| Matter of State of New York v Matter |
| 2013 NY Slip Op 06188 [109 AD3d 1181] |
| September 27, 2013 |
| Appellate Division, Fourth Department |
| In the Matter of State of New York, Respondent, v MichaelMatter, Appellant. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Frank Brady of counsel), forpetitioner-respondent.
Appeal from an order of the Supreme Court, Niagara County (Richard C. Kloch, Sr.,A.J.), entered April 19, 2012 in a proceeding pursuant to Mental Hygiene Law article 10.The order determined that respondent is a dangerous sex offender requiring confinementand committed respondent 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.). On a prior appeal, weaffirmed an order determining that respondent is a detained sex offender requiring civilmanagement through a regimen of SIST and placing him with the New York StateDepartment of Corrections and Community Supervision (Matter of State of New York vMatter, 103 AD3d 1113 [2013]). While that prior appeal was pending,petitioner filed a petition alleging that respondent had violated the conditions and termsof his SIST regimen, and a hearing was held on the petition.
We conclude that respondent's constitutional and statutory challenges to thetreatment he received while in a regimen of SIST are not properly before us inasmuch asthey are not preserved for our review (see Matter of State of New York v Gooding, 104 AD3d1282, 1282-1283 [2013]). In any event, "there is no evidence that . . .petitioner . . . failed to fulfill its treatment responsibilities or violatedrespondent's due process rights" (id. at 1283).
Contrary to respondent's contention, we conclude that petitioner established by clearand convincing evidence at the hearing that respondent is a dangerous sex offenderrequiring confinement (see Mental Hygiene Law §§ 10.07 [f]; 10.11[d] [4]; Matter of State of NewYork v Motzer, 79 AD3d 1687, 1688 [2010]). Finally, we reject respondent'sfurther contention that "petitioner was required to 'refute the possibility of a lessrestrictive placement' or that the court was required to specifically address the issue of aless restrictive alternative" (Gooding, 104 AD3d at [*2]1282; see Matter of State of New York v Enrique T., 93 AD3d158, 166-167 [2012], lv dismissed 18 NY3d 976 [2012]).Present—Smith, J.P., Peradotto, Carni and Lindley, JJ.