| Matter of State of New York v David M. |
| 2014 NY Slip Op 06321 [120 AD3d 1423] |
| September 24, 2014 |
| Appellate Division, Second Department |
[*1]
| In the Matter of State of New York,Respondent, v David M., Appellant. |
Mental Hygiene Legal Service, Mineola, N.Y. (Michael D. Neville, Timothy M.Riselvato, and Dennis B. Feld of counsel; Ross Steel on the brief), for appellant.
Eric T. Schneiderman, Attorney General, New York, N.Y. (Steven C. Wu andBethany Davis Noll of counsel), for respondent.
In a proceeding pursuant to Mental Hygiene Law article 10 for the civil managementof David M., an alleged sex offender requiring civil management, David M., appealsfrom an order of the Supreme Court, Nassau County (Calabrese, J.), dated May 2, 2013,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,made after a dispositional hearing, that he is currently a dangerous sex offender requiringcivil confinement, in effect, granted the petition and directed that he be committed to asecure treatment facility for care, treatment, and control until such time as he no longerrequires confinement.
Ordered that the order is affirmed, without costs or disbursements.
In 2004, the appellant was convicted, upon his plea of guilty, of sexual abuse in thefirst degree, based upon an incident in which he allegedly forced a female victim into hiscar at gunpoint and drove her to his home, where they had vaginal and anal intercoursewithout her consent. The incident took place one month and 11 days after the appellantwas released to parole supervision upon serving a portion of a sentence imposed for aprior conviction of sexual abuse in the first degree.
In March 2009, the State commenced this proceeding under article 10 of the MentalHygiene Law, alleging that the appellant was a sex offender requiring civil management.After a trial, the jury found that the appellant suffered from a mental abnormality thatpredisposed him to commit sex offenses and caused him to have serious difficultycontrolling his criminal sexual conduct. Subsequently, following a dispositional hearing,the Supreme Court determined that the appellant was a dangerous sex offender requiringcivil confinement, and committed him to a secure treatment facility for care, treatment,and control.
A court may set aside a jury verdict as legally insufficient and enter judgment as amatter of law only when, considering the evidence in the light most favorable to thepetitioner, "there [*2]is simply no valid line of reasoningand permissible inferences which could possibly lead rational [persons] to the conclusionreached by the jury on the basis of the evidence presented at trial" (Bassett v City of Rye, 104AD3d 889, 890 [2013] [internal quotation marks omitted]; see Matter of State of New York vJohn S., 23 NY3d 326 [2014]). "[A] jury verdict may be set aside as against theweight of the evidence only when the evidence preponderates so greatly in the movant'sfavor that the jury could not have reached its conclusion on any fair interpretation of theevidence" (Matter of State ofNew York v Andre L., 84 AD3d 1248, 1249-1250 [2011] [internal quotationmarks omitted]; see Matter ofState of New York v Edison G., 107 AD3d 723, 724 [2013]; Matter of State of New York vDerrick B., 68 AD3d 1124, 1126 [2009]).
Here, the evidence at trial was legally sufficient to support the verdict, since therewas a valid line of reasoning by which the jury could conclude that the appellant sufferedfrom a mental abnormality, and the jury's verdict was supported by a fair interpretation ofthe evidence (see Mental Hygiene Law § 10.03 [i]; Matter of State of New York vJohn S., 23 NY3d 326 [2014]; Matter of State of New York v DerrickB., 68 AD3d at 1126; seealso Matter of State of New York v Leon F., 84 AD3d 1098, 1100-1101[2011]). Contrary to the appellant's contention, the question of whether the diagnosis of"Paraphilia Disorder-Not Otherwise Specified Nonconsent" constituted a reliablepredicate for a finding of mental abnormality presented a factual issue to be resolved bythe jury, and there is no basis to disturb its findings (see Matter of State of New York v Shannon S., 20 NY3d99, 106-107 [2012]; Matterof State of New York v Raul L., 120 AD3d 52 [2014]; Matter of State of New York vRobert V., 111 AD3d 541, 542 [2013]).
The appellant's challenge to certain comments made by the assistant attorney generalduring his opening statement and summation is unpreserved for appellate review (see Matter of State of New York vColvin M., 110 AD3d 818, 818 [2013]; Burke v Carrion, 101 AD3d 920, 922 [2012]; People v Scott, 99 AD3d817, 817 [2012]), and, in any event, is without merit (see Matter of State of New York vCarmelo M., 110 AD3d 818, 819 [2013]).
Moreover, the Supreme Court properly found, after the dispositional hearing, byclear and convincing evidence, that the appellant's level of dangerousness requires thathe be confined rather than be subject to strict and intense supervision (see MentalHygiene Law § 10.07 [f]; Matter of State of New York v Edison G.,107 AD3d at 724; Matter of State of New York v Leon F., 84 AD3d at 1101;Matter of State of New York v Derrick B., 68 AD3d at 1127).
The appellant's remaining contention is without merit. Balkin, J.P., Leventhal,Maltese and Barros, JJ., concur.