                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: February 23, 2017                   521447
________________________________

In the Matter of STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

DAVID HH.,
                    Appellant.
________________________________


Calendar Date:   January 20, 2017

Before:   Garry, J.P., Egan Jr., Devine, Clark and Aarons, JJ.

                             __________


      Sheila E. Shea, Mental Hygiene Legal Service, Albany
(Shannon Stockwell of counsel), for appellant.

      Eric T. Schneiderman, Attorney General, Albany (Kathleen M.
Treasure of counsel), for respondent.

                             __________


Clark, J.

      Appeal from an order of the Supreme Court (Faughnan, J.),
entered May 11, 2015 in Madison County, which granted
petitioner's application, in a proceeding pursuant to Mental
Hygiene Law article 10, to revoke respondent's regimen of strict
and intensive supervision, found respondent to be a dangerous sex
offender and confined him to a secure treatment facility.

      In 2008, at the age of 29, respondent was arrested on
charges of rape in the second degree and criminal sexual act in
the second degree following allegations that, on two occasions,
he raped a 13-year-old girl. Respondent pleaded guilty to rape
in the second degree and, in February 2009, he was sentenced to a
prison term of two years, followed by four years of postrelease
                              -2-                521447

supervision. In 2011, respondent was conditionally released from
prison, but within a few months he violated the terms of his
release by, among other things, accessing the Internet without
authorization and possessing pornographic materials, multiple
computers and children's videos. As a result, respondent's
conditional release was revoked and he returned to prison.

      In November 2012, in anticipation of respondent's re-
release to postrelease supervision, petitioner commenced a Mental
Hygiene Law article 10 proceeding seeking civil management of
respondent (see Mental Hygiene Law § 10.06 [a]). Following a
psychiatric evaluation, respondent was diagnosed with antisocial
personality disorder and sexual preoccupation and he thereafter
consented to a finding that he is a detained sex offender who
suffers from a mental abnormality and requires strict and
intensive supervision (see Mental Hygiene Law § 10.03 [r]).
Supreme Court (Cerio Jr., J.) adjudicated respondent to be a sex
offender requiring strict and intensive supervision and issued an
order directing that, upon his release, respondent be subject to
a regimen of strict and intensive supervision and treatment
(hereinafter SIST) (see Mental Hygiene Law § 10.07 [f]). In June
2013, respondent was released to postrelease supervision and also
placed on SIST. Roughly three months later, respondent's parole
officer found respondent to be in possession of an external hard
drive containing a pornographic video depicting a "'dream rape
scene,'" as well as an electronic device containing pictures of
children and music of a sexual and violent nature. Respondent
was taken into custody on a parole violation warrant and he
ultimately returned to prison, where he remained until the
expiration of his sentence in January 2015.

      In December 2014, in anticipation of respondent's release,
Ronald Field, a clinical psychologist employed by the Office of
Mental Health, conducted a psychiatric evaluation of respondent
to determine if he was a dangerous sex offender requiring civil
confinement (see Mental Hygiene Law § 10.03 [e]) and, if not,
what, if any, modifications to the existing SIST plan were
necessary to ensure that he could be safely treated within the
community. Field concluded that, at that time, respondent was
not a dangerous sex offender requiring civil confinement, but
advised that, because respondent had reported that pornography
                               -3-                521447

depicting adults was "a trigger for his sexual offending cycle,"
any modifications to respondent's SIST should "target his sexual
preoccupation and use of pornography[,] as well as ensure [that]
his access to such materials be limited and monitored." On
January 11, 2015, following the expiration of his sentence,
respondent was released to SIST, under the supervision of the
Division of Parole (see Mental Hygiene Law § 10.11 [c]), and he
moved into his mother's residence.

       Less than two months after his release, respondent admitted
during a polygraph test that he possessed pornographic magazines.
The following day, respondent's parole officer visited
respondent's residence to conduct a home search, and respondent
led the parole officer to a bookshelf where four pornographic
magazines were located. Upon further questioning as to the
location of any additional pornographic materials, respondent
indicated that such material "could" be in his bedroom or in the
hallway outside of his bedroom. A search of these areas
disclosed the presence of four pornographic movies, some of which
depicted rape and torture scenes, and five children's movies
starring certain child stars. Having reasonable cause to believe
that respondent had violated certain conditions of his regimen of
SIST, respondent's parole officer took respondent into custody
and referred him for a psychiatric evaluation, which Field
conducted five days later (see Mental Hygiene Law § 10.11 [d]
[1]).1

      Petitioner then commenced this SIST revocation proceeding
seeking an order finding respondent to be a dangerous sex
offender requiring civil confinement (see Mental Hygiene Law
§ 10.11 [d] [2]). Supreme Court (Faughnan, J.) found probable
cause to believe that respondent was a dangerous sex offender
requiring confinement and directed that he be committed to a


     1
        In both his 2014 and 2015 psychiatric evaluation reports,
Field agreed with the diagnostic conclusions of the 2012
psychiatric evaluator, but indicated that, under the Fifth
Edition of the Diagnostic and Statistical Manual of Mental
Disorders, which had been released in the interim, "sexual
preoccupation" was now referred to as "hypersexuality."
                              -4-                521447

secure treatment facility pending the conclusion of the
proceeding (see Mental Hygiene Law §§ 10.06 [k]; 10.07 [f]; 10.11
[d] [4]). Following a hearing, Supreme Court found that
respondent is a dangerous sex offender requiring civil
confinement, revoked his release on SIST and directed that he be
committed to a secure treatment facility (see Mental Hygiene Law
§ 10.11 [d] [4]; see also Mental Hygiene Law § 10.07 [f]).
Respondent appeals.

      Initially, respondent challenges the finding that he
suffers from a mental abnormality. However, as Supreme Court
correctly recognized, the question of whether respondent suffers
from a mental abnormality was not at issue in his SIST revocation
hearing, as he had consented to the finding of mental abnormality
that led to the underlying SIST order. Moreover, as is the case
with a dispositional hearing following a hearing on the issue of
mental abnormality (see Mental Hygiene Law § 10.07 [f]), the
relevant statutory provision provides only two dispositional
choices in a SIST revocation proceeding: civil confinement or a
regimen of SIST, both of which operate on the presumption that
there has already been a finding of mental abnormality (see
Mental Hygiene Law § 10.11 [d] [4]; Matter of State of New York v
Breeden, 140 AD3d 1649, 1649 [2016]). Accordingly, under these
circumstances, the issue of whether respondent suffers from a
mental abnormality was not before Supreme Court in his SIST
revocation proceeding (see Matter of State of New York v Wayne
J., 143 AD3d 834, 835 [2016]; Matter of State of New York v
Breeden, 140 AD3d at 1649; Matter of State of New York v Jason
H., 82 AD3d 778, 779 [2011]).2

      Respondent also challenges Supreme Court's determination
that he is a dangerous sex offender requiring civil confinement.
Respondent does not dispute that he violated certain conditions
of his SIST regimen; rather, he argues that petitioner failed to
prove by clear and convincing evidence that his violations
demonstrated an inability to control his behavior, such that he


    2
        Respondent may challenge the issue of whether he suffers
from a mental abnormality by petitioning the court for discharge
(see Mental Hygiene Law § 10.09 [a], [f]).
                              -5-                521447

was likely to be a danger to others and to commit sex offenses if
not confined. We disagree.

      Under Mental Hygiene Law article 10, a dangerous sex
offender requiring confinement is defined as "a detained sex
offender suffering from a mental abnormality involving such a
strong predisposition to commit sex offenses, and such an
inability to control behavior, that the person is likely to be a
danger to others and to commit sex offenses if not confined to a
secure treatment facility" (Mental Hygiene Law § 10.03 [e]). In
contrast, a sex offender requiring strict and intensive
supervision is an individual who is a detained sex offender and
suffers from a mental abnormality – that is, "a congenital or
acquired condition, disease or disorder that affects the
emotional, cognitive, or volitional capacity of a person in a
manner that predisposes him or her to the commission of conduct
constituting a sex offense and that results in that person having
serious difficulty in controlling such conduct" (Mental Hygiene
Law § 10.03 [i]) – but who does not meet the definition of a
dangerous sex offender requiring confinement (see Mental Hygiene
Law § 10.03 [r]). As made clear by the statutory language,
Mental Hygiene Law article 10 "envisages 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" (Matter of State of New York v Michael M., 24
NY3d 649, 659 [2014]).

      At the SIST revocation hearing, petitioner offered, among
other things, the psychiatric evaluation reports and testimony of
Field, who opined that respondent was at a high risk of
reoffending if he remained in the community given the "strength"
of respondent's need for pornography, compulsion for sexual
gratification and inability to comply with the conditions of SIST
imposed upon him and that, therefore, respondent was a dangerous
sex offender requiring civil confinement. Field testified that,
in reaching his opinion, he relied on the facts and circumstances
underlying respondent's repeated SIST violations, his
demonstrated inability to rid himself of pornographic materials,
despite having been repeatedly advised to do so, and his
admission that pornography was a "trigger" for his sexual
                              -6-                  521447

offending behavior. Field also described respondent's
concerning, deceptive behavior for a sex offender released on
SIST, including respondent's inconsistent statements as to his
knowledge of the presence of pornography in his residence and the
frequency with which he engaged in self-gratification. Field
further pointed to respondent's scores on three actuarial tests,
which together categorized respondent as a "high [c]urrent [r]isk
[p]riority" for sexual and violent recidivism, as well as general
recidivism. Respondent offered no competing expert testimony to
rebut Field's conclusion that respondent is a detained sex
offender who suffers from a mental abnormality, is unable to
control his sexual misconduct and is likely to be a danger to
others and to commit sex offenses if not civilly confined.
Deferring to Supreme Court's ability to evaluate Field's
unrebutted opinion testimony (see Matter of Rene I. v State of
New York, 146 AD3d 1056, ___, 45 NYS3d 259, 260-261 [2017];
Matter of William II. v State of New York, 110 AD3d 1282, 1283
[2013]), we find that petitioner established by clear and
convincing evidence that respondent is a dangerous sex offender
requiring civil confinement (see Matter of State of New York v
Breeden, 140 AD3d at 1649-1650; Matter of State of New York v
Donald N., 63 AD3d 1391, 1392-1395 [2009]; compare Matter of
State of New York v Michael M., 24 NY3d at 659; Matter of State
of New York v Husted, 145 AD3d 1637, 1638 [2016]).

     Garry, J.P., Egan Jr., Devine and Aarons, JJ., concur.



     ORDERED that the order is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
