SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

814 

CA 10-01352 

PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, AND SCONIERS, JJ.

 

 

IN THE MATTER OF THE STATE OF NEW YORK, 

PETITIONER-RESPONDENT, 

V MEMORANDUM AND ORDER

SHANNON STEIN, RESPONDENT-APPELLANT. 

DAVISON LAW OFFICE, PLLC, CANANDAIGUA (MARK C. DAVISON OF COUNSEL),

FOR RESPONDENT-APPELLANT. 

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (KATHLEEN M. TREASURE

OF COUNSEL), FOR PETITIONER-RESPONDENT. 

 

Appeal from an order of the Supreme Court, Chautauqua County

(Timothy J. Walker, A.J.), entered June 23, 2010 in a proceeding

pursuant to Mental Hygiene Law article 10. The order, among other

things, committed respondent to a secure treatment facility. 

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 in which Supreme Court determined, following a

nonjury trial, that he has a mental abnormality that predisposes him

to committing sex offenses (see Mental Hygiene Law § 10.03 [i]), and

directed that he be committed to a secure treatment facility. We

reject respondent’s contention that the court improperly assumed the

role of an advocate when it sua sponte reopened the proof at the

conclusion of the mental abnormality phase of the trial, inasmuch as

the court stated on the record that additional evidence was required

in order to clarify hearsay issues, particularly with respect to

collateral interviews conducted by one of the psychologists (see

generally People v Arnold, 98 NY2d 63, 68). We further note that the

court stated that it would allow respondent’s expert to provide a

supplemental report and supplemental testimony taking into account the

new testimony. Also contrary to respondent’s contention, the evidence

is legally sufficient to support the court’s determination that he

suffers from a mental abnormality within the meaning of Mental Hygiene

Law § 10.03 (i) (see Matter of State of New York v Gierszewski, 81

AD3d 1473). According to the testimony of two psychologists presented

by petitioner, respondent suffers from paraphilia not otherwise

specified, which predisposes him to committing sexual offenses, and

that he has had serious difficulty controlling that sexual conduct. 

Petitioner thus established by clear and convincing evidence that
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CA 10-01352 

respondent suffers from “a congenital or acquired condition, disease

or disorder that affects [his] emotional, cognitive, or volitional

capacity . . . in a manner that predisposes him . . . to the

commission of conduct constituting a sex offense and that results in

[respondent] having serious difficulty in controlling such conduct” (§

10.03 [i]; see Gierszewski, 81 AD3d at 1473).

We further conclude that the court’s determination that

respondent suffers from a mental abnormality within the meaning of the

statute is not against the weight of the evidence. The 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 expert testimony” (Matter of State of New York v

Chrisman, 75 AD3d 1057, 1058). Upon our review of the record, 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 Shawn X., 69 AD3d 165, 169, lv denied 14 NY3d

702). 

Contrary to respondent’s further contention, the evidence is

legally sufficient to support the determination that he requires

confinement. Petitioner’s two psychologists testified at the

dispositional phase of the trial that respondent had multiple

compliance problems in the past both with probation and parole and

that he was likely to recidivate if released from custody. Petitioner

thus established by the requisite clear and convincing evidence that

respondent “has a mental abnormality involving such a strong

predisposition to commit sex offenses, and such an inability to

control behavior, that the respondent is likely to be a danger to

others and to commit sex offenses if not confined to a secure

treatment facility” (Mental Hygiene Law § 10.07 [f]; see Matter of

State of New York v Craig T., 77 AD3d 1062, 1063). Respondent’s

contention regarding the order issued following the probable cause

hearing is not properly before us because no appeal lies from such an

order (see § 10.13 [b]). We have considered respondent’s remaining

contention and conclude that it is without merit.

Entered: June 10, 2011 Patricia L. Morgan

Clerk of the Court