| Matter of State of New York v Larry B. |
| 2014 NY Slip Op 00516 [113 AD3d 865] |
| January 29, 2014 |
| Appellate Division, Second Department |
| In the Matter of State of New York,Respondent, v Larry B., Appellant. |
—[*1] Eric T. Schneiderman, Attorney General, New York, N.Y. (Cecelia C. Chang andMark H. Shawhan of counsel), for respondent.
In a proceeding pursuant to Mental Hygiene Law article 10 for the civil managementof Larry B., a sex offender allegedly requiring civil management, Larry B. appeals froman order of the Supreme Court, Kings County (Garnett, J.), dated October 5, 2012,which, upon a finding, made after a jury trial, that he suffers from a mental abnormalityas defined in Mental Hygiene Law § 10.03 (i), and upon a determination, madeafter a dispositional hearing, that he is a dangerous sex offender requiring civilconfinement, in effect, granted the petition and directed that he be committed to a securetreatment facility for care, treatment, and control until such time as he no longer requiresconfinement.
Ordered that the order is affirmed, without costs or disbursements.
Prior to his release from prison, where he was incarcerated for, inter alia, attemptedsodomy in the first degree and sexual abuse in the first degree of a seven-year-old girl,the State of New York commenced this proceeding pursuant to Mental Hygiene Lawarticle 10 seeking civil management of the appellant. Following a jury trial, the juryfound that the appellant suffered from a mental abnormality within the meaning ofMental Hygiene Law § 10.03 (i). In addition, after a dispositional hearing, theSupreme Court determined that the appellant is a dangerous sex offender requiring civilconfinement, rather than strict and intensive supervision and treatment (hereinafterSIST), and committed him to a secure treatment facility for care, treatment, and controluntil such time as he no longer requires confinement.
Although the expert testimony presented by the appellant conflicted with the experttestimony presented by the State, the jury's verdict finding that the appellant sufferedfrom a mental abnormality predisposing him to commit sex offenses and causing him tohave serious difficulty controlling his criminal sexual conduct within the meaning ofMental Hygiene Law § 10.03 (i) was supported by a fair interpretation of theevidence (see Matter of State ofNew York v Edison G., 107 AD3d 723, 724 [2013]; Matter of State of New York vAndre L., 84 AD3d 1248, 1250 [2011]; Matter of State of New York v Timothy JJ., 70 AD3d1138, 1142 [2010]; Matterof State of New York v Shawn X., 69 AD3d 165, 169 [2009]; Matter of State of New York vDerrick B., 68 AD3d 1124, 1126 [2009]).[*2]
Furthermore, the Supreme Court properly found,after the dispositional hearing, by clear and convincing evidence, that the appellant'slevel of dangerousness requires confinement rather than SIST (see MentalHygiene Law § 10.07 [f]; Matter of William II. v State of New York, 110 AD3d1282, 1283 [2013]; Matterof State of New York v Lonard ZZ., 100 AD3d 1279, 1281 [2012]; Matter of State of New York vClarence D., 82 AD3d 776, 778 [2011]). Contrary to the appellant's contention,the fact that he was not arrested for any sex-related crimes during the approximately 15months he was out on parole is not dispositive (see Matter of State of New York v Jason H., 82 AD3d 778,780 [2011]; Matter of State ofNew York v Donald N., 63 AD3d 1391, 1394 [2009]). The Supreme Court'sdetermination to credit the testimony of the State's expert witness instead of thetestimony of the appellant's expert witness is supported by the record, and thus, we findno basis to disturb it (see Matterof State of New York v Richard VV., 74 AD3d 1402, 1404 [2010]; Matter of State of New York vR.W., 99 AD3d 1010, 1011 [2012]; Matter of State of New York v Andrew J.W., 85 AD3d805, 807 [2011]).
The appellant's remaining contention, that the Supreme Court committed reversibleerror in its handling of a jury note, is unpreserved for appellate review and, in any event,without merit. Dillon, J.P., Leventhal, Hall and Austin, JJ., concur.