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

1219
CA 15-01355
PRESENT: SMITH, J.P., LINDLEY, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.


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

                    V                             MEMORANDUM AND ORDER

JOSEPH SCHOLTISEK, RESPONDENT-APPELLANT.


NEIL T. CAMPBELL, ROCHESTER, FOR RESPONDENT-APPELLANT.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (KATHLEEN M. ARNOLD OF
COUNSEL), FOR PETITIONER-RESPONDENT.


     Appeal from an order of the Supreme Court, Livingston County
(Dennis S. Cohen, A.J.), entered June 26, 2015 in a proceeding
pursuant to Mental Hygiene Law article 10. The order, among other
things, directed that respondent be committed 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 pursuant to Mental
Hygiene Law article 10 determining, following a jury trial, that he is
a detained sex offender who has a mental abnormality within the
meaning of Mental Hygiene Law § 10.03 (i) and determining, following a
nonjury dispositional hearing, that he is a dangerous sex offender
requiring confinement in a secure treatment facility. We affirm.

     To the extent that respondent contends that the evidence is
legally insufficient to establish that he has a mental abnormality, we
reject that contention. Petitioner’s expert witnesses testified that
respondent suffers from “pedophilic disorder”; had four victims
spanning ten years; re-offended after going to prison and while under
parole supervision; and has not progressed or completed any sex
offender treatment. In addition, one of petitioner’s experts
testified that, despite the fact that respondent has ready
accessibility to age-appropriate sexual partners, he continues to
pursue children, which, according to petitioner’s expert witness, is
an indication “of the strength of that interest and urge, that sex
with people his own age isn’t enough.” We therefore conclude that
petitioner sustained its burden of establishing by clear and
convincing evidence that respondent suffers from “a congenital or
acquired condition, disease or disorder that affects the emotional,
cognitive, or volitional capacity of a person in a manner that
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                                                         CA 15-01355

predisposes him . . . to the commission of conduct constituting a sex
offense and that results in [him] having serious difficulty in
controlling such conduct” (Mental Hygiene Law § 10.03 [i]; see Matter
of State of New York v Stein, 85 AD3d 1646, 1647, affd 20 NY3d 99,
cert denied ___ US ___, 133 S Ct 1500; Matter of State of New York v
Bushey, 142 AD3d 1375, 1376; Matter of State of New York v
Gierszewski, 81 AD3d 1473, 1473-1474, lv denied 17 NY3d 702). We
reject respondent’s further contention that the verdict is against the
weight of the evidence. “The jury verdict is entitled to great
deference based on the jury’s opportunity to evaluate the weight and
credibility of conflicting expert testimony” (Matter of State of New
York v Chrisman, 75 AD3d 1057, 1058), and it should be set aside only
if the evidence preponderates so greatly in respondent’s favor that
the jury’s determination is not supported by any fair interpretation
of the evidence (see Matter of State of New York v Nervina, 120 AD3d
941, 943, affd 27 NY3d 718). Here, we conclude that the jury’s
determination is supported by a fair interpretation of the evidence.

      Contrary to respondent’s further contention, we conclude that
petitioner established by clear and convincing evidence at the
dispositional hearing that he is a dangerous sex offender requiring
confinement (see Mental Hygiene Law §§ 10.03 [e]; 10.07 [f]).
“ ‘Supreme Court, as the trier of fact, was in the best position to
evaluate the weight and credibility of the conflicting [psychological]
testimony presented . . . , and we see no basis to disturb its
decision to credit the testimony of petitioner’s expert over that of
respondent’s expert’ ” (Matter of State of New York v Connor, 134 AD3d
1577, 1578, lv denied 27 NY3d 903; see Matter of State of New York v
Adkison, 108 AD3d 1050, 1052; see also Bushey, 142 AD3d at 1376-1377).
Finally, contrary to respondent’s contention, the court was under no
obligation to “consider the possibility of a ‘least restrictive
alternative’ in rendering its disposition” (Matter of State of New
York v Bass, 119 AD3d 1356, 1357, lv denied 24 NY3d 908; see Matter of
State of New York v Michael M., 24 NY3d 649, 657-658; Matter of State
of New York v Parrott, 125 AD3d 1438, 1439-1440, lv denied 25 NY3d
911).




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