Opinion
1036 CA 21-01697
03-17-2023
In the Matter of the Application for Discharge of FRANCISCO R., From Central New York Psychiatric Center, Pursuant to Mental Hygiene Law Section 10.09, Petitioner-Appellant, v. STATE of New York, Respondent-Respondent.
ELIZABETH S. FORTINO, DIRECTOR, MENTAL HYGIENCE LEGAL SERVICE, SYRACUSE (MICHAEL H. MCCORMICK OF COUNSEL), FOR PETITIONER-APPELLANT. LETITIA JAMES, ATTORNEY GENERAL, ALBANY (KATHLEEN M. TREASURE OF COUNSEL), FOR RESPONDENT-RESPONDENT.
ELIZABETH S. FORTINO, DIRECTOR, MENTAL HYGIENCE LEGAL SERVICE, SYRACUSE (MICHAEL H. MCCORMICK OF COUNSEL), FOR PETITIONER-APPELLANT.
LETITIA JAMES, ATTORNEY GENERAL, ALBANY (KATHLEEN M. TREASURE OF COUNSEL), FOR RESPONDENT-RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, BANNISTER, MONTOUR, AND OGDEN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Petitioner appeals from an order, entered after an annual review hearing pursuant to Mental Hygiene Law § 10.09 (d), determining that he is a dangerous sex offender requiring confinement under section 10.03 (e) and directing that he continue to be confined to a secure treatment facility (see § 10.09 [h] ).
We reject petitioner's contention that the determination that he is a dangerous sex offender requiring confinement is against the weight of the evidence. Pursuant to the Mental Hygiene Law, a person is classified as a dangerous sex offender requiring confinement if that person "suffer[s] from a mental abnormality involving such a strong predisposition to commit sex offenses, and such an inability to control behavior, that the person is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility" (§ 10.03 [e]). The statute defines a mental abnormality as "a congenital or acquired condition, disease or disorder that affects the emotional, cognitive, or volitional capacity of a person in a manner that predisposes him or her to the commission of conduct constituting a sex offense and that results in that person having serious difficulty in controlling such conduct" (§ 10.03 [i]). Here, we conclude that the evidence does not preponderate so greatly in petitioner's favor that the factfinder could not have reached its conclusion that petitioner continues to suffer from a mental abnormality on any fair interpretation of the evidence (see Matter of State of New York v. Connor , 134 A.D.3d 1577, 1578, 21 N.Y.S.3d 920 [4th Dept. 2015], lv denied 27 N.Y.3d 903, 2016 WL 1312793 [2016] ). The evidence established that petitioner has been diagnosed with antisocial personality disorder (ASPD), and alcohol, cannabis, and opioid use disorders, which, along with his high degree of psychopathy, predispose him to commit sex offenses and result in serious difficulty in controlling such conduct (see Matter of Vega v. State of New York , 140 A.D.3d 1608, 1609, 34 N.Y.S.3d 810 [4th Dept. 2016] ; Connor , 134 A.D.3d at 1578, 21 N.Y.S.3d 920 ; see also Matter of Charles B. v. State of New York , 192 A.D.3d 1583, 1585, 144 N.Y.S.3d 504 [4th Dept. 2021], lv denied 37 N.Y.3d 913, 2021 WL 5370871 [2021] ; Matter of Luis S. v. State of New York , 166 A.D.3d 1550, 1551-1552, 88 N.Y.S.3d 748 [4th Dept. 2018], appeal dismissed 35 N.Y.3d 985, 125 N.Y.S.3d 75, 148 N.E.3d 539 [2020] ). Contrary to petitioner's contention, County Court did not conclude that a diagnosis of ASPD, in conjunction with the condition of psychopathy, constitutes as a matter of law a mental abnormality. Rather, the court noted that it may constitute evidence of a mental abnormality before it conducted an individualized determination "with[ ] regard to petitioner's specific case," as is required ( Matter of Doy S. v. State of New York , 196 A.D.3d 1165, 1167, 149 N.Y.S.3d 745 [4th Dept. 2021] ; see Matter of State of New York v. Francisco R. , 191 A.D.3d 989, 991, 141 N.Y.S.3d 505 [2d Dept. 2021], lv denied 37 N.Y.3d 986, 151 N.Y.S.3d 669, 173 N.E.3d 792 [2021] ; Matter of State of New York v. Marcello A. , 180 A.D.3d 786, 787-790, 118 N.Y.S.3d 688 [2d Dept. 2020], appeal dismissed 36 N.Y.3d 940, 135 N.Y.S.3d 670, 160 N.E.3d 329 [2020], lv denied 37 N.Y.3d 911, 2021 WL 4597432 [2021] ; see also Matter of Suggs v. State of New York , 142 A.D.3d 1283, 1284, 39 N.Y.S.3d 553 [4th Dept. 2016] ).
The court's determination that petitioner requires continued confinement is also not against the weight of the evidence. Respondent's expert witness testified that petitioner's engagement with treatment had not resulted in any insight into his offending behavior and that petitioner continued to fall within the well above average range for risk of reoffending based upon his scores on the Violence Risk Scale-Sex Offender Version and the Static-99 (see Charles B. , 192 A.D.3d at 1585-1586, 144 N.Y.S.3d 504 ; Matter of Wayne J. v. State of New York , 184 A.D.3d 1133, 1135, 123 N.Y.S.3d 851 [4th Dept. 2020], lv denied 36 N.Y.3d 906, 2021 WL 505192 [2021] ; Matter of Billinger v. State of New York , 137 A.D.3d 1757, 1758, 27 N.Y.S.3d 423 [4th Dept. 2016], lv denied 27 N.Y.3d 911, 2016 WL 3553381 [2016] ). Although petitioner presented expert testimony that would support a contrary finding, that "merely raised a credibility issue for the court to resolve, and its determination is entitled to great deference given its opportunity to evaluate [first-hand] the weight and credibility of [the] conflicting expert testimony" ( Luis S. , 166 A.D.3d at 1554, 88 N.Y.S.3d 748 [internal quotation marks omitted]; see Matter of State of New York v. Chrisman , 75 A.D.3d 1057, 1058, 905 N.Y.S.2d 414 [4th Dept. 2010] ).