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

785
CA 15-00410
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, CURRAN, AND TROUTMAN, JJ.


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

                    V                             MEMORANDUM AND ORDER

CHRISTOPHER BUSHEY, RESPONDENT-APPELLANT.


EMMETT J. CREAHAN, DIRECTOR, MENTAL HYGIENE LEGAL SERVICE, UTICA
(BRYCE R. THERRIEN OF COUNSEL), FOR RESPONDENT-APPELLANT.

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


     Appeal from an order of the Supreme Court, Oneida County (Patrick
F. MacRae, J.), entered January 28, 2015 in a proceeding pursuant to
Mental Hygiene Law article 10. The order, inter alia, determined that
respondent is a dangerous sex offender requiring confinement and
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 and committing him
to a secure treatment facility (see Mental Hygiene Law § 10.01 et
seq.). Respondent failed to preserve for our review his contentions
that the evidence is not legally sufficient to establish that he has a
mental abnormality or that he has an inability to control his sexual
misconduct inasmuch as he did not move for a directed verdict or
otherwise challenge the sufficiency of the evidence on those points
(see Matter of Vega v State of New York, 140 AD3d 1608, 1609). In any
event, respondent’s contentions lack merit. Petitioner presented a
“detailed psychological portrait of a sex offender [that] would
doubtless allow an expert to determine the level of control the
offender has over his sexual conduct” (Matter of State v Donald DD.,
24 NY3d 174, 188; see generally Matter of State of New York v Dennis
K., 27 NY3d 718, 734-735). Here, petitioner’s two expert witnesses
testified that: respondent suffers from pedophilia and antisocial
personality disorder with psychopathic traits; respondent refused to
admit that he was sexually attracted to children and, as a result, his
sex offender treatment program was not geared toward his particular
conditions; respondent failed to develop a relapse prevention program;
and respondent presents a significant risk of committing sex offenses
in the future. We therefore conclude that petitioner met its burden
                                 -2-                           785
                                                         CA 15-00410

of establishing by clear and convincing evidence that respondent has
“a congenital or acquired condition, disease or disorder that affects
[his] emotional, cognitive, or volitional capacity . . . in a manner
that predisposes him . . . to the commission of conduct constituting a
sex offense and that results in [him] having serious difficulty in
controlling such conduct” (§ 10.03 [i]; see Matter of State of New
York v Gierszewski, 81 AD3d 1473, 1473, lv denied 17 NY3d 702; see
generally Dennis K., 27 NY3d at 734-735). We further conclude that
petitioner met its burden of establishing by clear and convincing
evidence that respondent “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” (§ 10.03 [e]; see Matter of Billinger v
State of New York, 137 AD3d 1757, 1758).




Entered:   September 30, 2016                   Frances E. Cafarell
                                                Clerk of the Court
