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

381
CA 14-01808
PRESENT: CENTRA, J.P., CARNI, DEJOSEPH, CURRAN, AND SCUDDER, JJ.


IN THE MATTER OF THE APPLICATION FOR DISCHARGE
OF DANIEL VEGA, CONSECUTIVE NO. 48447, FROM
CENTRAL NEW YORK PSYCHIATRIC CENTER PURSUANT TO
MENTAL HYGIENE LAW SECTION 10.09,
PETITIONER-APPELLANT,

                    V                             MEMORANDUM AND ORDER

STATE OF NEW YORK, NEW YORK STATE OFFICE OF
MENTAL HEALTH AND NEW YORK STATE DEPARTMENT OF
CORRECTIONS AND COMMUNITY SUPERVISION,
RESPONDENTS-RESPONDENTS.
(APPEAL NO. 1.)


EMMETT J. CREAHAN, DIRECTOR, MENTAL HYGIENE LEGAL SERVICE, UTICA
(PATRICK T. CHAMBERLAIN OF COUNSEL), FOR PETITIONER-APPELLANT.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (JONATHAN D. HITSOUS OF
COUNSEL), FOR RESPONDENTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Oneida County (Joseph
E. Fahey, A.J.), entered September 5, 2014 in a proceeding pursuant to
Mental Hygiene Law article 10. The order, among other things,
directed that petitioner shall continue to be committed to a secure
treatment facility.

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

     Memorandum: In appeal No. 1, petitioner appeals from an order,
entered after an annual review hearing pursuant to Mental Hygiene Law
§ 10.09 (d), determining that he currently suffers from a mental
abnormality as defined by section 10.03 (i) and directing that
petitioner continue to be confined to a secure treatment facility (see
§ 10.09 [h]). In appeal No. 2, petitioner appeals from an order,
which, among other things, denied petitioner’s motion pursuant to CPLR
5015 (a) to vacate the order that is the subject of appeal No. 1. We
affirm in both appeals.

     We reject petitioner’s contention that the evidence is not
legally sufficient to show “a congenital or acquired condition,
disease or disorder that affects the emotional, cognitive, or
volitional capacity of a person in a manner that predisposes him or
her to the commission of conduct constituting a sex offense” (Mental
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                                                         CA 14-01808

Hygiene Law § 10.03 [i]). Although it is well established that a
diagnosis of antisocial personality disorder (ASPD) is, by itself,
“insufficient, as a matter of law, to support a ‘mental abnormality’
finding” (Matter of Groves v State of New York, 124 AD3d 1213, 1214),
here, both respondents’ expert and petitioner’s expert agreed that
petitioner had a mental abnormality—specifically, that petitioner had
diagnoses of ASPD, alcohol and cocaine dependency, and psychopathic
traits along with a history of sexual preoccupation. Moreover,
respondents’ expert indicated that petitioner exhibited “sexually
sadistic behavioral indicators.” Considering the evidence in the
light most favorable to respondents (see Matter of State of New York v
John S., 23 NY3d 326, 348, rearg denied 24 NY3d 933), we conclude that
there is sufficient evidence of petitioner’s diagnosis of ASPD, along
with sufficient evidence of other diagnoses and/or conditions, to
sustain a finding of mental abnormality (see § 10.03 [i]; Matter of
State of New York v Williams, ___ AD3d ___ [May 6, 2016]; Matter of
State of New York v Ian I., 127 AD3d 766, 767-768).

     Petitioner failed to preserve for our review his contention that
the evidence is not legally sufficient to establish that he has
serious difficulty in controlling or an inability to control his
sexual misconduct inasmuch as he did not move for a directed verdict
pursuant to CPLR 4401 or challenge the sufficiency of the evidence on
those points in any other way (see Matter of State of New York v David
S., 136 AD3d 445, 447). In any event, upon our review of the record,
we conclude that respondents established by the requisite clear and
convincing evidence that petitioner “suffer[s] from a mental
abnormality involving such a strong predisposition to commit sex
offenses, and such an inability to control behavior, 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 § 10.03
[e]; see Matter of State of New York v Floyd Y., 135 AD3d 70, 72-75;
Matter of Richard TT., 132 AD3d 72, 76-78, lv granted __ NY3d __
[argued May 31, 2016]).

     We reject petitioner’s further contention that the determination
is against the weight of the evidence. Supreme Court “was in the best
position to evaluate the weight and credibility of the conflicting
[expert] testimony presented . . . , and we see no reason to disturb
the court’s decision to credit the testimony of [respondents’]
expert[]” (Matter of State of New York v Parrott, 125 AD3d 1438, 1439,
lv denied 25 NY3d 911 [internal quotation marks omitted]).

     Finally, petitioner contends that he is entitled to a new hearing
because the court violated his due process rights when it rejected his
request to remove his shackles and then failed to provide a reasonable
justification for the same. Although the court erred in failing to
provide a “ ‘particularized reason for [restraining petitioner] on the
record’ ” (People v Ashline, 124 AD3d 1258, 1259), we conclude that
the error is “harmless beyond a reasonable doubt because the error did
not contribute” to the determination herein (People v Campbell, 106
AD3d 1507, 1509, lv denied 21 NY3d 1002 [internal quotation marks
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                                          CA 14-01808

omitted]).




Entered:   June 10, 2016         Frances E. Cafarell
                                 Clerk of the Court
