SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

785 

CA 15-00410 

PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, CURRAN, AND TROUTMAN, JJ. 

 

IN THE MATTER OF STATE OF NEW YORK, 

PETITIONER-RESPONDENT, 

V MEMORANDUM AND ORDER

CHRISTOPHER BUSHEY, RESPONDENT-APPELLANT.

 

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

(BRYCE R. THERRIEN OF COUNSEL), FOR RESPONDENT-APPELLANT. 

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (FRANK BRADY OF

COUNSEL), FOR PETITIONER-RESPONDENT. 

 

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

F. MacRae, J.), entered January 28, 2015 in a proceeding pursuant to

Mental Hygiene Law article 10. The order, inter alia, determined that

respondent is a dangerous sex offender requiring confinement and

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 determining that he

is a dangerous sex offender requiring confinement and committing him

to a secure treatment facility (see Mental Hygiene Law § 10.01 et

seq.). Respondent failed to preserve for our review his contentions

that the evidence is not legally sufficient to establish that he has a

mental abnormality or that he has an inability to control his sexual

misconduct inasmuch as he did not move for a directed verdict or

otherwise challenge the sufficiency of the evidence on those points

(see Matter of Vega v State of New York, 140 AD3d 1608, 1609). In any

event, respondent’s contentions lack merit. Petitioner presented a

“detailed psychological portrait of a sex offender [that] would

doubtless allow an expert to determine the level of control the

offender has over his sexual conduct” (Matter of State v Donald DD.,

24 NY3d 174, 188; see generally Matter of State of New York v Dennis

K., 27 NY3d 718, 734-735). Here, petitioner’s two expert witnesses

testified that: respondent suffers from pedophilia and antisocial

personality disorder with psychopathic traits; respondent refused to

admit that he was sexually attracted to children and, as a result, his

sex offender treatment program was not geared toward his particular

conditions; respondent failed to develop a relapse prevention program;

and respondent presents a significant risk of committing sex offenses

in the future. We therefore conclude that petitioner met its burden
-2- 785 

CA 15-00410 

of establishing by clear and convincing evidence that respondent has

“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 [him] having serious difficulty in

controlling such conduct” (§ 10.03 [i]; see Matter of State of New

York v Gierszewski, 81 AD3d 1473, 1473, lv denied 17 NY3d 702; see

generally Dennis K., 27 NY3d at 734-735). We further conclude that

petitioner met its burden of establishing by clear and convincing

evidence that respondent “suffer[s] from a mental abnormality

involving such a strong predisposition to commit sex offenses, and

such an inability to control behavior, that [he] is likely to be a

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

secure treatment facility” (§ 10.03 [e]; see Matter of Billinger v

State of New York, 137 AD3d 1757, 1758).

Entered: September 30, 2016 Frances E. Cafarell

Clerk of the Court