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

814
CA 10-01352
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, AND SCONIERS, JJ.


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

                    V                             MEMORANDUM AND ORDER

SHANNON STEIN, RESPONDENT-APPELLANT.


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

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (KATHLEEN M. TREASURE
OF COUNSEL), FOR PETITIONER-RESPONDENT.


     Appeal from an order of the Supreme Court, Chautauqua County
(Timothy J. Walker, A.J.), entered June 23, 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 in which Supreme Court determined, following a
nonjury trial, that he has a mental abnormality that predisposes him
to committing sex offenses (see Mental Hygiene Law § 10.03 [i]), and
directed that he be committed to a secure treatment facility. We
reject respondent’s contention that the court improperly assumed the
role of an advocate when it sua sponte reopened the proof at the
conclusion of the mental abnormality phase of the trial, inasmuch as
the court stated on the record that additional evidence was required
in order to clarify hearsay issues, particularly with respect to
collateral interviews conducted by one of the psychologists (see
generally People v Arnold, 98 NY2d 63, 68). We further note that the
court stated that it would allow respondent’s expert to provide a
supplemental report and supplemental testimony taking into account the
new testimony. Also contrary to respondent’s contention, the evidence
is legally sufficient to support the court’s determination that he
suffers from a mental abnormality within the meaning of Mental Hygiene
Law § 10.03 (i) (see Matter of State of New York v Gierszewski, 81
AD3d 1473). According to the testimony of two psychologists presented
by petitioner, respondent suffers from paraphilia not otherwise
specified, which predisposes him to committing sexual offenses, and
that he has had serious difficulty controlling that sexual conduct.
Petitioner thus established by clear and convincing evidence that
                                 -2-                           814
                                                         CA 10-01352

respondent suffers from “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
[respondent] having serious difficulty in controlling such conduct” (§
10.03 [i]; see Gierszewski, 81 AD3d at 1473).

      We further conclude that the court’s determination that
respondent suffers from a mental abnormality within the meaning of the
statute is not against the weight of the evidence. The evidence
presented by respondent that conflicted with that presented by
petitioner merely raised a credibility issue for the court to resolve,
and its determination is entitled to great deference given its
“opportunity to evaluate [first-hand] the weight and credibility of
[the] conflicting expert testimony” (Matter of State of New York v
Chrisman, 75 AD3d 1057, 1058). Upon our review of the record, we
conclude that the evidence does not “ ‘preponderate[] so greatly in
[respondent’s] favor that the [court] could not have reached its
conclusion on any fair interpretation of the evidence’ ” (Matter of
State of New York v Shawn X., 69 AD3d 165, 169, lv denied 14 NY3d
702).

     Contrary to respondent’s further contention, the evidence is
legally sufficient to support the determination that he requires
confinement. Petitioner’s two psychologists testified at the
dispositional phase of the trial that respondent had multiple
compliance problems in the past both with probation and parole and
that he was likely to recidivate if released from custody. Petitioner
thus established by the requisite clear and convincing evidence that
respondent “has a mental abnormality involving such a strong
predisposition to commit sex offenses, and such an inability to
control behavior, that the respondent 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]; see Matter of
State of New York v Craig T., 77 AD3d 1062, 1063). Respondent’s
contention regarding the order issued following the probable cause
hearing is not properly before us because no appeal lies from such an
order (see § 10.13 [b]). We have considered respondent’s remaining
contention and conclude that it is without merit.




Entered:   June 10, 2011                        Patricia L. Morgan
                                                Clerk of the Court
