In the Matter of State v. (anonymous)

84 A.D.3d 1248

924 N.Y.S.2d 467

2011 N.Y. Slip Op. 04476

In the Matter of STATE of New York, respondent,

v.ANDRE L. (Anonymous), appellant.

Supreme Court, Appellate Division, Second Department, New York.

May 24, 2011.

Mental Hygiene Legal Service, Mineola, N.Y. (Lesley M. DeLia, Scott M. Wells, and Dennis B. Feld of counsel), for appellant.Eric T. Schneiderman, Attorney General, New York, N.Y. (Michael S. Belohlavek and Sudarsana Srinivasan of counsel), for respondent.JOSEPH COVELLO, J.P., CHERYL E. CHAMBERS, PLUMMER E. LOTT, and ROBERT J. MILLER, JJ.

In a proceeding pursuant to Mental Hygiene Law article 10 for the civil management of Andre L., a sex offender allegedly requiring civil management, Andre L. appeals from an order of the Supreme Court, Kings County (Dowling, J.), dated March 16, 2010, which, upon a finding, after a jury trial, that he suffers from a mental abnormality as defined in Mental Hygiene Law § 10.03(i), and a determination, after a dispositional hearing, that he currently is a dangerous sex offender requiring civil confinement, in effect, granted the petition and directed that he be committed to a secure treatment facility for care, treatment, and control until such time as he no longer requires confinement.

ORDERED that the order is affirmed, without costs or disbursements.

This appeal arises from a proceeding pursuant to Mental Hygiene Law article 10, also known as the Sex Offender Management and Treatment Act (hereinafter SOMTA). In January 1992, the appellant was convicted, upon his plea of guilty, of robbery in the second degree based on three incidents that occurred during the summer of 1991 in which the appellant allegedly exposed himself to women on the street, demanded the personal property of two of the women, and slashed these two women with a knife. The appellant was sentenced to an indeterminate term of imprisonment of 18 to 54 months, was released to parole in March 1995, and was discharged from parole in September 1996. In June 1998, the appellant was convicted, upon his plea of guilty, of robbery in the first degree based on an incident in December 1997 in which he allegedly demanded, while displaying a knife, that a woman give him her pocketbook and undress, and then grabbed her breasts. At the time of his arrest, the appellant was wearing women's undergarments, with his penis exposed, under an open trench coat. The appellant was sentenced to a determinate term of imprisonment of 10 years.

On August 29, 2006, the appellant was admitted directly to the Central New York Psychiatric Center (hereinafter CNYPC) for involuntary care pursuant to Mental Hygiene Law article 9. Although requested by the appellant, no hearing was held pursuant to either Mental Hygiene Law § 9.31(a) or § 9.33(c), and an order of retention was not issued. SOMTA became effective on April 13, 2007, and in February 2008, based upon the recommendation of a Case Review Team appointed by the State Commissioner of Mental Health, the Attorney General filed a petition in the Supreme Court, Oneida County, pursuant to Mental Hygiene Law article 10 for the civil management of the appellant ( see Mental Hygiene Law § 10.06). After the appellant's motion to transfer venue to Kings County was granted, the Supreme Court conducted a probable cause hearing ( see Mental Hygiene Law § 10.06[g] ). The Supreme Court found that there was probable cause to believe that civil management was required. The Supreme Court subsequently conducted a jury trial on the issues of whether the robbery in the first degree, a designated felony pursuant to Mental Hygiene Law § 10.03(f), was sexually motivated and whether the appellant suffers from a mental abnormality ( see Mental Hygiene Law § 10.03[i] ). The jury unanimously found that the designated felony was sexually motivated and that the appellant suffers from a mental abnormality. Thereafter, the appellant moved to dismiss the petition on the ground that he was not a lawfully detained sex offender. The Supreme Court denied the motion and subsequently conducted a dispositional hearing ( see Mental Hygiene Law § 10.07[f] ). At the conclusion of the hearing, the Supreme Court found that the appellant was a dangerous sex offender requiring civil confinement and ordered such confinement ( id.).

The appellant contends that the jury's findings that the designated felony was sexually motivated and that he suffers from a mental abnormality were contrary to the weight of the evidence. “[A] jury verdict may be set aside as against the weight of the evidence only when the evidence preponderates so greatly in the movant's favor that the jury could not have reached its conclusion on any fair interpretation of the evidence” ( Matter of State of New York v. Shawn X., 69 A.D.3d 165, 169, 887 N.Y.S.2d 692 [internal quotation marks omitted]; see Matter of State of New York v. Gierszewski, 81 A.D.3d 1473, 916 N.Y.S.2d 729; Matter of State of New York v. Derrick B., 68 A.D.3d 1124, 1126, 892 N.Y.S.2d 140). A jury's determinations as to the credibility of the witnesses are “entitled to great deference given the jury's opportunity to evaluate the weight and credibility of conflicting expert testimony” ( Matter of State of New York v. Shawn X., 69 A.D.3d at 168, 887 N.Y.S.2d 692; see Matter of State of New York v. Chrisman, 75 A.D.3d 1057, 1058, 905 N.Y.S.2d 414; Matter of State of New York v. Richard VV., 74 A.D.3d 1402, 1403, 903 N.Y.S.2d 184; Matter of State of New York v. Timothy JJ., 70 A.D.3d 1138, 1142, 895 N.Y.S.2d 568).

At trial, the State's expert, a psychiatrist, testified that in 1997, the appellant left his home dressed in women's undergarments with the intention of exposing himself, and the robbery was an additional element that was part of the thrill involving sexual arousal. Additionally, the State's expert opined that the appellant suffered from exhibitionism and fetishism and that these disorders made it unlikely that the appellant could control his impulses not only to expose himself but to have sexual contact with unknown women. Under these circumstances, notwithstanding the conflicting expert testimony presented by the appellant, the jury's verdict that the designated felony was sexually motivated and that the appellant suffers from a mental abnormality was supported by a fair interpretation of the evidence ( see Matter of...