        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

372
CA 14-00556
PRESENT: CENTRA, J.P., CARNI, DEJOSEPH, CURRAN, AND SCUDDER, JJ.


IN THE MATTER OF STATE OF NEW YORK,
PETITIONER-RESPONDENT,

                    V                              MEMORANDUM AND ORDER

NUSHAWN WILLIAMS, ALSO KNOWN AS SHYTEEK JOHNSON,
RESPONDENT-APPELLANT.
(APPEAL NO. 1.)


DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARK C. DAVISON OF COUNSEL), FOR
RESPONDENT-APPELLANT.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (ALLYSON B. LEVINE OF
COUNSEL), FOR PETITIONER-RESPONDENT.

CLIFFORD CHANCE US LLP, NEW YORK CITY (EVELYN KACHAJE OF COUNSEL), AND
MAYO SCHREIBER, JR., DEPUTY DIRECTOR, THE CENTER FOR HIV LAW AND
POLICY, FOR THE AMERICAN ACADEMY OF HIV MEDICINE, DR. JEFFREY
BIRNBAUM/HEALTH EDUCATION ALTERNATIVES FOR TEENS, DR. ALWYN
COHALL/PROJECT STAY, THE CENTER FOR HIV LAW AND POLICY, THE NATIONAL
ALLIANCE OF STATE AND TERRITORIAL AIDS DIRECTORS, DR. NEAL RZEPKOWSKI,
AND THE TREATMENT ACTION GROUP, AMICI CURIAE.


     Appeal from an order of the Supreme Court, Chautauqua County
(John L. Michalski, A.J.), entered March 3, 2014 in a proceeding
pursuant to Mental Hygiene Law article 10. The order, among other
things, directed that respondent be committed to a secure treatment
facility designated by the Office of Mental Health.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: In appeal No. 1, respondent appeals from an order
determining that he is a dangerous sex offender requiring confinement
pursuant to Mental Hygiene Law § 10.07 (f). In appeal No. 2, he
appeals from an order denying his motion pursuant to CPLR 5015 (a)
seeking to vacate the order in appeal No. 1. Respondent was convicted
in Chautauqua County in 1999 of two counts of rape in the second
degree (Penal Law § 130.30) and one count of reckless endangerment in
the first degree (§ 120.25) and, in Bronx County, of one count of
reckless endangerment in the first degree (id.). The reckless
endangerment convictions stem from respondent’s respective pleas of
guilty that he had unprotected sexual relations knowing that he was
HIV-positive and that he did not inform his sexual partners that he
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                                                         CA 14-00556

was HIV-positive.

     We address first respondent’s contentions in appeal No. 1. As we
did in a prior appeal in this case (Matter of State of New York v
Williams, 92 AD3d 1274, 1275-1276), we reject respondent’s contention
that he was not a detained sex offender when petitioner filed the
petition for civil management. Contrary to respondent’s contention,
the determination in People v Williams (24 NY3d 1129, 1132) does not
compel a different result.

     We reject respondent’s further contention that Supreme Court
erred in denying his motion to change the venue from Chautauqua County
to Bronx County on the ground that he could not receive a fair trial
in Chautauqua County because of the notoriety associated with his
criminal prosecution in 1999. As we explained in a prior appeal,
“[c]onclusory statements unsupported by facts are insufficient to
warrant a change of venue . . . [, and] respondent failed to make any
factual or evidentiary showing that he would be unable to obtain a
fair trial in Chautauqua County or that a transfer was necessary for
the convenience of the parties or witnesses” (Matter of State of New
York v Williams, 92 AD3d 1271, 1271-1272).

     Contrary to respondent’s contention, we conclude that, viewing
the evidence in the light most favorable to the petitioner (see Matter
of State of New York v John S., 23 NY3d 326, 348-349, rearg denied 24
NY3d 933), the evidence is legally sufficient to support the verdict
that he has a mental abnormality that predisposes him to the
commission of conduct constituting a sex offense and that results in
him having serious difficulty controlling that conduct (see Mental
Hygiene Law § 10.03 [i]). Petitioner’s two experts and respondent’s
expert agreed on the diagnosis of respondent with antisocial
personality disorder (ASPD). Petitioner’s experts also diagnosed
respondent with psychopathy, which they described as a condition
wherein respondent has the traits of ASPD to an extreme degree.
Respondent’s expert testified that, although he did a psychopathy
assessment, and his score was the same as one of petitioner’s experts
and higher than the other, he did not diagnose respondent with
psychopathy because it is not a diagnosis contained in the American
Psychiatric Association’s Diagnostic and Statistical Manual of Mental
Disorders. Petitioner’s experts each diagnosed respondent with sexual
preoccupation which, although not sufficient by itself to satisfy the
criteria for mental abnormality (see Matter of State of New York v
Kenneth W., 131 AD3d 872, 873), may nevertheless be part of a
“ ‘detailed psychological portrait’ ” that can be used to establish
mental abnormality (Matter of State of New York v Richard TT., 132
AD3d 72, 78, appeal dismissed 26 NY3d 994). Finally, each of
petitioner’s experts provided an additional diagnosis that the other
did not: one expert diagnosed respondent with polysubstance abuse,
and the other expert diagnosed him with sexual sadism. The latter
expert had considered the diagnosis of sexual sadism when he prepared
his report two years prior to the trial, but did not actually make the
diagnosis until he reviewed the trial testimony of a victim regarding
respondent’s violent and degrading treatment of her during an
attempted rape when she was 13 years old. The evidence also
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                                                         CA 14-00556

established that, in 1996, after he was advised that he was HIV-
positive, respondent, using charm and/or force, engaged in sexual
relations with 42 females, both adult women as well as girls under the
age of 14 years old, 13 of whom contracted the virus. Two inmates and
two correction officers testified that, inter alia, respondent stated
that he intended to continue that behavior upon his release,
specifically referencing underage girls. Furthermore, respondent
failed to complete sex offender treatment and had a poor prison
disciplinary record prior to 2006.

     Even assuming, arguendo, that the diagnosis of sexual sadism is
not supported by legally sufficient evidence, as respondent contends,
we nevertheless conclude that the diagnoses of ASPD, psychopathy,
sexual preoccupation, and polysubstance abuse, together with
respondent’s failure to complete sex offender treatment, his poor
prison disciplinary record, his pattern of sexual misconduct, both
with respect to the use of force and targeting underage girls, and his
stated intention to commit further sex offenses create a “ ‘detailed
psychological portrait’ ” of respondent that is legally sufficient to
support the verdict (Richard TT., 132 AD3d at 78; see John S., 23 NY3d
at 348-349; Matter of Wright v State of New York, 134 AD3d 1483, 1485-
1486; cf. Matter of State of New York v Donald DD., 24 NY3d 174, 190-
191). Indeed, we conclude that respondent is not simply a “dangerous
but typical recidivist convicted in an ordinary criminal case”
(Wright, 134 AD3d at 1487 [internal quotation marks omitted]; see
Donald DD., 24 NY3d at 189).

     We reject respondent’s contention that the court abused its
discretion in denying his motions seeking a mistrial based upon the
testimony of a witness regarding respondent’s violent attempted rape
of her when she was 13 years old. Respondent alleged in his first
motion that he was prejudiced by the undue surprise of the testimony
of that witness. We reject that contention inasmuch as the name of
the witness appeared on the witness list and, although petitioner had
not provided an offer of proof with respect to the witness pursuant to
the court’s determination of respondent’s motion in limine, respondent
did not object to the testimony until the court called a recess.
Thus, we conclude that the testimony of the witness did not constitute
unfair surprise warranting a mistrial (cf. People v Shaulov, 25 NY3d
30, 35-36; Hannon v Dunkirk Motor Inn, 167 AD2d 834, 834-835). We
conclude that the court did not abuse its discretion in denying
respondent’s subsequent motion seeking a mistrial on the ground that
his defense was discredited because respondent’s counsel stated in his
opening statement that there would be no evidence that respondent used
force when engaging in sexual activity. The expert’s report
supporting the petition referenced respondent’s use of force with
respect to other women, and thus respondent did not rely on assurances
from petitioner that there would be no evidence that respondent had
used such force (cf. Shaulov, 25 NY3d at 35-36).

     We reject respondent’s contention that he was denied a fair trial
by the improper admission of hearsay evidence through the testimony of
one of the petitioner’s experts. We note initially that, although
respondent made a motion in limine seeking to prohibit any testimony
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                                                         CA 14-00556

based on hearsay evidence, the court determined that it would have to
make determinations as such testimony was sought to be admitted, and
respondent failed to object to the testimony at trial (see generally
Matter of State of New York v Nervina, 120 AD3d 941, 942, lv granted
24 NY3d 1065). The expert testified that, in determining respondent’s
diagnoses, he considered a presentence investigation, which included
information that respondent was charged with a felony offense when he
was 17 or 18 years old, and he also considered materials from a police
investigation, which included information regarding one of the women
whom respondent allegedly forced to have sex. We conclude that the
evidence based on hearsay met the minimum requirements of reliability
and relevance (see Matter of State of New York v Floyd Y., 22 NY3d 95,
109). We also reject respondent’s contention that he was denied a
fair trial by misconduct during summation by petitioner’s counsel.
Respondent failed to object to the majority of the alleged instances
of misconduct, and thus failed to preserve for our review his
contention with respect to those instances (see Matter of State of New
York v Gierszewski, 81 AD3d 1473, 1474, lv denied 17 NY3d 702).
Although we agree with respondent that the attorney made some
inappropriate remarks, we conclude that “none of those remarks was ‘so
egregious or prejudicial as to deny respondent his right to a fair
trial’ ” (id.).

     Contrary to respondent’s contention, we conclude that he was not
denied meaningful representation, as assessed by the standards that
are applicable to counsel in criminal proceedings (see Matter of State
of New York v Campany, 77 AD3d 92, 98-99, lv denied 15 NY3d 713).
Respondent contends that there was no strategic or legitimate
explanation for his counsel to challenge the validity of respondent’s
HIV-positive diagnosis or to present evidence regarding the limited
risk of transmission of that virus by respondent to others based upon
the medical advances since respondent’s conviction in 1999. We reject
that contention and conclude that respondent’s attorney may have
decided, legitimately, to avail himself of those approaches in light
of the report of one of petitioner’s experts, submitted in support of
the petition, who referenced respondent’s condition as a “highly
infectious disease.” The record establishes that respondent’s
attorney provided zealous representation both before and during the
trial, and we therefore conclude that he received the meaningful
representation to which he was entitled (see Matter of State of New
York v Carter, 100 AD3d 1438, 1439; Campany, 77 AD3d at 99-100).

     We reject the contention of respondent in appeal No. 2 that the
court erred in denying his motion pursuant to CPLR 5015 (a) seeking to
vacate the order determining that he is a dangerous sex offender
requiring confinement. Contrary to respondent’s contention, the
decision of the Court of Appeals in Donald DD. (24 NY3d 174) does not
compel the conclusion that he does not have a mental abnormality as
defined by Mental Hygiene Law § 10.03 (i).


Entered:   May 6, 2016                          Frances E. Cafarell
                                                Clerk of the Court
