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

240
CA 16-00137
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, DEJOSEPH, AND SCUDDER, JJ.


IN THE MATTER OF THE APPLICATION FOR DISCHARGE
OF LEROY PIERCE, CONSECUTIVE NO. 265463, 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.


EMMETT J. CREAHAN, DIRECTOR, MENTAL HYGIENE LEGAL SERVICE, UTICA
(MICHAEL F. HIGGINS OF COUNSEL), FOR PETITIONER-APPELLANT.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (FRANK BRADY OF
COUNSEL), FOR RESPONDENTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Oneida County (Joseph
E. Fahey, A.J.), entered December 22, 2015 in a proceeding pursuant to
Mental Hygiene Law article 10. The order, among other things,
continued petitioner’s commitment to a secure treatment facility.

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

     Memorandum: In this proceeding pursuant to Mental Hygiene Law
article 10, petitioner appeals from an order, entered after an annual
review hearing (§ 10.09 [d]), determining that he is a dangerous sex
offender requiring confinement under section 10.03 (e) and directing
that he continue to be confined to a secure treatment facility (see
§ 10.09 [h]). We affirm.

     Petitioner contends that the evidence is legally insufficient to
support the finding that he is a dangerous sex offender requiring
confinement within the meaning of the statute because the evidence
presented by respondents failed to establish that he has such an
inability to control his behavior that he was likely to be a danger to
others and to commit sex offenses if not confined (see Mental Hygiene
Law § 10.03 [e]). We reject that contention. Here, respondents’
expert conducted a psychiatric examination in anticipation of
petitioner’s annual review hearing and issued a report pursuant to
Mental Hygiene Law § 10.09 (b) that, among other things, documented
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                                                         CA 16-00137

petitioner’s history of criminal sexual conduct against female
teenagers and children; indicated that petitioner suffered from
conditions including pedophilic disorder; noted that petitioner
minimized and avoided his deviant sexual attraction to children in
favor of explaining that his offenses resulted from his seeking
emotional gratification; and reviewed the actuarial tests and dynamic
factors that resulted in an assessment of petitioner’s recidivism risk
as “moderate-high.” Petitioner’s independent psychiatric examiner
initially agreed with respondents’ expert that petitioner was a
dangerous sex offender requiring confinement, and the proceeding was
stayed for a significant period of time until petitioner sought a
hearing after his examiner issued an addendum indicating that, upon
review of petitioner’s most recent treatment records, he no longer
required confinement.

     Respondents’ expert explained at the hearing conducted two years
after she issued her initial report that, although petitioner had
declined to be re-interviewed by her, she updated her information
through a conversation with petitioner’s treatment providers and a
review of petitioner’s service plans and progress notes covering the
intervening period. Respondents’ expert concluded that, even after
the additional treatment while confined, petitioner remained unable to
control his sex-offending behaviors based upon, among other things,
his history of sex crimes and violations when released to the
community; his chronic pedophilic disorder that he had not adequately
addressed in treatment through comprehensive discussion of all of his
offenses; his difficulty identifying why he gravitated to children for
sexual gratification as opposed to adults; his display of cognitive
distortions in referring to his offenses; and his failure to address
and understand all components of his offense cycle given his lack of
focus on his fantasies and sexual arousal to children (see Matter of
Wright v State of New York, 134 AD3d 1483, 1486-1487; see generally
Matter of State of New York v Walter W., 94 AD3d 1177, 1179, lv denied
19 NY3d 810).

     With respect to petitioner’s offense cycle, respondents’ expert
was particularly concerned that petitioner had focused exclusively on
his teenage victims and that his intervention strategies were
inapplicable to his child victims, especially those who were strangers
to him. As petitioner correctly notes, respondents’ expert
acknowledged that a recent service plan by petitioner’s treatment
providers indicated that petitioner’s goal of addressing his sexual
deviance and emotional identification had been achieved and
discontinued. Respondents’ expert further explained, however, that
the progress notes in the service plan indicated that petitioner had
gained insight only with respect to his sexual misconduct against
teenagers and he had not adequately addressed his sexual deviance
against children, including all of his younger victims, and the
service plan was subsequently amended to reinstate petitioner’s goal
of adequately addressing his sexual deviance.

     Contrary to petitioner’s further contention, additional factors
including his recidivism risk, with which his own examiner agreed even
after accounting for petitioner’s increase in age, indicated that
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                                                         CA 16-00137

petitioner would not be able to comply with the rules of the strict
and intensive supervision and treatment program (see Matter of State
of New York v Robert F., 25 NY3d 448, 454-455; Matter of State of New
York v Breeden, 140 AD3d 1649, 1650).

     Thus, 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 Robert F., 25 NY3d at 454-455;
Matter of Billinger v State of New York, 137 AD3d 1757, 1758, lv
denied 27 NY3d 911).

     Petitioner further contends that the determination is against the
weight of the evidence because respondents’ expert interfered with the
treatment providers’ assessment of petitioner’s progress, and her
opinion was inconsistent with petitioner’s treatment notes and the
opinion of petitioner’s expert that he did not require confinement.
We reject that contention.

     Respondents’ expert explained that she was concerned with the
recent change in petitioner’s service plan discontinuing his goal of
addressing his criminogenic need of sexual deviance, and thus chose to
conference with petitioner’s treatment providers to determine the
reason for the change, particularly because petitioner had not
consented to a re-interview with her, and the clinical notes indicated
that petitioner had been focused on his teenage victims rather than
incorporating each of his child victims into his treatment.
Respondents’ expert also explained that she had no ability to request
an updated service plan and that the treatment providers had, upon
additional review, determined prior to the conference that they should
not have discontinued the goal addressing sexual deviance. The
evidence established that the treatment providers subsequently issued
an amended service plan indicating that petitioner needed to continue
exploring his offense history in order to identify his attraction to
younger children and the offending patterns associated with each
victim, and to develop substantial interventions that would ensure his
safe presence in the community.

     The court was in the best position to evaluate the weight and
credibility of this evidence and the conflicting expert testimony at
the hearing and, upon review of the record as a whole and in light of
her explanations, we see no reason to disturb the court’s decision to
credit the testimony of respondents’ expert that petitioner remains a
dangerous sex offender requiring confinement (see Matter of State of
New York v Parrott, 125 AD3d 1438, 1439, lv denied 25 NY3d 911; see
also Matter of Sincere KK. v State of New York, 129 AD3d 1254, 1255,
lv denied 26 NY3d 906; Matter of State of New York v Barry W., 114
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                                           CA 16-00137

AD3d 1093, 1095).




Entered:   March 24, 2017         Frances E. Cafarell
                                  Clerk of the Court
