SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

737 

CA 10-01767 

PRESENT: SMITH, J.P., FAHEY, CARNI, LINDLEY, AND GORSKI, JJ. 

 

IN THE MATTER OF THE STATE OF NEW YORK, 

PETITIONER-RESPONDENT, 

V MEMORANDUM AND ORDER

DAVID BOUTELLE, RESPONDENT-APPELLANT. 

 

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

(MARGOT S. BENNETT OF COUNSEL), FOR RESPONDENT-APPELLANT. 

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (MARLENE O. TUCZINSKI

OF COUNSEL), FOR PETITIONER-RESPONDENT. 

 

Appeal from an order of the Supreme Court, Niagara County

(Richard C. Kloch, Sr., A.J.), entered July 8, 2010 in a proceeding

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

Hygiene Law article 10 and committing him to a secure treatment

facility. Respondent consented to a finding of mental abnormality

and, contrary to his contention, petitioner established by clear and

convincing evidence at the dispositional hearing that respondent is a

dangerous sex offender requiring confinement (see § 10.07 [f]). In

determining whether petitioner met that burden, a court may “rely on

all the relevant facts and circumstances” (Matter of State of New York

v Motzer, 79 AD3d 1687, 1688). Here, petitioner established that

respondent victimized three children, including his half brother,

within three weeks of his release on parole. Respondent previously

admitted to being sexually attracted to prepubescent boys, and he also

admitted that he required further treatment. Although respondent

testified at the dispositional hearing that he is no longer sexually

attracted to children, petitioner’s expert psychologists diagnosed

respondent with pedophilia and testified that respondent is unable to

control his behavior. Supreme Court’s determination to discount the

testimony of respondent in light of petitioner’s contrary evidence

“was within the court’s province as the factfinder, and we see no

basis to disturb that determination” (Matter of State of New York v

Flagg [appeal No. 2], 71 AD3d 1528, 1530). Respondent’s further

contention that the court failed to consider alternatives to
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CA 10-01767 

confinement is belied by the record.

We reject respondent’s contention that the court failed to issue

its decision in a timely manner and to state in its decision the facts

that it deemed essential in determining respondent to be a dangerous

sex offender requiring confinement (see Mental Hygiene Law § 10.07

[b]; CPLR 4213 [b]-[c]). Although the decision was not issued within

60 days after the matter was finally submitted (see Mental Hygiene Law

§ 10.07 [b]; CPLR 4213 [c]), that defect is not jurisdictional and

thus the decision is valid (see generally Matter of Jonathan D., 297

AD2d 400, 402). Further, if respondent desired a decision sooner, his

remedy was to request a decision informally or to commence a CPLR

article 78 proceeding to compel the court to issue a decision (see

generally Miller v Lanzisera, 273 AD2d 866, 867, appeal dismissed 95

NY2d 887, rearg denied 96 NY2d 731).

Entered: June 10, 2011 Patricia L. Morgan

Clerk of the Court