| Matter of William II. v State of New York |
| 2013 NY Slip Op 06906 [110 AD3d 1282] |
| October 24, 2013 |
| Appellate Division, Third Department |
| In the Matter of William II., Appellant, v State of NewYork, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Treasure of counsel),for respondent.
Lahtinen, J.P. Appeal from an order of the Supreme Court (Demarest, J.), enteredJune 14, 2012 in St. Lawrence County, which dismissed petitioner's application, in aproceeding pursuant to Mental Hygiene Law article 10, for his discharge and/or releaseto the community under a regimen of strict and intensive supervision and treatment.
Petitioner, who had a history of sex-related as well as other criminal conduct, wasconvicted in 2000 of two counts of sexual abuse in the first degree and sentenced toconsecutive terms of five years in prison. The underlying acts occurred during a timewhen he resided in a nursing home while recovering from surgery and involved repeatedinstances on separate days of fondling the breasts and touching the genitals of variousdisabled female patients. As his release from prison approached, a proceeding wascommenced under Mental Hygiene Law article 10 and he was found, after trial in 2009,to be a dangerous sex offender requiring confinement. Upon receiving his annualnotification of the right to petition for discharge, petitioner commenced this proceedingin January 2012 seeking discharge. Following a retention hearing, Supreme Court foundthat petitioner remained a dangerous sex offender requiring confinement. Petitionerappeals.
Petitioner asserts that the proof was insufficient to establish that he is a dangeroussex offender who should be confined. A civilly-confined sex offender is entitled toannual judicial [*2]review at which respondent has theburden of proving by clear and convincing evidence that such individual remains adangerous sex offender requiring confinement (see Mental Hygiene Law §10.09 [a], [d], [h]; Matter ofState of New York v Treat, 100 AD3d 1513, 1513 [2012], lv denied subnom. State of New York v Edward T., 20 NY3d 861 [2013]). Expert testimony istypically presented by respondent and, since the trier of fact is in the best position toevaluate the weight and credibility of the expert testimony, we accord deference to itsdetermination regarding such proof (see Matter of State of New York v Kenneth BB., 93 AD3d900, 902 [2012]; Matter ofState of New York v Donald N., 63 AD3d 1391, 1394 [2009]; see alsoMatter of George L., 85 NY2d 295, 305 [1995]).
Here, Trica Peterson, who conducted a psychiatric evaluation of petitioner inDecember 2011, testified and opined that he remains a dangerous sex offender requiringconfinement. Her opinion was amply supported by her testimony, her report and therecords pertaining to petitioner. Among other things, she noted his antisocial personalitydisorder, lack of remorse, deceitfulness, noncompliance with rules and supervision, useof sex to cope with negative emotions, including anger, callousness and disregard ofothers, failure to take responsibility for prior sexual assaults, and refusal to participate intreatment. She acknowledged his advanced age (then 70 years old), onset of dementiaand confinement to a wheelchair. Although she related that he was a likely candidate forresidence in a nursing home given these conditions, she also observed that the sexualassaults that resulted in his most recent incarceration occurred when he was confined to awheelchair while in a nursing home. Cross-examination revealed some weaknesses inPeterson's testimony, but her testimony, if credited, was sufficient to establish petitioneras a dangerous sex offender in need of confinement. Supreme Court credited Peterson'stestimony and we find no reason in this record not to accept that credibilitydetermination. No other witness testified at the hearing.
Stein, McCarthy and Egan Jr., JJ., concur. Ordered that the order is affirmed, withoutcosts.