Opinion
2012-10-30
In the Matter of the STATE of New York, Respondent, v. DANIEL F. (Anonymous), Appellant.
Emmett J. Creahan, Mental Hygiene Legal Service, Rochester (Lisa L. Paine of counsel), for appellant. Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Treasure, Barbara D. Underwood and Andrea Oser of counsel), for respondent.
Emmett J. Creahan, Mental Hygiene Legal Service, Rochester (Lisa L. Paine of counsel), for appellant. Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Treasure, Barbara D. Underwood and Andrea Oser of counsel), for respondent.
MEMORANDUM:
The order of the Appellate Division should be reversed, without costs, and the order of Supreme Court reinstated.
In this Mental Hygiene article 10 proceeding, Supreme Court, after a bench trial, found that respondent is not a dangerous sex offender requiring confinement pursuant to Mental Hygiene Law § 10.11(d), and ordered his discharge from confinement subject to a regimen of strict and intensive supervision. The Appellate Division reversed concluding that respondent is a dangerous sex offender requiring confinement (77 A.D.3d 1400, 908 N.Y.S.2d 789 [4th Dept.2010] ).
In a case such as this, where a factual disagreement exists between the trial court and the Appellate Division, we review the record to determine which factual findings more nearly comport with the weight of the evidence. Upon review of the record here, we conclude that the findings of Supreme Court more nearly comport with the weight of the evidence ( see Matter of Sheila G., 61 N.Y.2d 368, 386, 474 N.Y.S.2d 421, 462 N.E.2d 1139 [1984] ). Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur.
Order reversed, without costs, and order of Supreme Court, Onondaga County, reinstated, in a memorandum.