Opinion
627 CA 17–00173
05-04-2018
In the Matter of the Application of STATE of New York, Petitioner–Respondent, v. EDWARD T., an Inmate in the Custody of New York State Department of Corrections and Community Supervision, for Civil Management Pursuant to Mental Hygiene Law Article 10, Respondent–Appellant.
KEVIN D. WILSON, DEPUTY DIRECTOR, MENTAL HYGIENE LEGAL SERVICE, ROCHESTER (MICHAEL F. HIGGINS OF COUNSEL), FOR RESPONDENT–APPELLANT. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (FRANK BRADY OF COUNSEL), FOR PETITIONER–RESPONDENT.
KEVIN D. WILSON, DEPUTY DIRECTOR, MENTAL HYGIENE LEGAL SERVICE, ROCHESTER (MICHAEL F. HIGGINS OF COUNSEL), FOR RESPONDENT–APPELLANT.
ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (FRANK BRADY OF COUNSEL), FOR PETITIONER–RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CARNI, LINDLEY, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Respondent appeals from an order revoking his regimen of strict and intensive supervision and treatment, 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. ). Contrary to respondent's contention, viewing the evidence in the light most favorable to petitioner (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 there is sufficient evidence to support the finding of Supreme Court that respondent is a dangerous sex offender requiring confinement, i.e., that he has "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]; cf. Matter of State of New York v. Michael M., 24 N.Y.3d 649, 658–660, 2 N.Y.S.3d 830, 26 N.E.3d 769 [2014] ).
We further conclude that the determination that respondent is a dangerous sex offender requiring confinement is not against the weight of the evidence. The court was in the best position to evaluate the weight and credibility of the uncontradicted testimony of petitioner's expert, and we see no reason to disturb the court's determination (see Matter of State of New York v. Peters, 144 A.D.3d 1654, 1656, 46 N.Y.S.3d 298 [4th Dept. 2016] ). Respondent's contention that petitioner's expert psychiatric examiner misapplied certain assessment tests is raised for the first time on appeal and thus is not properly before us (see Matter of State of New York v. Breeden, 140 A.D.3d 1649, 1650, 34 N.Y.S.3d 814 [4th Dept. 2016] ).