| Matter of State of New York v Robert V. |
| 2013 NY Slip Op 07806 [111 AD3d 541] |
| November 21, 2013 |
| Appellate Division, First Department |
| In the Matter of State of New York,Respondent, v Robert V., Appellant. |
—[*1] Eric T. Schneiderman, Attorney General, New York (Andrew W. Amend ofcounsel), for respondent.
Order, Supreme Court, Bronx County (Colleen D. Duffy, J.), entered on or aboutSeptember 25, 2012, which, upon a jury verdict finding that respondent is a detained sexoffender who has committed a designated felony that was "sexually motivated" withinthe meaning of Mental Hygiene Law § 10.03 (g) (4), and that respondent suffersfrom a "mental abnormality," determined that respondent is a dangerous sex offenderrequiring confinement, unanimously affirmed, without costs.
The jury's verdict that respondent committed a "designated felony" that was "sexuallymotivated" was not against the weight of the evidence (see People v Danielson, 9NY3d 342, 348 [2007]; Rose v Conte, 107 AD3d 481, 483 [1st Dept 2013]).Expert testimony and respondent's own testimony constituted clear and convincingevidence that the acts constituting respondent's 1994 offenses of two counts offirst-degree robbery and one count of attempted first-degree robbery were "committed inwhole or in substantial part for the purpose of [respondent's] direct sexual gratification"(Mental Hygiene Law § 10.03 [s]). Among other things, it is undisputed that whencommitting first-degree robbery in July 1994, respondent confronted a 14-year-old girl inan elevator with a knife, and forced her to expose her breasts and perform oral sex onhim.
The jury's verdict that respondent suffers from a mental abnormality (seeMental Hygiene Law § 10.03 [i]) was not against the weight of the evidence. Theexpert testimony offered by the State at the trial constituted clear and convincingevidence that respondent suffers from a condition known as "paraphilia NOSnonconsent" and antisocial personality disorder, which "affects [his] emotional,cognitive, or volitional capacity . . . in a manner that predisposes him. . . to the commission of conduct constituting a sex offense and that resultsin [respondent] having serious difficulty in controlling such conduct" (Mental HygieneLaw § 10.03 [i]; seeMatter of State of New York v Shannon S., 20 NY3d 99, 106-107 [2012],cert denied 568 US —, 133 S Ct 1500 [2013]; Matter of State of New York vWilliam W., 103 AD3d 521 [1st Dept 2013], appeal dismissed 21 NY3d931 [2013]). Issues raised by respondent's expert over the viability and reliability ofrespondent's diagnosis were properly reserved for resolution by the jury, and we find nobasis to disturb its findings (see Shannon S., 20 NY3d at 107). Contrary torespondent's contentions, a mental abnormality "need not necessarily be one so identifiedin the DSM[*2][Diagnostic and Statistical Manual ofMental Disorders] in order to meet the statutory requirement" (id. at 106, quotingUnited States v Carta, 592 F3d 34, 40 [1st Cir 2010]). Furthermore, the absenceof proof that respondent committed any sexual offenses while he was incarcerated "neednot be treated as negating or disproving the diagnosis" (William W., 103 AD3dat 521), as the jury was entitled to credit the State's expert's opinion that respondent hadlimited access to a "victim pool" of young, vulnerable females and the conditions thatwere consistently present when respondent committed his prior sexual offenses.Moreover, it is undisputed that respondent failed to complete a sex offender programduring the eighteen years in which he has been imprisoned or confined to a mental healthinstitution, and respondent's own expert acknowledged that respondent was generallyevasive, vague and, in many cases, untruthful when discussing his prior sex offenses. Inaddition, the records of his most recent treatment showed that he was "difficult with thestaff" and "verbally aggressive." Finally, the State's expert's diagnosis was supported byrespondent's own trial testimony in which he admitted to committing the acts constitutingnumerous sexual offenses in 1991 and 1994, at least three of which were committedagainst minors as young as nine years old.
We have considered respondent's remaining contentions and find them unavailing.Concur—Gonzalez, P.J., Tom, Renwick, Freedman and Clark, JJ.