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

735
CA 10-01491
PRESENT: SMITH, J.P., FAHEY, CARNI, LINDLEY, AND GORSKI, JJ.


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

                     V                            MEMORANDUM AND ORDER

LERRYL SMITH, RESPONDENT-APPELLANT.


EMMETT J. CREAHAN, DIRECTOR, MENTAL HYGIENE LEGAL SERVICE, BUFFALO
(KEVIN S. DOYLE OF COUNSEL), FOR RESPONDENT-APPELLANT.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (MICHAEL CONNOLLY OF
COUNSEL), FOR PETITIONER-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (John L.
Michalski, A.J.), entered April 30, 2010 in a proceeding pursuant to
Mental Hygiene Law article 10. The order 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 determining that he
is a dangerous sex offender requiring confinement pursuant to Mental
Hygiene Law article 10 and committing him to a secure treatment
facility. We reject respondent’s contention that petitioner failed to
establish by clear and convincing evidence at the dispositional
hearing that “respondent is likely to be a danger to others and to
commit sex offenses if not confined to a secure treatment facility” (§
10.07 [f]). We are “[m]indful that Supreme Court was in the best
position to evaluate the weight and credibility of the conflicting
psychiatric testimony presented . . ., [and] we defer to the court’s
decision to credit [the testimony of petitioner’s] expert” (Matter of
State of New York v Pierce, 79 AD3d 1779, 1781, lv denied 16 NY3d 712
[internal quotation marks omitted]; see Matter of State of New York v
Motzer, 79 AD3d 1687, 1688).




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