Opinion
1231 CA 17–00443
12-21-2018
In the Matter of STATE of New York, Petitioner–Respondent, v. JAMAAL A., Respondent–Appellant.
CHARLES J. GREENBERG, AMHERST, FOR RESPONDENT–APPELLANT. BARBARA D. UNDERWOOD, ATTORNEY GENERAL, ALBANY (KATHLEEN M. TREASURE OF COUNSEL), FOR PETITIONER–RESPONDENT.
CHARLES J. GREENBERG, AMHERST, FOR RESPONDENT–APPELLANT.
BARBARA D. UNDERWOOD, ATTORNEY GENERAL, ALBANY (KATHLEEN M. TREASURE OF COUNSEL), FOR PETITIONER–RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND NEMOYER, JJ.
MEMORANDUM AND ORDERIt is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: On appeal from an order revoking his prior regimen of strict and intensive supervision and treatment (SIST), determining that he is a dangerous sex offender requiring confinement and committing him to a secure treatment facility (see Mental Hygiene Law § 10.01 et seq. ), respondent contends that Supreme Court erred in determining that he has a mental abnormality that predisposes him to commit sex offenses. That contention is not properly before us. "In a SIST revocation hearing, like in a dispositional hearing following trial on the issue of mental abnormality, the statute gives the court only two dispositional choices-to order civil confinement or to continue a regimen of SIST ..., both of which assume that respondent has a mental abnormality. The only issue before the court, therefore, is whether the mental abnormality is such that respondent requires confinement ... In light of that statutory structure, we see no need to address respondent's contention[ ] that the evidence of mental abnormality was insufficient" ( Matter of State of New York v. Breeden, 140 A.D.3d 1649, 1649, 34 N.Y.S.3d 814 [4th Dept. 2016] ; see Matter of State of New York v. David HH., 147 AD.3.d 1230, 1233, 48 N.Y.S.3d 791 [3d Dept. 2017], lv denied 29 N.Y.3d 913, 2017 WL 2682593 [2017] ). Contrary to respondent's further contention, petitioner established by clear and convincing evidence (see Mental Hygiene Law § 10.11 [d][4] ) that respondent was a dangerous sex offender requiring confinement, i.e., a person "suffering from a mental abnormality involving such a strong predisposition to commit sex offenses, and such an inability to control behavior, that [he] is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility" (§ 10.03[e]; see Matter of State of New York v. George N., 160 A.D.3d 28, 30, 70 N.Y.S.3d 699 [4th Dept. 2018] ). Although respondent's SIST violations did not involve sexual conduct, they demonstrated an "increased sexual preoccupation, [as well as] ongoing deceptive, manipulative, and victim-grooming behaviors." Moreover, respondent had resisted supervision and seemed unable to refrain from his "impulsive, high-risk behaviors in total disregard of the known potential negative consequences of such behaviors." We thus conclude that the SIST violations "[bore] a close causative relationship to sex offending" ( George N., 160 A.D.3d at 33, 70 N.Y.S.3d 699 ), and " ‘remain highly relevant regarding the level of danger that [respondent] poses to the community with respect to his risk of recidivism’ " ( Matter of State of New York v. Jason H., 82 A.D.3d 778, 780, 917 N.Y.S.2d 708 [2d Dept. 2011] ; see Matter of State of New York v. William J. [appeal No. 2], 151 A.D.3d 1890, 1891–1892, 58 N.Y.S.3d 789 [4th Dept. 2017] ; cf. George N., 160 A.D.3d at 33–34, 70 N.Y.S.3d 699 ; Matter of State of New York v. Husted, 145 A.D.3d 1637, 1638, 44 N.Y.S.3d 314 [4th Dept. 2016] ).