Opinion
487 CA 22-00989
07-28-2023
In the Matter of RICHARD R., Petitioner-Appellant, v. STATE of New York, Respondent-Respondent.
TODD G. MONAHAN, LITTLE FALLS, FOR PETITIONER-APPELLANT. LETITIA JAMES, ATTORNEY GENERAL, ALBANY (FRANK BRADY OF COUNSEL), FOR RESPONDENT-RESPONDENT.
TODD G. MONAHAN, LITTLE FALLS, FOR PETITIONER-APPELLANT.
LETITIA JAMES, ATTORNEY GENERAL, ALBANY (FRANK BRADY OF COUNSEL), FOR RESPONDENT-RESPONDENT.
PRESENT: PERADOTTO, J.P., BANNISTER, MONTOUR, AND GREENWOOD, 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 affirm.
We reject petitioner's contention that the evidence is legally insufficient to establish that he is currently a dangerous sex offender requiring confinement. Pursuant to the Mental Hygiene Law, a person may be found to be 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 Mental Hygiene Law 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]).
Contrary to petitioner's contention, viewing the evidence in the light most favorable to respondent (see Matter of State of New York v. John S. , 23 N.Y.3d 326, 348, 991 N.Y.S.2d 532, 15 N.E.3d 287 [2014], rearg denied 24 N.Y.3d 933, 993 N.Y.S.2d 544, 17 N.E.3d 1141 [2014] ), we conclude that the evidence is legally sufficient to establish by clear and convincing evidence " ‘the predisposition prong of the mental abnormality test’ " ( Matter of State of New York v. Anthony B. , 180 A.D.3d 688, 691, 118 N.Y.S.3d 230 [2d Dept. 2020], lv denied 35 N.Y.3d 913, 2020 WL 5176148 [2020] ; see Matter of Edward T. v. State of New York , 185 A.D.3d 1423, 1424, 128 N.Y.S.3d 117 [4th Dept. 2020] ). Respondent's expert diagnosed petitioner with pedophilic disorder and other specified personality disorder with antisocial features, which, when viewed in combination, predispose him to commit sex offenses and were sufficiently connected to his sex offending behavior (see 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] ).
We further conclude that the evidence is legally sufficient to establish by clear and convincing evidence that petitioner has "serious difficulty in controlling" his sexual conduct ( Mental Hygiene Law § 10.03 [i] ; see Matter of State of New York v. James R.C. , 165 A.D.3d 1612, 1613, 85 N.Y.S.3d 314 [4th Dept. 2018] ). Respondent established that petitioner failed to attend treatment groups, failed to have a relapse prevention plan, and had high scores on his risk assessment instruments (see Charles B. , 192 A.D.3d at 1585-1586, 144 N.Y.S.3d 504 ; Matter of State of New York v. Scott W. , 160 A.D.3d 1424, 1426, 76 N.Y.S.3d 332 [4th Dept. 2018], lv denied 31 N.Y.3d 913, 2018 WL 3149513 [2018] ). For the aforementioned reasons, we also conclude that respondent met its burden of establishing that petitioner has " ‘such an inability to control [his] behavior, that [he] is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility’ " ( Edward T. , 185 A.D.3d at 1425, 128 N.Y.S.3d 117, quoting § 10.03 [3] ; see Charles B. , 192 A.D.3d at 1585-1586, 144 N.Y.S.3d 504 ).