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

1034
CA 13-00483
PRESENT: SMITH, J.P., PERADOTTO, VALENTINO, WHALEN, AND DEJOSEPH, JJ.


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

                    V                               MEMORANDUM AND ORDER

STEVEN DECAPUA, RESPONDENT-APPELLANT.


KEVIN J. BAUER, ALBANY, 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 February 25, 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 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 (see Mental Hygiene
Law § 10.01 et seq.). Respondent concedes that he suffers from a
“mental abnormality” and that he violated a SIST condition by
possessing medication for erectile dysfunction, i.e., the drug Cialis
(§ 10.03 [e]; see §§ 10.07 [f]; 10.11 [d] [1], [4]). He contends,
however, that the evidence is legally insufficient to establish that
he is a dangerous sex offender, and that the court’s determination to
that effect is against the weight of the evidence. We reject that
contention. Supreme Court “was not limited to considering only the
facts of the SIST violations” that prompted this revocation proceeding
but, rather, it was entitled to “rely on all the relevant facts and
circumstances tending to establish that respondent was a dangerous sex
offender,” such as his underlying offenses and past SIST violations
(Matter of State of New York v Motzer, 79 AD3d 1687, 1688; see Matter
of State of New York v Matter, 103 AD3d 1113, 1114). Upon our review
of the record, we conclude that petitioner established by clear and
convincing evidence that respondent is a dangerous sex offender
requiring confinement, and the court did not err in crediting the
testimony of petitioner’s expert over that of respondent’s expert (see
Matter of State of New York v Adkison, 108 AD3d 1050, 1052; Motzer, 79
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                                            CA 13-00483

AD3d at 1688).




Entered:   October 3, 2014         Frances E. Cafarell
                                   Clerk of the Court
