental Hygiene Law article 10, to find respondent to be a dangerous sexoffender and confined him to a secure treatment facility.
Respondent's history of sexually inappropriate behavior began at the age of nine,when he admitted to molesting three young girls and was declared a person in need ofsupervision. Since then, he has amassed an eclectic criminal record that includesnumerous sex-related convictions. In 2004, he pleaded guilty to rape in the second degreeand attempted rape in the second degree as a result of his sexual activity with two girls,aged 12 and 14. He was initially sentenced to a jail term of six months and a concurrentprobation term of 10 years. Respondent raped an adult acquaintance shortly thereafter,resulting in a conviction for sexual abuse in the second degree and an admission that hehad violated the terms of his probation. He subsequently admitted to violating the termsof his probation in other respects and was sentenced to a prison term of 1 to 3 years. Hewas paroled in 2008 and, shortly thereafter, allegedly raped his wife and sexually abusedtheir two children. Respondent was then detained and charged with violating the terms ofhis parole by failing to register as a sex offender, disregarding his curfew and being inthe presence of his children.[*2]
Petitioner commenced this proceeding pursuantto Mental Hygiene Law article 10 as respondent's latest release from custody neared,alleging that he is a sex offender requiring civil management. Following a jury trial,respondent was determined to suffer from a mental abnormality as defined by MentalHygiene Law § 10.03 (i). Supreme Court then conducted a dispositional hearingand found him to be a dangerous sex offender in need of confinement (seeMental Hygiene Law § 10.07 [f]). Respondent appeals.
Respondent initially contends that the jury's verdict was against the weight of theevidence, specifically asserting that the jury could not determine that he suffered from amental abnormality because he suffers from a mental condition without any sexualcomponent, namely, antisocial personality disorder with psychopathic traits. We disagree.The statutory definition of mental abnormality does not require any specific psychiatricdiagnosis and "utilize[s] phraseology that, while informed by prevailing medicalknowledge, is intended to have greater legal, and not medical, significance" (Matter of State of New York vShannon S., 20 NY3d 99, 106 [2012], cert denied 568 US —, 133S Ct 1500 [2013]). This is because it is intended to further the legal aim of MentalHygiene Law article 10 to require treatment for—and protect the publicfrom—individuals who suffer from conditions that "predispose them to engage inrepeated sex offenses" (Mental Hygiene Law § 10.01 [b]; see Matter of Stateof New York v Shannon S., 20 NY3d at 106; see e.g. Young v Murphy, 615F3d 59, 65-66 [1st Cir 2010]). A mental abnormality is, therefore, defined by statute asany condition "that affects the emotional, cognitive, or volitional capacity of aperson in a manner that predisposes him or her to the commission of conduct constitutinga sex offense and that results in that person having serious difficulty in controlling suchconduct" (Mental Hygiene Law § 10.03 [i]). Indeed, it is precisely that difficulty incontrolling behavior—when viewed in light of the nature and severity of theclaimed mental abnormality—that distinguishes individuals subject to theprovisions of Mental Hygiene Law article 10 "from the dangerous but typical recidivistconvicted in an ordinary criminal case" (Kansas v Crane, 534 US 407, 413[2002]; see Young v Murphy, 615 F3d at 65-66; Commonwealth vMazzarino, 81 Mass App Ct 358, 369-370, 963 NE2d 112, 121-122 [2012],review denied 462 Mass 1109, 970 NE2d 333 [2012]).
Here, experts for both petitioner and respondent agreed that individuals sufferingfrom antisocial personality disorder do not necessarily have a mental abnormality asdefined by the Mental Hygiene Law. They also agreed, however, that the condition couldconstitute a mental abnormality if it predisposed the sufferer "to the commission ofconduct constituting a sex offense and [resulted] in that person having serious difficultyin controlling such conduct" (Mental Hygiene Law § 10.03 [i]). This is becauseantisocial personality disorder affects the emotional and volitional capacity of itssufferers by predisposing them to act upon their urges "in an aggressive manner."Petitioners' experts found respondent to have inappropriate sexual urges given his patternof engaging in sex offenses, and that the disorder caused him to disregard any restraintshe may have had against acting upon them. Those experts further opined thatrespondent's repeated commission of sex offenses demonstrated his serious difficulty inrestraining those impulses, particularly because he acted upon them despite knowing thathe was under supervision and having already undergone sex offender treatment. Whilerespondent's expert minimized respondent's behavior in various respects and did not findhim to suffer from a mental abnormality, those "issues were fully aired before the jury,[and] we defer to the jury's credibility determinations and conclude that its verdict is fullysupported by the evidence" (Matter of State of New York v James Z., 97 AD3d 1046,1048 [2012], lv denied 20 NY3d 853 [2012]; see Matter of State of New York v Timothy EE., 97 AD3d996, 998 [2012]; Matter ofState of New York v Andrew J.W., 85 AD3d 805, 807 [2011]).[*3]
Contrary to respondent's further contention,Supreme Court properly denied his motion to set aside the jury's verdict. Respondentasserted that, during jury selection, one of the jurors failed to disclose that she wasacquainted with his siblings. Even assuming that claim to have been sufficientlydocumented, respondent failed to show that he had been prejudiced by the claimedmisconduct (see Snediker v County of Orange, 58 NY2d 647, 649 [1982];People v Dunbar Contr. Co., 215 NY 416, 426 [1915]; Remillard v Louis Williams,Inc., 59 AD3d 764, 766 [2009]).[FN*]
We further find that clear and convincing evidence supports Supreme Court'sdetermination that respondent is a dangerous sex offender requiring confinement. Inopining that respondent was such an individual, petitioner's expert detailed the results ofan actuarial risk assessment instrument that found respondent to be at a high risk toreoffend. The expert also stressed respondent's lengthy history of committing sexoffenses—and particularly his pattern of committing them while under parole andprobation supervision—as demonstrating his inability to control his impulses.Respondent's expert attempted to call the justifications of petitioner's expert, and hisultimate opinion, into question. Nevertheless, after reviewing the conflicting testimonyindependently and according deference to Supreme Court's credibility assessments, weperceive no basis upon which to disturb the disposition (see Matter of State of New York vLonard ZZ., 100 AD3d 1279, 1281 [2012]; Matter of State of New York v Peter Y., 99 AD3d 1059,1061 [2012]).
Rose, Lahtinen and Garry, JJ., concur. Ordered that the order is affirmed, withoutcosts.
Footnote *: The evidence indicatedthat, if anything, the juror's relationships with respondent's siblings biased the juror inrespondent's favor. The juror purportedly stated that respondent was not a threat and, infact, "was upset that he lost."