| Matter of State of New York v Husted |
| 2016 NY Slip Op 08782 [145 AD3d 1637] |
| December 23, 2016 |
| Appellate Division, Fourth Department |
[*1]
| In the Matter of State of New York,Respondent, v Jedediah Husted, Appellant. |
Emmett J. Creahan, Director, Mental Hygiene Legal Service, Rochester (Lisa L.Paine of counsel), for respondent-appellant.
Eric T. Schneiderman, Attorney General, Albany (Allyson B. Levine of counsel), forpetitioner-respondent.
Appeal from an order of the Supreme Court, Ontario County (Craig J. Doran, A.J.),entered July 22, 2015 in a proceeding pursuant to Mental Hygiene Law article 10. Theorder, inter alia, granted the petition and determined that respondent violated theconditions of strict and intensive supervision and that he is a dangerous sex offenderrequiring confinement.
It is hereby ordered that the order so appealed from is unanimously reversed on thelaw without costs, the petition is denied, and the matter is remitted to Supreme Court,Ontario County, for further proceedings in accordance with the following memorandum:Respondent appeals from an order that, inter alia, granted the petition and determinedthat he violated the conditions of strict and intensive supervision (SIST) imposed on May31, 2011 and that he is a dangerous sex offender requiring confinement. We agree withrespondent that the evidence is not legally sufficient to establish, by clear and convincingevidence (see Mental Hygiene Law § 10.07 [f]), that he requiredconfinement pursuant to Mental Hygiene Law article 10.
The evidence at the hearing established that respondent violated the terms andconditions of SIST by using alcohol in November 2013 and marihuana in December2014 and February 2015, and by being discharged from sex offender treatment. We note,however, that respondent's treatment provider testified that his discharge from treatmentwas based solely on his substance abuse violations, that he was otherwise appropriatelyengaged in treatment, and that she was willing to accept him in treatment again. Theevidence also established that respondent had been diagnosed with antisocial personalitydisorder, alcohol use disorder and cannabis use disorder.
As the Court of Appeals made clear in Matter of State of New York v Michael M. (24 NY3d 649,658-659 [2014]), the statutory definitions of a dangerous sex offender requiringconfinement (see Mental Hygiene Law § 10.03 [e]) and a sexoffender requiring strict and intensive supervision (see § 10.03 [r])"clearly envisage[ ] a distinction between sex offenders who have difficulty controllingtheir sexual conduct and those who are unable to control it. The former are to besupervised and treated as 'outpatients' and only the latter may be confined" (MichaelM., 24 NY3d at 659). Here, viewing the evidence in the light most favorable topetitioner, we conclude that the evidence was "insufficient to support the trial court'sfinding that respondent had such an inability to control his behavior that he was likely tobe a danger to others and to commit sex offenses if not confined to a secure treatmentfacility" (id. at 660). Indeed, it is undisputed that the alleged violations ofrespondent's SIST conditions related solely to his use of alcohol and marihuana, and notto any alleged sexual conduct (see id. at 659). We therefore reverse the order,deny the petition, and remit the matter to Supreme Court for further proceedings.Respondent failed to preserve for our review his contention that he was denied dueprocess based on the lack of legally sufficient evidence that he is a dangerous sexoffender requiring confinement and, in light of our determination, we decline to reachthat contention.
We reject respondent's contention that the court erred in failing to consider a lessrestrictive alternative to confinement inasmuch as there is no requirement that the courtdo so (see Matter of State ofNew York v Parrott, 125 AD3d 1438, 1439-1440 [2015], lv denied 25NY3d 911 [2015]; see generally Michael M., 24 NY3d at 657-658). Respondent'scontention that he should be permitted to appear anonymously in this proceeding is notproperly before us inasmuch as we previously denied such an application fromrespondent, and he failed to move for leave to renew or reargue that determination(see Matter of State of New York v Smith [appeal No. 1], 145 AD3d 1445 [2016]). Present—Centra, J.P., Peradotto, Lindley, NeMoyer and Scudder,JJ.