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

754
CA 13-00565
PRESENT: SMITH, J.P., CENTRA, CARNI, WHALEN, AND DEJOSEPH, JJ.


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

                    V                             MEMORANDUM AND ORDER

BRANDON ARMSTRONG, RESPONDENT-APPELLANT.


EMMETT J. CREAHAN, DIRECTOR, MENTAL HYGIENE LEGAL SERVICE, BUFFALO
(MARGOT S. BENNETT 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, Niagara County
(Richard C. Kloch, Sr., A.J.), entered March 14, 2013 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. In response to respondent’s motion in limine seeking to
preclude petitioner from calling two experts to testify on the ground
that it would be cumulative, Supreme Court held that only one of the
experts could give an opinion. During the ensuing nonjury trial, two
psychologists testified on petitioner’s behalf. The record
establishes that the first psychologist’s testimony included hearsay
statements made by an official from the Department of Corrections and
Community Supervision, respondent’s probation officer, and
respondent’s parents concerning, inter alia, respondent’s commission
of uncharged sex offenses, violations of probation, and violations of
prison rules while incarcerated, all of which respondent admitted
during his interviews with the first and second psychologist. After
the first psychologist concluded his testimony without giving an
opinion, respondent moved to strike the testimony on the ground that
the first psychologist should not have been allowed to recite hearsay
testimony without offering an opinion thereon. Under the
circumstances of this case, we conclude that any error was harmless
inasmuch as the court’s determination was supported by the testimony
and opinion of the second psychologist (cf. Matter of State of New
York v Floyd Y., 22 NY3d 95, 109-110; see generally Matter of State of
                                 -2-                           754
                                                         CA 13-00565

New York v Charada T., ___ NY3d ___ [May 8, 2014]).

     To the extent that respondent contends that the hearsay
statements to which the first psychologist testified were improperly
used as an evidentiary basis for the second psychologist’s opinion,
that contention is belied by the record. The second psychologist
never testified that, in formulating his own opinion, he relied on the
first psychologist’s testimony. Although the second psychologist may
have used the report of the first psychologist, in part, to formulate
his opinions, the record is devoid of any specific objection to the
use of the report or any of the other documentary evidence utilized by
the second psychologist. We note, too, that the first psychologist’s
report was already before the court pursuant to the procedure set
forth in Mental Hygiene Law § 10.06 (d), and that the court is
presumed to have properly given any hearsay statements therein their
limited legal significance in making its factual findings (see Matter
of State of New York v Mark S., 87 AD3d 73, 80). We have considered
respondent’s remaining contention regarding hearsay testimony of the
first psychologist and conclude that it is without merit (see Charada
T., ___ NY3d at ___; Matter of State of New York v John S., ___ NY3d
___ [May 8, 2014]).

     Contrary to respondent’s contention, we conclude that petitioner
met its burden of establishing by clear and convincing evidence that
respondent suffers from a “[m]ental abnormality” as that term is
defined in Mental Hygiene Law § 10.03 (i) (see Matter of State of New
York v Pierce, 79 AD3d 1779, 1779-1780, lv denied 16 NY3d 712; Matter
of State of New York v Timothy JJ., 70 AD3d 1138, 1140), and that he
is a dangerous sex offender requiring confinement (see § 10.07 [f];
Matter of State of New York v Blair, 87 AD3d 1327, 1327; Matter of
State of New York v Boutelle, 85 AD3d 1607, 1607). Contrary to
respondent’s further contention, the court was not “required to
specifically address the issue of a less restrictive alternative” to
civil confinement when it rendered its disposition (Matter of State of
New York v Gooding, 104 AD3d 1282, 1282, lv denied 21 NY3d 862; see
Matter of Enrique T., 93 AD3d 158, 166-167, lv dismissed 18 NY3d 976).

     Finally, we conclude that the court properly denied respondent’s
motion to dismiss the petition. The petition contained sufficient
“statements alleging facts of an evidentiary character tending to
support the allegation that the respondent is a sex offender requiring
civil management” (Mental Hygiene Law § 10.06 [a]).




Entered:   July 11, 2014                        Frances E. Cafarell
                                                Clerk of the Court
