SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1009 

CA 11-00477 

PRESENT: SCUDDER, P.J., SMITH, CENTRA, LINDLEY, AND MARTOCHE, JJ. 

 

IN THE MATTER OF STATE OF NEW YORK, 

PETITIONER-RESPONDENT, 

V MEMORANDUM AND ORDER

JODY JAMES TROMBLEY, RESPONDENT-APPELLANT. 

 

DONALD R. GERACE, UTICA, FOR RESPONDENT-APPELLANT. 

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (KATHLEEN M. ARNOLD OF

COUNSEL), FOR PETITIONER-RESPONDENT. 

 

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

F. Shaheen, J.), entered November 5, 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 determining, following a jury trial, that he is

a detained sex offender who has a mental abnormality within the

meaning of Mental Hygiene Law § 10.03 (i) and determining, following a

dispositional hearing, that he is a dangerous sex offender requiring

confinement in a secure treatment facility. We reject respondent’s

contention that the evidence is legally insufficient to establish that

his assault convictions were sexually motivated, i.e., that they “were

committed in whole or in substantial part for the purpose of direct

sexual gratification of the actor” (§ 10.03 [s]). Petitioner’s expert

opined that respondent is a sexual sadist, inasmuch as he is sexually

aroused by another person’s physical or psychological suffering and

has acted on his urges with a nonconsenting person. The expert

explained that sadistic acts involve activities of dominance over a

victim, and that many of those acts had involved the victim of the

assaults. He opined that respondent engaged in acts of “gratuitous

violence,” which were one of the most common types of acts among

sexual sadists, that he became sexually gratified by the victim’s pain

and suffering, and that the two assaults to which he pleaded guilty

were sexually motivated. We therefore conclude that the evidence is

legally sufficient to support the jury verdict (see Matter of State of

New York v Gierszewski, 81 AD3d 1473, 1473, lv denied 17 NY3d 702). 

We reject respondent’s further contention that the verdict is against

the weight of the evidence (see id. at 1473-1474). Although
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CA 11-00477 

respondent’s expert opined that the assaults were not sexually

motivated, “ ‘[t]he jury verdict is entitled to great deference based

on the jury’s opportunity to evaluate the weight and credibility of

conflicting expert testimony’ ” (id. at 1474).

Also contrary to respondent’s contention, the evidence is legally

sufficient to establish that he “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]). Again, there was

conflicting expert testimony, and Supreme Court credited the testimony

of petitioner’s expert. We perceive no basis to disturb that

determination (see Matter of State of New York v Timothy EE., 97 AD3d

996, 998-999; Matter of State of New York v Harland, 94 AD3d 1558,

1559).

Respondent’s contention that the court erred in admitting in

evidence documents and testimony regarding two prior assault

convictions committed by respondent is without merit inasmuch as that

evidence was relevant on the issue whether the assault convictions

were sexually motivated (see Matter of State of New York v Lester, 94

AD3d 1492, 1492). With respect to the admission in evidence of a

prior victim’s unsworn statement, we conclude that any error in its

admission is harmless (see Matter of State of New York v Fox, 79 AD3d

1782, 1784). Respondent failed to preserve for our review his

contention that he was denied due process by the failure to hold the

trial within 60 days of the probable cause determination (see Mental

Hygiene Law § 10.07 [a]; see generally Matter of State of New York v

Reeve, 87 AD3d 1378, 1378, lv denied 18 NY3d 804). That contention is

without merit in any event inasmuch as the delay was attributable to

his own requests for adjournments. We have reviewed respondent’s

remaining contentions and conclude that they are without merit.

Entered: September 28, 2012 Frances E. Cafarell

Clerk of the Court