| Matter of State of New York v Kenneth W. |
| 2015 NY Slip Op 06955 [131 AD3d 872] |
| September 29, 2015 |
| Appellate Division, First Department |
[*1](September 29, 2015)
| In the Matter of State of New York,Respondent, v Kenneth W., Appellant. |
Marvin Bernstein, Mental Hygiene Legal Service, New York (Margo Flug ofcounsel), for appellant.
Eric T. Schneiderman, Attorney General, New York (Valerie Figueredo of counsel),for respondent.
Order, Supreme Court, New York County (Daniel McCullough, J.), entered on orabout January 28, 2014, which, upon a jury verdict that respondent suffers from a mentalabnormality, determined, after a dispositional hearing, that he is a dangerous sex offenderrequiring confinement in a secure treatment facility, unanimously reversed, on the law,without costs, and the petition dismissed.
The verdict that respondent suffers from a mental abnormality is based on legallyinsufficient evidence. Evidence of an independent mental abnormality diagnosis isrequired to establish a mental abnormality within the meaning of Mental Hygiene Lawarticle 10 (see Matter of State ofNew York v Donald DD., 24 NY3d 174, 190-191 [2014]). Here, we find thatbased on the trial evidence, a rational factfinder could not conclude that sexualpreoccupation is an independent mental abnormality. The State failed to present evidencethat sexual preoccupation is a condition that predisposes one to commit a sex offense andresults in serious difficulty in controlling the sexually offending conduct (see Matter of State of New York vGen C., 128 AD3d 467 [1st Dept 2015]; Mental Hygiene Law§ 10.03 [i]). Concur—Gonzalez, P.J., Sweeny, Renwick, Saxe andFeinman, JJ.