| Matter of Sincere KK. v State of New York |
| 2013 NY Slip Op 07782 [111 AD3d 1083] |
| November 21, 2013 |
| Appellate Division, Third Department |
| In the Matter of Sincere KK., Appellant, v State of NewYork, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Treasure of counsel),for respondent.
Stein, J. Appeal from an order of the Supreme Court (Demarest, J.), entered July 3,2012 in St. Lawrence County, which dismissed petitioner's application, in a proceedingpursuant to Mental Hygiene Law article 10, for his discharge from confinement at asecure treatment facility.
In 1984, petitioner was convicted of, among other things, sodomy in the first degreeafter he sexually assaulted two brothers, who were 11 and 14 years old.[FN1]Petitioner was subsequently diagnosed with pedophilia and antisocial personalitydisorder with psychopathic features and, in 2011, was civilly confined to a securetreatment facility after he was determined to be a dangerous sex offender (seeMental Hygiene Law § 10.01 et seq.). The following year, petitionerexercised his right to petition the court for discharge (see Mental Hygiene Law§ 10.09 [a]). As a result, Timothy Wisniewski, a psychiatric examiner for theOffice of Mental Health, completed a psychiatric evaluation of petitioner and prepared areport of his findings (see Mental Hygiene Law § 10.09 [b]), in which heconcluded that petitioner remains a dangerous sex offender requiring civil confinement.Following an evidentiary hearing (see Mental Hygiene [*2]Law § 10.09 [d]), at which both Wisniewski andpetitioner testified, Supreme Court determined that petitioner was a dangerous sexoffender with a continued need for confinement in a secure treatment facility.[FN2]Upon petitioner's appeal from that determination, we now affirm.
We reject petitioner's contention that respondent failed to meet its burden ofestablishing by clear and convincing evidence that he continues to be a dangerous sexoffender requiring civil confinement (see Mental Hygiene Law § 10.09[d], [h]; Matter of Skinner vState of New York, 108 AD3d 1134, 1135 [2013]; Matter of State of New York vTreat, 100 AD3d 1513, 1513 [2012], lv denied sub nom. Matter of State ofNew York v Edward T., 20 NY3d 861 [2013]). A dangerous sex offender requiringconfinement is defined as "a person who is a detained sex offender suffering from amental abnormality involving such a strong predisposition to commit sex offenses, andsuch an inability to control behavior, that the person is likely to be a danger to others andto commit sex offenses if not confined to a secure treatment facility" (Mental HygieneLaw § 10.03 [e]). Wisniewski testified that he reviewed all records retained by theOffice of Mental Health pertaining to petitioner—including, but not limited to,case review team records and summary notes, parole report records, police reports and aprior mental abnormality evaluation—and conducted an examination of petitioner(see Mental Hygiene Law § 10.09 [b]). Wisniewski diagnosed petitionerwith pedophilia (sexually attracted to males, non-exclusive type), as well as antisocialpersonality disorder and psychopathy. He testified that petitioner's score of six on theSTATIC-99R, a static risk assessment instrument, indicates a high risk for sexualrecidivism. Wisniewski also considered various dynamic risk factors pertaining topetitioner[FN3]and opined that they indicated "an even higher risk than that established by his staticfactors alone." Wisniewski concluded that "[t]he combination of sexual deviancy andpsychopathy makes [petitioner] an exceptionally dangerous individual with a very highrisk of reoffending both violently and sexually."
Wisniewski also explained the four phases of sex offender treatment offered at thefacility where petitioner is confined (see generally Matter of Charles A. v State of New York, 101AD3d 1535, 1537 [2012]) and noted that petitioner has not progressed past phaseone—which Wisniewski described as the "introduction" totreatment—primarily because petitioner wavered with respect to admitting to hiscrimes and the fact that he is a sexual offender, and because of petitioner's "chaotic"behavior while confined.[FN4]Additionally, it was noted that petitioner's behaviors had "slowed his progress throughthe program, and, consequently, he is still only in the earliest stages of treatment."According to Wisniewski, petitioner stated several times [*3]that he did not want to progress to phase two. Petitioner'sinability to progress prevented him from receiving treatment aimed at helping him toidentify triggers with respect to sexually offending and from identifying a relapseprevention plan in the event that he were released into strict and intensive supervisionand treatment (hereinafter SIST) in the community.
Contrary to petitioner's claim, Supreme Court was not required to consider theconditions that would be imposed upon petitioner if he was subject to SIST(compare Mental Hygiene Law § 10.07 [f] with Mental HygieneLaw § 10.09). Rather, in this proceeding, Supreme Court was only required todetermine whether petitioner is currently a dangerous sex offender requiring confinement(see Mental Hygiene Law § 10.09). To that end, Wisniewski ultimatelyconcluded that petitioner's "skills are not yet developed enough to step-down tocommunity-based supervision and treatment, more specifically, SIST" and that hisrelease into the community "poses an undue risk to society." Consequently, Wisniewskidetermined that petitioner "remains a dangerous sex offender requiring civilconfinement." While petitioner argues that continued civil confinement isunnecessary—relying on the fact that the instant offense occurred approximately30 years ago, as well as the fact that he has not committed any new sexoffenses—petitioner offered no expert proof to rebut Wisniewski's conclusions. Tothe extent that petitioner disputed certain factual portions of Wisniewski's testimony,Supreme Court was free to credit Wisniewski's testimony over his. Accordingappropriate deference to Supreme Court's superior position to evaluate the weight of theexpert's opinion and credibility determinations (see Matter of Charles A. v State ofNew York, 101 AD3d at 1538; Matter of State of New York v Timothy EE., 97 AD3d996, 998 [2012]), and upon our careful review of the record, we discern no basis todisturb Supreme Court's determination that respondent met its burden of demonstratingthat petitioner continued to be a dangerous sex offender requiring confinement.
To the extent not specifically addressed herein, petitioner's remaining contentionshave been considered and found to be without merit.
Lahtinen, J.P., Spain and Egan Jr., JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: The record also reflectsprior incidents in which petitioner orally and anally sodomized seven children betweenthe ages of 8 and 14, and raped an adult female victim.
Footnote 2: Petitioner was alsoexamined by an independent psychiatric examiner appointed by Supreme Court(see Mental Hygiene Law § 10.09 [b]). However, petitioner elected not tocall that examiner as a witness at the hearing and his report was not admitted intoevidence.
Footnote 3: These factors included,among other things, negative emotionality, hostility towards women, lack of concern forother people, sexual deviation, emotional identification with children and poor problemsolving skills.
Footnote 4: The record reflects thatpetitioner routinely threatened the lives of the staff and their families, was physicallyabusive to the staff and peers, sexually harassed the female staff and was manipulative tostaff.