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

1268
CA 15-01438
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, NEMOYER, AND SCUDDER, JJ.


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

                    V                             MEMORANDUM AND ORDER

JEDEDIAH HUSTED, RESPONDENT-APPELLANT.


EMMETT J. CREAHAN, DIRECTOR, MENTAL HYGIENE LEGAL SERVICE, ROCHESTER
(LISA L. PAINE OF COUNSEL), FOR RESPONDENT-APPELLANT.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (ALLYSON B. LEVINE OF
COUNSEL), FOR PETITIONER-RESPONDENT.


     Appeal from an order of the Supreme Court, Ontario County (Craig
J. Doran, A.J.), entered July 22, 2015 in a proceeding pursuant to
Mental Hygiene Law article 10. The order, inter alia, granted the
petition and determined that respondent violated the conditions of
strict and intensive supervision and that he is a dangerous sex
offender requiring confinement.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the petition is denied,
and the matter is remitted to Supreme Court, Ontario County, for
further proceedings in accordance with the following memorandum:
Respondent appeals from an order that, inter alia, granted the
petition and determined that he violated the conditions of strict and
intensive supervision (SIST) imposed on May 31, 2011 and that he is a
dangerous sex offender requiring confinement. We agree with
respondent that the evidence is not legally sufficient to establish,
by clear and convincing evidence (see Mental Hygiene Law § 10.07 [f]),
that he required confinement pursuant to Mental Hygiene Law article
10.

     The evidence at the hearing established that respondent violated
the terms and conditions of SIST by using alcohol in November 2013 and
marihuana in December 2014 and February 2015, and by being discharged
from sex offender treatment. We note, however, that respondent’s
treatment provider testified that his discharge from treatment was
based solely on his substance abuse violations, that he was otherwise
appropriately engaged in treatment, and that she was willing to accept
him in treatment again. The evidence also established that respondent
had been diagnosed with antisocial personality disorder, alcohol use
disorder and cannabis use disorder.

     As the Court of Appeals made clear in Matter of State of New York
                                 -2-                          1268
                                                         CA 15-01438

v Michael M. (24 NY3d 649, 658-659), the statutory definitions of a
dangerous sex offender requiring confinement (see Mental Hygiene Law
§ 10.03 [e]) and a sex offender requiring strict and intensive
supervision (see § 10.03 [r]) “clearly envisage[] a distinction
between sex offenders who have difficulty controlling their sexual
conduct and those who are unable to control it. The former are to be
supervised and treated as ‘outpatients’ and only the latter may be
confined” (Michael M., 24 NY3d at 659). Here, viewing the evidence in
the light most favorable to petitioner, we conclude that the evidence
was “insufficient to support the trial court’s finding that respondent
had 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 to a
secure treatment facility” (id. at 660). Indeed, it is undisputed
that the alleged violations of respondent’s SIST conditions related
solely to his use of alcohol and marihuana, and not to any alleged
sexual conduct (see id. at 659). We therefore reverse the order, deny
the petition, and remit the matter to Supreme Court for further
proceedings. Respondent failed to preserve for our review his
contention that he was denied due process based on the lack of legally
sufficient evidence that he is a dangerous sex offender requiring
confinement and, in light of our determination, we decline to reach
that contention.

     We reject respondent’s contention that the court erred in failing
to consider a less restrictive alternative to confinement inasmuch as
there is no requirement that the court do so (see Matter of State of
New York v Parrott, 125 AD3d 1438, 1439-1440, lv denied 25 NY3d 911;
see generally Michael M., 24 NY3d at 657-658). Respondent’s
contention that he should be permitted to appear anonymously in this
proceeding is not properly before us inasmuch as we previously denied
such an application from respondent, and he failed to move for leave
to renew or reargue that determination (see Matter of State of New
York v Smith [appeal No. 1], ___ AD3d ___, ___ [Dec. 23, 2016]).




Entered:   December 23, 2016                    Frances E. Cafarell
                                                Clerk of the Court
