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

852
CA 13-00659
PRESENT: SCUDDER, P.J., SMITH, CENTRA, FAHEY, AND PERADOTTO, JJ.


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

                    V                             MEMORANDUM AND ORDER

ROY CASTLEBERRY, RESPONDENT-APPELLANT.


MICHAEL J. STACHOWSKI, P.C., BUFFALO (MICHAEL J. STACHOWSKI OF
COUNSEL), FOR RESPONDENT-APPELLANT.

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


     Appeal from an order of the Supreme Court, Erie County (John L.
Michalski, A.J.), entered August 13, 2012 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 contends that the admission of “hearsay basis
evidence” from petitioner’s experts deprived him of a fair trial and
violated his constitutional right to due process (Matter of State of
New York v Floyd Y., 22 NY3d 95, 109). Inasmuch as respondent did not
object to any of the allegedly improper evidence, we conclude that he
failed to preserve his contention for our review (see Matter of State
of New York v Muench, 85 AD3d 1581, 1582; Matter of State of New York
v Wilkes [appeal No. 2], 77 AD3d 1451, 1452). We decline to exercise
our power to review that contention in the interest of justice (see
Muench, 85 AD3d at 1582).

     Respondent’s challenge to the reliability of the actuarial
assessment instruments used by petitioner’s expert is actually a
challenge “to the weight of that evidence rather than its
admissibility” (Matter of State of New York v Timothy EE., 97 AD3d
996, 998; see Matter of State of New York v High, 83 AD3d 1403, 1403-
1404, lv denied 17 NY3d 704). “Supreme Court was in the best position
to evaluate the weight and credibility of the conflicting
[psychological and] psychiatric testimony presented . . . After
independently reviewing the evidence presented at the dispositional
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                                                         CA 13-00659

hearing and according appropriate deference to the court’s decision to
credit the opinion of [petitioner’s expert] over that of [respondent’s
expert] . . . , we find no basis to disturb [the court’s]
determination that respondent was a dangerous sex offender requiring
confinement” (Matter of State of New York v Timothy JJ., 70 AD3d 1138,
1144-1145; see Matter of State of New York v Trombley, 98 AD3d 1300,
1301, lv denied 20 NY3d 856; Timothy EE., 97 AD3d at 999).




Entered:   September 26, 2014                  Frances E. Cafarell
                                               Clerk of the Court
