Opinion
1014 CA 21-01798
03-17-2023
In the Matter of the Application of STATE of New York, Petitioner-Respondent, v. ROBERT T., an Inmate in Custody of the New York State Department of Corrections and Community Supervision, Respondent-Appellant.
TODD G. MONAHAN, LITTLE FALLS, FOR RESPONDENT-APPELLANT. LETITIA JAMES, ATTORNEY GENERAL, ALBANY (KATHLEEN M. TREASURE OF COUNSEL), FOR PETITIONER-RESPONDENT.
TODD G. MONAHAN, LITTLE FALLS, FOR RESPONDENT-APPELLANT.
LETITIA JAMES, ATTORNEY GENERAL, ALBANY (KATHLEEN M. TREASURE OF COUNSEL), FOR PETITIONER-RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, LINDLEY, BANNISTER, AND MONTOUR, 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 detained sex offender who has a mental abnormality (see §§ 10.03 [g], [i]; 10.07 [d]) and determining, following a dispositional hearing, that he is a dangerous sex offender requiring confinement in a secure treatment facility (see §§ 10.03 [e]; 10.07 [f]). We affirm.
Respondent contends that he was denied due process due to an inordinate delay in holding the trial to determine if he was a detained sex offender suffering from a mental abnormality. Inasmuch as respondent failed to raise any objection to the delay, he failed to preserve that contention for our review (see Matter of State of New York v. Trombley , 98 A.D.3d 1300, 1302, 951 N.Y.S.2d 782 [4th Dept. 2012], lv denied 20 N.Y.3d 856, 2013 WL 105649 [2013] ; see also Matter of State of New York v. Daniel J. , 180 A.D.3d 1347, 1348, 118 N.Y.S.3d 346 [4th Dept. 2020], lv denied 35 N.Y.3d 908, 2020 WL 3422539 [2020] ), and we decline to exercise our power to review it in the interest of justice (see generally Matter of State of New York v. Castleberry , 120 A.D.3d 1535, 1535, 992 N.Y.S.2d 589 [4th Dept. 2014], lv denied 25 N.Y.3d 908, 2015 WL 2237399 [2015] ; Matter of State of New York v. Muench , 85 A.D.3d 1581, 1582, 925 N.Y.S.2d 291 [4th Dept. 2011] ; Matter of State of New York v. Campany , 77 A.D.3d 92, 100, 905 N.Y.S.2d 419 [4th Dept. 2010], lv denied 15 N.Y.3d 713, 2010 WL 4183541 [2010] ).
Respondent further contends that he was denied effective assistance of counsel throughout the proceedings. Inasmuch as "respondent is subject to civil confinement, the standard for determining whether effective assistance of counsel was provided in criminal matters is applicable here" ( Matter of State of New York v. Carter , 100 A.D.3d 1438, 1439, 953 N.Y.S.2d 794 [4th Dept. 2012] ; see Matter of State of New York v. Karl M. , 192 A.D.3d 1119, 1123, 145 N.Y.S.3d 550 [2d Dept. 2021], lv denied 37 N.Y.3d 912, 2021 WL 4735594 [2021] ). Respondent's attorney conceded that he advised respondent to participate in an interview with the independent expert appointed by Supreme Court based on the attorney's mistaken belief that the independent expert was respondent's expert and that respondent's statements would be protected by either the attorney-client or the doctor-patient privilege.
We nevertheless conclude that the single mistake made by respondent's attorney "was ‘not so egregious and prejudicial that [it] deprived [respondent] of his right to a fair trial’ " ( People v. Reitz , 125 A.D.3d 1425, 1425, 3 N.Y.S.3d 228 [4th Dept. 2015], lv denied 26 N.Y.3d 934, 17 N.Y.S.3d 97, 38 N.E.3d 843 [2015], reconsideration denied 26 N.Y.3d 1091, 23 N.Y.S.3d 648, 44 N.E.3d 946 [2015] ; see People v. Caban , 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] ; People v. Irvine , 197 A.D.3d 988, 990-991, 153 N.Y.S.3d 378 [4th Dept. 2021], lv denied 37 N.Y.3d 1060, 154 N.Y.S.3d 636, 176 N.E.3d 672 [2021] ). Viewing the evidence, the law, and the circumstances of this case as a whole and at the time of the representation, we conclude that respondent received effective assistance of counsel (see Matter of State of New York v. Treat , 100 A.D.3d 1513, 1513-1514, 954 N.Y.S.2d 368 [4th Dept. 2012] ; see generally People v. Baldi , 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ). Finally, we reject respondent's contention that the court's determination that respondent was a detained sex offender who suffered from a mental abnormality (see Mental Hygiene Law § 10.07 [d] ) and a dangerous sex offender requiring confinement (see § 10.07 [f] ) is against the weight of the evidence. With respect to the determination that respondent suffered from a mental abnormality, we conclude that "the evidence does not preponderate so greatly in respondent's favor that the court could not have reached its conclusion on any fair interpretation of the evidence" ( Matter of State of New York v. Orlando T. , 184 A.D.3d 1149, 1149, 123 N.Y.S.3d 884 [4th Dept. 2020] ; see also Trombley , 98 A.D.3d at 1301, 951 N.Y.S.2d 782 ).
With respect to the determination that respondent was a dangerous sex offender requiring confinement, we conclude that "[t]he evidence presented by respondent that conflicted with that presented by petitioner merely raised a credibility issue for the court to resolve, and its determination is entitled to great deference given its ‘opportunity to evaluate [first-hand] the weight and credibility of [the] conflicting ... testimony’ " ( Matter of State of New York v. Stein , 85 A.D.3d 1646, 1647, 924 N.Y.S.2d 231 [4th Dept. 2011], affd 20 N.Y.3d 99, 956 N.Y.S.2d 462, 980 N.E.2d 510 [2012], cert denied 568 U.S. 1216, 133 S.Ct. 1500, 185 L.Ed.2d 556 [2013] ). We see no basis to disturb the court's decision to credit the testimony of petitioner's experts and the independent expert (see Trombley , 98 A.D.3d at 1301, 951 N.Y.S.2d 782 ).