                            State of New York
                     Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: June 11, 2015                       519498
________________________________

In the Matter of SINCERE KK.,
                    Appellant,
      v                                       MEMORANDUM AND ORDER

STATE OF NEW YORK,
                    Respondent.
________________________________


Calendar Date:    April 29, 2015

Before:    Peters, P.J., Garry, Rose and Devine, JJ.

                               __________


      Sheila E. Shea, Mental Hygiene Legal Service, Albany
(Shannon Stockwell of counsel), for appellant.

      Eric T. Schneiderman, Attorney General, Albany (Kathleen M.
Treasure of counsel), for respondent.

                               __________


Rose, J.

      Appeal from an order of the Supreme Court (Demarest, J.),
entered February 3, 2014 in St. Lawrence County, which dismissed
petitioner's application, in a proceeding pursuant to Mental
Hygiene Law article 10, for his discharge from confinement at a
secure treatment facility.

      The facts underlying petitioner's convictions and
confinement to a secure treatment facility as a dangerous sex
offender are more fully set forth in our prior decision affirming
an order denying his release (Matter of Sincere KK. v State of
New York, 111 AD3d 1083 [2013], lv denied 22 NY3d 862 [2014]).
                              -2-                519498

After another year in the facility, petitioner again exercised
his right to petition for discharge (see Mental Hygiene Law
§ 10.09 [a]). Supreme Court held an evidentiary hearing at which
it received the report and testimony of Judy Scarpelli-Dwyer, a
psychiatric examiner for the Office of Mental Health. Following
the hearing, Supreme Court concluded that petitioner remained a
dangerous sex offender requiring confinement.

      Petitioner appeals, arguing that Scarpelli-Dwyer was not
credible and, therefore, respondent failed to submit clear and
convincing evidence that he has "an inability to control [his]
behavior" such 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 Michael M., 24 NY3d 649, 653 [2014]). We disagree.
Scarpelli-Dwyer's conclusion that petitioner lacked the ability
to control his behavior was based on, among other things, his
failure to advance beyond the first phase of treatment, his
refusal to admit his crimes or to be tested regarding his
attraction to children, and his continued aggressive, violent
behavior toward peers and staff members in the facility,
including inappropriate sexual comments and threats toward female
staff members. Defendant also scored as a high risk to reoffend
on actuarial assessments, presented no evidence contradicting
Scarpelli-Dwyer's testimony and failed to offer any insight into
his behavior. To the extent that petitioner claims that
Scarpelli-Dwyer improperly relied on hearsay statements, Supreme
Court accepted her report with the understanding that it would
not consider the unreliable hearsay in it, and there is nothing
in the record to suggest that the court improperly relied on any
such hearsay in making its factual findings (see Matter of State
of New York v Armstrong, 119 AD3d 1431, 1432 [2014]; Matter of
State of New York v Mark S., 87 AD3d 73, 80 [2011], lv denied 17
NY3d 714 [2011]). Based on our independent review of the record,
and deferring to Supreme Court's ability to evaluate the weight
and credibility of the expert's testimony (see Matter of State of
New York v Timothy EE., 97 AD3d 996, 998 [2012]; Matter of State
                              -3-                  519498

of New York v Kenneth BB., 93 AD3d 900, 902 [2012]), we find no
basis to disturb the court's determination that respondent is a
dangerous sex offender in need of confinement (see Matter of
State of New York v Barry W., 114 AD3d 1093, 1095-1096 [2014];
Matter of State of New York v Andrew D., 114 AD3d 1043, 1044
[2014]).

     Peters, P.J., Garry and Devine, JJ., concur.




     ORDERED that the order is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
