SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

234 

CA 15-02101 

PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, DEJOSEPH, AND SCUDDER, JJ. 

 

IN THE MATTER OF THE APPLICATION FOR DISCHARGE 

OF DENIS AKGUN, CONSECUTIVE NO. 21956, FROM 

CENTRAL NEW YORK PSYCHIATRIC CENTER PURSUANT TO 

MENTAL HYGIENE LAW SECTION 10.09, 

PETITIONER-APPELLANT, 

 

V MEMORANDUM AND ORDER

STATE OF NEW YORK, NEW YORK STATE OFFICE OF 

MENTAL HEALTH AND NEW YORK STATE DEPARTMENT OF 

CORRECTIONS AND COMMUNITY SUPERVISION, 

RESPONDENTS-RESPONDENTS. 

 

EMMETT J. CREAHAN, DIRECTOR, MENTAL HYGIENE LEGAL SERVICE, UTICA

(BRYCE THERRIEN OF COUNSEL), FOR PETITIONER-APPELLANT. 

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (ALLYSON B. LEVINE OF

COUNSEL), FOR RESPONDENTS-RESPONDENTS. 

 

Appeal from an order of the Supreme Court, Oneida County (Louis

P. Gigliotti, A.J.), entered November 10, 2015 in a proceeding

pursuant to Mental Hygiene Law article 10. The order determined that

petitioner is a detained sex offender who currently suffers from a

mental abnormality and directed that petitioner be placed on strict

and intensive supervision and treatment. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: Petitioner appeals from an order, entered after an

annual review hearing pursuant to Mental Hygiene Law § 10.09 (d),

determining that he is a detained sex offender who currently suffers

from a mental abnormality as defined by section 10.03 (i) and

discharging him to a regimen of strict and intensive supervision and

treatment (see §§ 10.03 [q] [2]; 10.09 [h]). Petitioner contends that

the evidence is legally insufficient to support the finding that he

suffers from a mental abnormality within the meaning of the statute

because the evidence presented by respondents at the hearing did not

establish that he has “serious difficulty in controlling” his sexoffending conduct (§ 10.03 [i]). We reject that contention.

Respondents presented the testimony and examination report of a

psychologist who opined that, pursuant to the DSM–V, petitioner

suffers from other specified paraphilic disorder (non-consent, with
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CA 15-02101 

sadistic traits) and antisocial personality disorder. The

psychologist further opined that petitioner’s conditions predisposed

him to the commission of conduct constituting a sex offense and

resulted in his having serious difficulty in controlling his sexoffending conduct. The psychologist explained that, among other

factors, her opinion was based upon petitioner’s pattern of sexual

misconduct during which he committed increasingly violent rapes of

several women over a short period of time; his admissions and other

evidence that he was, and continued to be, aroused by elements of

fear, humiliation and control; and his inadequate progress in

treatment with respect to understanding and addressing his arousal

patterns and sadistic form of sexual deviance, which prevented him

from developing adequate skills to manage the risks associated

therewith (see Matter of Rene I. v State of New York, 146 AD3d 1056,

1057-1058; Matter of Wright v State of New York, 134 AD3d 1483, 1486). 

Indeed, the psychologist further explained that petitioner continued

to refer to himself during sex offender treatment as an “anger rapist”

who had issues with power and control, but there was insufficient

evidence that petitioner had adequately addressed that issue while in

treatment (see Matter of State of New York v Dennis K., 27 NY3d 718,

734, cert denied ___ US ___, 137 S Ct 579). The psychologist also

noted that petitioner continued to harbor negative views and hostility

toward women, and that petitioner’s score on a VRS:SO test that she

administered indicated that petitioner was in the high risk group for

reoffending sexually (see Rene I., 146 AD3d at 1058; Wright, 134 AD3d

at 1486-1487). Viewing the evidence in the light most favorable to

respondents, we conclude that respondents “provided ‘[a] detailed

psychological portrait’ of [petitioner] that met [their] burden of

demonstrating by clear and convincing evidence that he had ‘serious

difficulty’ in controlling his sex-offending conduct” (Dennis K., 27

NY3d at 751).

To the extent that petitioner also contends that the

determination is against the weight of the evidence, we reject that

contention. The court “was in the best position to evaluate the

weight and credibility of the conflicting [expert] testimony presented

. . . , and we see no reason to disturb the court’s decision to credit

the testimony of [respondents’] expert[]” (Matter of Billinger v State

of New York, 137 AD3d 1757, 1758, lv denied 27 NY3d 911 [internal

quotation marks omitted]).

Entered: March 24, 2017 Frances E. Cafarell

Clerk of the Court