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

666
CA 12-01496
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, SCONIERS, AND DEJOSEPH, JJ.


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

                     V                                MEMORANDUM AND ORDER

ANTHONY NERVINA, RESPONDENT-APPELLANT.
(APPEAL NO. 1.)


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

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


     Appeal from an order of    the Supreme Court, Orleans County (James
P. Punch, A.J.), entered July   17, 2012 in a proceeding pursuant to Mental
Hygiene Law article 10. The     order, among other things, determined that
respondent is a detained sex    offender requiring civil management.

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

     Memorandum: In appeal No. 1, respondent appeals from an order
determining that he is a dangerous sex offender requiring civil management
pursuant to Mental Hygiene Law article 10. The jury found that respondent
was sexually motivated in committing the crime of attempted burglary in
the second degree and that he suffers from a mental abnormality (see '
10.03 [i]; see also Penal Law ' 140.25 [2]). In appeal No. 2, respondent
appeals from an order revoking his prior regimen of strict and intensive
supervision and treatment (SIST), determining that he is a dangerous sex
offender requiring confinement, and committing him to a secure treatment
facility. We affirm in both appeals.

     With respect to appeal No. 1, we note that the court declined to
rule on that part of respondent=s pretrial motion to preclude hearsay
evidence and expressly directed respondent to raise appropriate objections
at the time of trial, which respondent failed to do. This case is therefore
distinguishable from Matter of State of New York v Bass (___ AD3d ___
[July 3, 2014]), in which the respondent=s hearsay contention was preserved
because the court expressly denied the respondent=s motion in limine to
preclude evidence on that ground. We therefore conclude that respondent=s
contention that his due process rights were violated when petitioner=s
experts provided testimony about the hearsay evidence that formed the
basis of their opinions is unpreserved for our review (see Matter of State
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                                                                CA 12-01496

of New York v Wilkes [appeal No. 2], 77 AD3d 1451, 1452), and we decline
to exercise our power to review that contention in the interest of justice
(see Matter of State of New York v Muench, 85 AD3d 1581, 1582). Contrary
to respondent=s contention, the recent decision from the Court of Appeals
in People v Finch (___ NY3d ___ [May 13, 2014]) does not support his position
that, because he objected to hearsay presented at the subsequent SIST
violation hearing, he preserved his contention regarding hearsay presented
at the previous jury trial. The Court of Appeals held in Finch that Aa
lawyer is not required, in order to preserve a point, to repeat an argument
that the court has definitively rejected@ (id. at ___ [emphasis added]).
 The Court did not hold that an attorney=s objection at a later proceeding
preserves for appellate review an alleged error in an earlier proceeding.

      We reject respondent=s further contention in appeal No. 1 that the
jury=s determination that the underlying crime was sexually motivated is
against the weight of the evidence (see Matter of State of New York v
Trombley, 98 AD3d 1300, 1301, lv denied 20 NY3d 856). To the extent that
respondent contends that the evidence was legally insufficient to
establish sexual motivation, we also reject that contention. Petitioner=s
evidence presented a valid line of reasoning and permissible inferences
that could lead a rational jury to the conclusion that respondent committed
the underlying offense Ain whole or in substantial part for the purpose
of [his] direct sexual gratification@ (Mental Hygiene Law ' 10.03 [s];
see Matter of State of New York v Farnsworth, 107 AD3d 1444, 1445).

      We reject respondent=s further contention in appeal No. 1 that the
jury=s verdict with respect to mental abnormality is against the weight
of the evidence. Although respondent=s expert witness testified that
respondent did not suffer from a mental abnormality, the jury=s verdict
is entitled to deference, and we conclude that Athe evidence does not
preponderate[] so greatly in [respondent=s] favor that the jury could not
have reached its conclusion on any fair interpretation of the evidence@
(Matter of State of New York v Gierszewski, 81 AD3d 1473, 1474, lv denied
17 NY3d 702 [internal quotation marks omitted]). Respondent=s further
contention in appeal No. 1 that the personality disorders with which
petitioner=s expert witnesses diagnosed him cannot serve as the basis for
a finding of mental abnormality is without merit (see Matter of State
of New York v Donald DD., 107 AD3d 1062, 1063-1064, lv granted 21 NY3d
866). The Mental Hygiene Law does not require that the underlying
Acondition, disease, or disorder@ serving as the basis for a finding of
mental abnormality have a sexual component to its diagnosis; rather, the
law requires only that the underlying Acondition, disease or disorder@
affect respondent Ain 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]).
Here, both of petitioner=s expert witnesses testified that the personality
disorders with which they diagnosed respondent predisposed him to commit
sex offenses and resulted in respondent=s serious difficulty in controlling
his behavior.

     Contrary to respondent=s contention in appeal No. 2, we conclude that,
at the hearing regarding respondent=s alleged violation of his SIST
conditions, petitioner established by clear and convincing evidence that
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                                                             CA 12-01496

respondent is a dangerous sex offender requiring confinement (see Mental
Hygiene Law '' 10.03 [e]; 10.07 [f]). Finally, we reject respondent=s
further contention in appeal No. 2 that Athe court was required to
specifically address the issue of a less restrictive alternative@ (Matter
of State of New York v Gooding, 104 AD3d 1282, 1282, lv denied 21 NY3d
862).




Entered:   August 8, 2014                        Frances E. Cafarell
                                                 Clerk of the Court
