State v. Carl S.

125 A.D.3d 670

6 N.Y.S.3d 63

2015 N.Y. Slip Op. 00893

In the Matter of STATE of New York, respondent

v.CARL S. (Anonymous), appellant.

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

Feb. 4, 2015.

Steven A. Feldman, Uniondale, N.Y. (Arza Feldman of counsel), for appellant, and appellant pro se.

Eric T. Schneiderman, Attorney General, New York, N.Y. (Michael S. Belohlavek and Mark H. Shawhan of counsel), for respondent.

REINALDO E. RIVERA, J.P., RUTH C. BALKIN, COLLEEN D. DUFFY, and HECTOR D. LaSALLE, JJ.

Opinion

In a proceeding pursuant to Mental Hygiene Law article 10, Carl S., a convicted sex offender allegedly requiring civil management, appeals from an order of the Supreme Court, Queens County (Holder, J.), dated February 10, 2012, which, upon a finding, made after a jury trial, that he suffers from a mental abnormality as defined in Mental Hygiene Law § 10.03(i), and upon a determination, made 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.

The appellant's contention that the admission of hearsay basis evidence through the testimony of the petitioner's experts violated his right to due process is unpreserved for appellate review (see Matter of State of New York v. Castleberry, 120 A.D.3d 1535, 1535, 992 N.Y.S.2d 589 ; Matter of State of New York v. Lonard ZZ., 100 A.D.3d 1279, 1280, 954 N.Y.S.2d 675 ; Matter of State of New York v. Gary M., 94 A.D.3d 521, 521, 942 N.Y.S.2d 483 ; Matter of State of New York v. Wilkes, 77 A.D.3d 1451, 1452, 907 N.Y.S.2d 903 ). In any event, the limited testimony regarding a prior charged sex offense, which did not result in an acquittal or a conviction, did not violate his right to due process (see Matter of State of New York v. John S., 23 N.Y.3d 326, 331, 991 N.Y.S.2d 532, 15 N.E.3d 287 ; Matter of State of New York v. Floyd Y., 22 N.Y.3d 95, 110, 979 N.Y.S.2d 240, 2 N.E.3d 204 ). The petitioner's experts also were properly permitted to testify regarding certain information contained in records describing the appellant's criminal, psychiatric, and disciplinary history, since the purpose of the testimony was to explain the bases for the experts' opinions (see Mental Hygiene Law § 10.08[b] ; Matter of State of New York v. Robert F., 101 A.D.3d 1133, 1135, 958 N.Y.S.2d 156 ; Matter of State of New York v. Anonymous, 82 A.D.3d 1250, 1251, 920 N.Y.S.2d 195 ; Matter of State of New York v. Wilkes, 77 A.D.3d at 1453, 907 N.Y.S.2d 903 ).

Contrary to the appellant's contentions, the evidence upon which the jury made its findings that the designated felony was sexually motivated and that the appellant suffers from a “mental abnormality,” as that term is defined in Mental Hygiene Law § 10.03(i) (see Matter of State of New York v. John S., 23 N.Y.3d at 348–349, 991 N.Y.S.2d 532, 15 N.E.3d 287 ; Matter of State of New York v. Anonymous, 82 A.D.3d at 1251, 920 N.Y.S.2d 195 ), was legally sufficient, as there was a valid line of reasoning to support those findings (see Matter of State of New York v. Anonymous, 82 A.D.3d at 1251, 920 N.Y.S.2d 195 ; Matter of State of New York v. Derrick B., 68 A.D.3d 1124, 1126, 892 N.Y.S.2d 140 ). Moreover, those findings were supported by a fair interpretation of the evidence and, therefore, were not contrary to the weight of the evidence (see Matter of State of New York v. Justin C., 93 A.D.3d 852, 853, 941 N.Y.S.2d 636 ; Matter of State of New York v. Andre L., 84 A.D.3d 1248, 1249–1250, 924 N.Y.S.2d 467 ; Matter of State of New York v. Shawn X., 69 A.D.3d 165, 169, 887 N.Y.S.2d 692 ; Matter of State of New York v. Edison G., 107 A.D.3d 723, 724, 966 N.Y.S.2d 510 ).

Further, the Supreme Court properly found, after the dispositional hearing, by clear and convincing evidence, that the appellant is a “dangerous sex offender” as that term is defined in article 10, requiring that he be civilly confined (see Mental Hygiene Law § 10.07[f] ; Matter of State of New York v. Clarence D., 82 A.D.3d 776, 777–778, 917 N.Y.S.2d 700 ; Matter of State of New York v. Anonymous, 82 A.D.3d at 1252, 920 N.Y.S.2d 195 ).

The appellant's contention that he was deprived of the effective assistance of counsel is partially based on matter dehors the record and, therefore, not reviewable on this appeal (see Matter of State of New York v. Lashaway, 100 A.D.3d 1372, 1373, 953 N.Y.S.2d 434 ; Matter of State of New York v. Pierce, 79 A.D.3d 1779, 1781, 914 N.Y.S.2d 547 ; Matter of State of New York v. Campany, 77 A.D.3d 92, 99–100, 905...