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

949
CA 15-01830
PRESENT: WHALEN, P.J., CENTRA, CARNI, CURRAN, AND TROUTMAN, JJ.


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

                    V                             MEMORANDUM AND ORDER

LERRYL SMITH, RESPONDENT-APPELLANT.
(APPEAL NO. 1.)


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

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


     Appeal from an order of the Supreme Court, Erie County (John L.
Michalski, A.J.), entered August 18, 2015 in a proceeding pursuant to
Mental Hygiene Law article 10. The order, among other things,
directed that respondent be confined in a secure treatment facility.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: In appeal No. 1, 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.). In appeal No. 2,
respondent appeals from an order that denied his motion for leave to
reargue the determination that he is a dangerous sex offender
requiring confinement and for an order stating the facts deemed
essential to Supreme Court’s determination. Initially, we dismiss the
appeal from the order in appeal No. 2 insofar as it denied leave to
reargue because no appeal lies therefrom (see Empire Ins. Co. v Food
City, 167 AD2d 983, 984).

     With respect to appeal No. 1, we note that respondent does not
challenge the determination that he violated his SIST conditions (see
Mental Hygiene Law § 10.11 [d] [1], [4]). He contends, however, that
the court’s determination that he is a dangerous sex offender
requiring confinement (see § 10.07 [f]) is against the weight of the
evidence inasmuch as respondent’s SIST violations did not involve
sexual misconduct directed at any victims. We reject that contention.
Respondent’s SIST violations are “highly relevant regarding the level
of danger that respondent poses to the community with respect to his
                                 -2-                           949
                                                         CA 15-01830

risk of recidivism” (Matter of State of New York v Donald N., 63 AD3d
1391, 1394; see Matter of State of New York v DeCapua, 121 AD3d 1599,
1600, lv denied 24 NY3d 913), and we conclude that petitioner
established by clear and convincing evidence that respondent is a
dangerous sex offender requiring confinement (see Matter of State of
New York v Connor, 134 AD3d 1577, 1578, lv denied 27 NY3d 903;
DeCapua, 121 AD3d at 1600). Contrary to respondent’s contention, the
court did not err in crediting the testimony of petitioner’s expert
over that of respondent’s expert (see Connor, 134 AD3d at 1578;
DeCapua, 121 AD3d at 1600).

     We further conclude that respondent’s contention that he should
be permitted to appear anonymously in this proceeding is not properly
before this Court. We previously denied such an application by
respondent, and he failed to move for leave to renew or reargue that
determination (see generally 22 NYCRR 1000.13 [p]). Finally, we
conclude in appeal No. 1 that, inasmuch as defendant has been confined
to a secure treatment facility, his contentions regarding the lack of
treatment during the pendency of the evidentiary hearing have been
rendered moot (see generally Matter of Jeanty v Commissioner of Corr.
Servs., 92 AD3d 1160, 1161).

     In appeal No. 2, we reject respondent’s contention that the court
failed to state in its decision “the facts it deem[ed] essential” to
its determination (CPLR 4213 [b]; see Matter of Skinner v State of New
York, 108 AD3d 1134, 1134). Here, the court’s “decision, despite its
brevity, fully complies” with section 4213 (b) (Vance Metal
Fabricators v Widell & Son, 50 AD2d 1062, 1063). We also reject
respondent’s contention that he was denied due process because the
court failed to set forth detailed findings of fact in support of its
decision. There is no such requirement in Mental Hygiene Law article
10 and, in any event, we conclude that the court’s decision adequately
sets forth the basis for its determination (see Matter of State of New
York v Brusso, 105 AD3d 1435, 1435).




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