| Matter of State of New York v Breeden |
| 2016 NY Slip Op 04546 [140 AD3d 1649] |
| June 10, 2016 |
| Appellate Division, Fourth Department |
[*1]
| In the Matter of State of New York, Respondent, vEdward Breeden, Appellant. |
Emmett J. Creahan, Director, Mental Hygiene Legal Service, Utica (Patrick T.Chamberlain of counsel), for respondent-appellant.
Eric T. Schneiderman, Attorney General, Albany (Frank Brady of counsel), forpetitioner-respondent.
Appeal from an order of the Supreme Court, Oneida County (Samuel D. Hester, J.),entered November 18, 2014 in a proceeding pursuant to Mental Hygiene Law article 10.The order, among other things, committed respondent to a secure treatment facility.
It is hereby ordered that the order so appealed from is unanimously affirmed withoutcosts.
Memorandum: Respondent appeals from an order revoking his prior regimen of strictand intensive supervision and treatment (SIST), determining that he is a dangerous sexoffender requiring confinement, and committing him to a secure treatment facility(see Mental Hygiene Law § 10.01 et seq.).
We reject respondent's contention that Supreme Court erred in ruling that thequestion whether respondent suffers from a mental abnormality is not at issue in a SISTrevocation hearing. In a SIST revocation hearing, like in a dispositional hearingfollowing trial on the issue of mental abnormality, the statute gives the court only twodispositional choices—to order civil confinement or to continue a regimen ofSIST (compare Mental Hygiene Law §§ 10.07 [f] with10.11 [d] [4]), both of which assume that respondent has a mental abnormality. The onlyissue before the court, therefore, is whether the mental abnormality is such thatrespondent requires confinement (§ 10.11 [d] [4]; see generally Matter of State ofNew York v Michael M., 24 NY3d 649, 658-659 [2014]). In light of thatstatutory structure, we see no need to address respondent's contentions that the evidenceof mental abnormality was insufficient.
We reject respondent's further contention that the evidence is insufficient to supporta finding that respondent has "such an inability to control behavior" that he "is likely tobe a danger to others and to commit sex offenses if not confined to a secure treatmentfacility" (Mental Hygiene Law § 10.07 [f]). At the SIST revocation hearing,respondent's parole officer testified that respondent admitted that he gave an 18-year-oldwoman a ride in his car in violation of his SIST conditions, ordered her to remove herpants, yelled at her, touched her leg without permission, and did so intending to scareher. Further, petitioner offered the testimony of an expert psychologist, who opined thatrespondent was a dangerous sex offender requiring confinement. Petitioner's experttestified that, in forming her opinion, she reviewed reports detailing respondent'snumerous SIST violations, including the 18-year-old victim's statement, which containedallegations that were sexual in nature. Further, petitioner's expert testified that sheconsidered respondent's STATIC-99 scores showing a "moderate-to-high" risk ofrecidivism, and she described the documented failure of respondent's relapse preventionplan, his initial refusal to engage in sex offender treatment while incarcerated, and hiseventual failed evaluations in and subsequent removal from sex offender treatment. Uponour review of the record, particularly the uncontradicted testimony of petitioner's expert,we conclude that petitioner [*2]established by clear andconvincing evidence that respondent is a dangerous sex offender requiring confinement(see Matter of State of NewYork v DeCapua, 121 AD3d 1599, 1600 [2014], lv denied 24 NY3d 913[2015]; see generally Matter ofState of New York v Robert F., 25 NY3d 448, 454-455 [2015]).
We reject respondent's contention that the admission of certain hearsay statementsinto evidence denied him due process. Although the court erred in admitting certainhearsay evidence, i.e., victim statements about alleged inappropriate sexual behavior, thecourt "is presumed to be able to distinguish between admissible evidence andinadmissible evidence . . . and to render a determination based on theformer" (Matter of State of NewYork v Parrott, 125 AD3d 1438, 1439 [2015] [internal quotation marksomitted], lv denied 25 NY3d 911 [2015]; see Matter of State of New York v Mark S., 87 AD3d 73,80 [2011], lv denied 17 NY3d 714 [2011]). Moreover, we conclude that there is" 'no reasonable possibility' " that, had the statements been excluded, thecourt would have reached a different determination (Matter of State of New York v Charada T., 23 NY3d 355,362 [2014]; see Parrott, 125 AD3d at 1439).
Finally, respondent contends that the court erred in allowing petitioner to prosecuteSIST violations that occurred approximately three years earlier. That contention is raisedfor the first time on appeal and thus is not properly before us (see Ciesinski v Townof Aurora, 202 AD2d 984, 985 [1994]). Present—Peradotto, J.P., Carni,Lindley, Curran and Troutman, JJ.