Opinion
417 CA 22-01064
06-09-2023
In the Matter of the STATE of New York, Petitioner-Respondent, v. ROBERT R., Respondent-Appellant.
ELIZABETH S. FORTINO, DIRECTOR, MENTAL HYGIENE LEGAL SERVICE, BUFFALO (MARGOT BENNETT MITSCHOW OF COUNSEL), FOR RESPONDENT-APPELLANT. LETITIA JAMES, ATTORNEY GENERAL, ALBANY (FRANK BRADY OF COUNSEL), FOR PETITIONER-RESPONDENT.
ELIZABETH S. FORTINO, DIRECTOR, MENTAL HYGIENE LEGAL SERVICE, BUFFALO (MARGOT BENNETT MITSCHOW OF COUNSEL), FOR RESPONDENT-APPELLANT.
LETITIA JAMES, ATTORNEY GENERAL, ALBANY (FRANK BRADY OF COUNSEL), FOR PETITIONER-RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, CURRAN, BANNISTER, AND OGDEN, 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 pursuant to Mental Hygiene Law article 10 determining, following a nonjury trial, that he is a dangerous sex offender requiring confinement (see § 10.03 [e]) and committing him to a secure treatment facility.
Respondent contends that Supreme Court erred in refusing to preclude the testimony of one of petitioner's expert witnesses on the ground that the testimony of that expert would be cumulative of the testimony of petitioner's other expert. We reject that contention. Although both experts concluded that respondent suffered from a mental abnormality, their testimony was not cumulative because there are distinctions between their diagnoses of respondent (see Matter of State of New York v. Justin D. , 145 A.D.3d 735, 736, 43 N.Y.S.3d 399 [2d Dept. 2016], lv denied 29 N.Y.3d 906, 2017 WL 1718648 [2017] ; Matter of State of New York v. James K. , 135 A.D.3d 35, 38, 19 N.Y.S.3d 124 [3d Dept. 2015] ; see generally Matter of State of New York v. Bass , 119 A.D.3d 1356, 1357, 989 N.Y.S.2d 556 [4th Dept. 2014], lv denied 24 N.Y.3d 908, 2014 WL 5394102 [2014], cert denied 575 U.S. 941, 135 S.Ct. 1715, 191 L.Ed.2d 687 [2015] ).
Respondent failed to preserve for our review his contention that petitioner failed to establish that he had serious difficulty controlling his sexually offending behavior and that he is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility "inasmuch as he did not move for a directed verdict pursuant to CPLR 4401 or challenge the sufficiency of the evidence on those points in any other way" ( Matter of Vega v. State of New York , 140 A.D.3d 1608, 1609, 34 N.Y.S.3d 810 [4th Dept. 2016] ). In any event, viewing the record in the light most favorable to petitioner (see Matter of State of New York v. Floyd Y. , 30 N.Y.3d 963, 964, 65 N.Y.S.3d 111, 87 N.E.3d 143 [2017] ), we conclude that the evidence is legally sufficient to support a determination that respondent has serious difficulty controlling his sexually offending behavior (see Matter of Akgun v. State of New York , 148 A.D.3d 1613, 1614, 50 N.Y.S.3d 707 [4th Dept. 2017] ), and is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility (see Matter of State of New York v. Joseph R. , 189 A.D.3d 2126, 2128, 134 N.Y.S.3d 864 [4th Dept. 2020], appeal dismissed & lv denied 37 N.Y.3d 932, 146 N.Y.S.3d 871, 169 N.E.3d 1235 [2021] ; Bass , 119 A.D.3d at 1357-1358, 989 N.Y.S.2d 556 ). To the extent that respondent contends that the determination that he is a dangerous sex offender requiring confinement is against the weight of the evidence, we reject that contention (see generally Matter of State of New York v. Robert T. , 214 A.D.3d 1405, 1407, 183 N.Y.S.3d 886 [4th Dept. 2023] ; Akgun , 148 A.D.3d at 1614, 50 N.Y.S.3d 707 ).