| Matter of State of New York v Charada T. |
| 2013 NY Slip Op 04548 [107 AD3d 528] |
| June 18, 2013 |
| Appellate Division, First Department |
| In the Matter of State of New York,Respondent, v Charada T., Appellant. |
—[*1] Eric T. Schneiderman, Attorney General, New York (Claude S. Platton of counsel),for respondent.
Orders, Supreme Court, New York County (Patricia NuÑez, J.), entered on orabout January 6, 2012, which, upon a jury finding of mental abnormality, and upon afinding made after a dispositional hearing that respondent is a dangerous sex offenderrequiring confinement, committed him to a secure treatment facility, unanimouslyaffirmed, without costs.
The court erred in permitting the State expert to testify regarding respondent'sadmission, in a presentence report, that he was in the vicinity when a rape, with which hewas never charged, was committed. While this statement was sufficiently reliable toshow that respondent was in the vicinity of the rape, it was not reliable for the purpose ofshowing that he committed the rape (see Matter of State of New York v Floyd Y., 102 AD3d 80,84, 87 [1st Dept 2012]). Nevertheless, this error was harmless given the expert's relianceon two brutal sexual assaults to which respondent pleaded guilty and a third that headmitted committing, and given the court's appropriate limiting instructions, whichserved to dispel any prejudice (see id. at 87).
The court properly permitted the State's expert to testify regarding evaluations by sexoffender program staff indicating that respondent "did not understand his sexual assaultcycle," that he minimized his criminal conduct, and that his treatment was "unsuccessful"(see Floyd Y., 102 AD3d at 86). Indeed, Mental Hygiene Law § 10.08 (c)provides that the State is entitled to request "any and all records and reports relating tothe respondent's commission or alleged commission of a sex offense, the institutionaladjustment and any treatment received by such respondent, and any medical, clinical orother information relevant to a determination of whether the respondent is a sex offenderrequiring civil management."
Respondent failed to preserve his argument that the court's alleged evidentiary errorsdeprived him of due process (see Matter of State of New York v Trombley, 98 AD3d1300, 1302[*2][4th Dept 2012], lv denied subnom. Matter of State of New York v Jody J.T., 20 NY3d 856 [2013]). In any event,the argument lacks merit (seegenerally Matter of State of New York v Enrique T., 93 AD3d 158, 172 [1stDept 2012], lv dismissed 18 NY3d 976 [2012]). Concur—Andrias, J.P.,Friedman, Moskowitz, DeGrasse and Feinman, JJ.