| Matter of State of New York v Nervina |
| 2014 NY Slip Op 05728 [120 AD3d 941] |
| August 8, 2014 |
| Appellate Division, Fourth Department |
[*1]
| In the Matter of State of New York, Respondent, vAnthony Nervina, Appellant. (Appeal No. 1.) |
Davison Law Office, PLLC, Canandaigua (Mark C. Davison of counsel), forrespondent-appellant.
Eric T. Schneiderman, Attorney General, Albany (Jonathan D. Hitsous of counsel),for petitioner-respondent.
Appeal from an order of the Supreme Court, Orleans County (James P. Punch, A.J.),entered July 17, 2012 in a proceeding pursuant to Mental Hygiene Law article 10. Theorder, among other things, determined that respondent is a detained sex offenderrequiring civil management.
It is hereby ordered that the order so appealed from is unanimously affirmed withoutcosts.
Memorandum: In appeal No. 1, respondent appeals from an order determining thathe is a dangerous sex offender requiring civil management pursuant to Mental HygieneLaw article 10. The jury found that respondent was sexually motivated in committing thecrime of attempted burglary in the second degree and that he suffers from a mentalabnormality (see § 10.03 [i]; see also Penal Law§ 140.25 [2]). In appeal No. 2, respondent appeals from an order revokinghis prior regimen of strict and intensive supervision and treatment (SIST), determiningthat he is a dangerous sex offender requiring confinement, and committing him to asecure treatment facility. We affirm in both appeals.
With respect to appeal No. 1, we note that the court declined to rule on that part ofrespondent's pretrial motion to preclude hearsay evidence and expressly directedrespondent to raise appropriate objections at the time of trial, which respondent failed todo. This case is therefore distinguishable from Matter of State of New York vBass (119 AD3d 1356 [2014]), in which the respondent's hearsay contention waspreserved because the court expressly denied the respondent's motion in limine topreclude evidence on that ground. We therefore conclude that respondent's contentionthat his due process rights were violated when petitioner's experts provided testimonyabout the hearsay evidence that formed the basis of their opinions is unpreserved for ourreview (see Matter of State of New York v Wilkes [appeal No. 2], 77 AD3d1451, 1452 [2010]), and we decline to exercise our power to review that contention inthe interest of justice (see Matterof State of New York v Muench, 85 AD3d 1581, 1582 [2011]). Contrary torespondent's contention, the recent decision from the Court of Appeals in People vFinch (23 NY3d 408 [2014]) does not supporthis position that, because he objected to hearsay presented at the subsequent SISTviolation hearing, he preserved his contention regarding hearsay presented at theprevious jury trial. The Court of Appeals held in Finch that "a lawyer is notrequired, in order to preserve a point, to repeat an argument that the court hasdefinitively rejected" (id. at 413 [emphasisadded]). The Court did not hold that an attorney's objection at a later proceedingpreserves for appellate review an alleged error in an earlier proceeding.
We reject respondent's further contention in appeal No. 1 that the jury'sdetermination that the underlying crime was sexually motivated is against the weight ofthe evidence (see [*2]Matter of State of New York v Trombley, 98 AD3d1300, 1301 [2012], lv denied 20 NY3d 856 [2013]). To the extent thatrespondent contends that the evidence was legally insufficient to establish sexualmotivation, we also reject that contention. Petitioner's evidence presented a valid line ofreasoning and permissible inferences that could lead a rational jury to the conclusion thatrespondent committed the underlying offense "in whole or in substantial part for thepurpose of [his] direct sexual gratification" (Mental Hygiene Law § 10.03[s]; see Matter of State of NewYork v Farnsworth, 107 AD3d 1444, 1445 [2013]).
We reject respondent's further contention in appeal No. 1 that the jury's verdict withrespect to mental abnormality is against the weight of the evidence. Althoughrespondent's expert witness testified that respondent did not suffer from a mentalabnormality, the jury's verdict is entitled to deference, and we conclude that "theevidence does not preponderate[ ] so greatly in [respondent's] favor that the jury couldnot have reached its conclusion on any fair interpretation of the evidence" (Matter of State of New York vGierszewski, 81 AD3d 1473, 1474 [2011], lv denied 17 NY3d 702[2011] [internal quotation marks omitted]). Respondent's further contention in appealNo. 1 that the personality disorders with which petitioner's expert witnesses diagnosedhim cannot serve as the basis for a finding of mental abnormality is without merit (see Matter of State of New York vDonald DD., 107 AD3d 1062, 1063-1064 [2013], lv granted 21 NY3d866 [2013]). The Mental Hygiene Law does not require that the underlying "condition,disease, or disorder" serving as the basis for a finding of mental abnormality have asexual component to its diagnosis; rather, the law requires only that the underlying"condition, disease or disorder" affect respondent "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"(§ 10.03 [i]). Here, both of petitioner's expert witnesses testified that thepersonality disorders with which they diagnosed respondent predisposed him to commitsex offenses and resulted in respondent's serious difficulty in controlling hisbehavior.
Contrary to respondent's contention in appeal No. 2, we conclude that, at the hearingregarding respondent's alleged violation of his SIST conditions, petitioner established byclear and convincing evidence that respondent is a dangerous sex offender requiringconfinement (see Mental Hygiene Law §§ 10.03 [e]; 10.07[f]). Finally, we reject respondent's further contention in appeal No. 2 that "the court wasrequired to specifically address the issue of a less restrictive alternative" (Matter of State of New York vGooding, 104 AD3d 1282, 1282 [2013], lv denied 21 NY3d 862[2013]). Present—Centra, J.P., Fahey, Peradotto, Sconiers and DeJoseph, JJ.