| Matter of State of New York v Parrott |
| 2015 NY Slip Op 01120 [125 AD3d 1438] |
| February 6, 2015 |
| Appellate Division, Fourth Department |
[*1]
| In the Matter of State of New York, Respondent, vJames Parrott, Appellant. |
Davison Law Office, PLLC, Canandaigua (Mark C. Davison of counsel), forrespondent-appellant.
Eric T. Schneiderman, Attorney General, Albany (Allyson B. Levine of counsel), forpetitioner-respondent.
Appeal from an order of the Supreme Court, Oswego County (Norman W. Seiter, Jr.,J.), entered March 29, 2013 in a proceeding pursuant to Mental Hygiene Law article 10.The order, among other things, adjudged that respondent is a dangerous sex offenderrequiring confinement.
It is hereby ordered that the order so appealed from is unanimously affirmed withoutcosts.
Memorandum: Respondent appeals from an order pursuant to Mental Hygiene Lawarticle 10 determining, following a nonjury trial, that he is a dangerous sex offender(see § 10.03 [e]) and committing him to a secure treatment facility.We affirm. We reject respondent's contention that the use of hearsay by petitioner'sexperts denied him due process. Although Supreme Court erred in admitting certain basishearsay evidence, i.e., evidence regarding victim statements about offenses for whichrespondent was not charged (seeMatter of State of New York v Charada T., 23 NY3d 355, 361-362 [2014]), thecourt in this nonjury trial is " 'presumed to be able to distinguish betweenadmissible evidence and inadmissible evidence . . . and to render adetermination based on the former' " (Matter of State of New York v Mark S., 87 AD3d 73, 80[2011], lv denied 17 NY3d 714 [2011]). Moreover, there is " 'noreasonable possibility' " that, had the testimony been excluded, the court wouldhave reached a different determination (Charada T., 23 NY3d at 362).
We reject respondent's further contention that the evidence is not legally sufficient toestablish that he requires confinement. Petitioner's proof consisted of the reports andtestimony of two psychologists who evaluated respondent. They opined that respondentsuffers from pedophilia, antisocial personality disorder and psychopathy, and that as aresult of those mental abnormalities respondent has serious difficulty controlling hispredisposition to sexually offend against children such that confinement is necessary.Upon our review of the record, we conclude that the experts' reports and testimonyestablished by the requisite clear and convincing evidence that respondent "has a mentalabnormality involving such a strong predisposition to commit sex offenses, and such aninability to control behavior, that [he] is likely to be a danger to others and to commit sexoffenses if not confined to a secure treatment facility" (Mental Hygiene Law§ 10.07 [f]; see Matter of State of New York v Bass, 119 AD3d1356, 1357 [2014]). To the extent respondent contends that the determination is againstthe weight of the evidence, we reject that contention (see Matter of State of New York v Kennedy, 121 AD3d1601, 1601 [2014]). The court was "in the best position to evaluate the weight andcredibility of the conflicting [expert] testimony presented" (Matter of State of New York vTimothy JJ., 70 AD3d 1138, 1144 [2010]), and we see no reason to disturb thecourt's decision to credit the testimony of petitioner's experts (see Kennedy, 121AD3d at 1601).
We also reject respondent's contention that his due process rights are violated by[*2]confinement because his expert testified that theimposition of a regimen of strict and intensive supervision treatment is the leastrestrictive alternative; there is no requirement that the court address the least restrictivealternative (see Bass, 119 AD3d at 1357-1358; Matter of State of New York vGooding, 104 AD3d 1282, 1282 [2013], lv denied 21 NY3d 862 [2013];see generally Matter of State of New York v Michael M., 24 NY3d 649 [2014]). We reject respondent's further contention that he was deniedeffective assistance of counsel, which is premised upon his claim that he should not haveadmitted that he had a mental abnormality without some concession by petitioner. Weconclude that respondent would not have succeeded if he disputed that issue, and arespondent "is not denied effective assistance of trial counsel merely because counsel[did] not make . . . an argument that ha[d] little or no chance of success" (People v Stultz, 2 NY3d277, 287 [2004], rearg denied 3 NY3d 702 [2004]). Viewing the evidence,the law, and the circumstances of this case as a whole and at the time of therepresentation, we conclude that respondent received effective assistance of counsel(see generally People v Baldi, 54 NY2d 137, 147 [1981]; Matter of State of New York vCampany, 77 AD3d 92, 100 [2010], lv denied 15 NY3d 713 [2010]).Present—Smith, J.P., Fahey, Whalen and DeJoseph, JJ.