                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 29, 2015                   519227
________________________________

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

JAMES K.,
                    Appellant.
________________________________


Calendar Date:   September 18, 2015

Before:   Garry, J.P., Rose, Lynch and Devine, JJ.

                             __________


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

      Eric T. Schneiderman, Attorney General, Albany (Jonathan D.
Hitsous of counsel), for respondent.

                             __________


Garry, J.P.

      Appeal from an order of the Supreme Court (Rumsey, J.),
entered March 31, 2014 in Tompkins County, which granted
petitioner's application, in a proceeding pursuant to Mental
Hygiene Law article 10, to find respondent to be a dangerous sex
offender and confined him to a secure treatment facility.

      In 1994, following a sexual assault on an eight-year-old
girl, respondent pleaded guilty to sexual abuse in the second
degree and was sentenced to probation. One month later, he
violated the terms of his probation by, among other things, being
in an apartment with a four-year-old girl, and he was
incarcerated for nine months. In 1996, he had forcible sexual
intercourse with a 10-year-old girl. He was convicted of rape in
                              -2-                519227

the first degree and sentenced to a prison term of 12½ to 25
years.

      As respondent's scheduled release date approached, a case
review team of the Office of Mental Health was convened and
Alfred Barnes, a licensed psychologist and psychiatric examiner,
was assigned to evaluate whether respondent was a sex offender
requiring civil management pursuant to Mental Hygiene Law article
10. Following an investigation, Barnes opined that civil
management was required. The case review team concurred, and
petitioner commenced this proceeding seeking a determination that
respondent is a dangerous sex offender requiring civil
commitment. Supreme Court ordered respondent to be committed to
a secure treatment facility while the proceeding was pending (see
Mental Hygiene Law § 10.06 [k]). Katrina Colistra was assigned
as a psychiatric examiner for petitioner, and John Fabian was
assigned for respondent. Both experts submitted reports opining
that respondent suffers from a mental abnormality, and respondent
elected to waive a trial on that issue and to proceed directly to
a dispositional hearing to determine whether he is a dangerous
sex offender requiring confinement or a sex offender requiring
strict and intensive supervision and treatment (hereinafter SIST)
(see Mental Hygiene Law § 10.07 [a], [f]). Supreme Court denied
respondent's motion for an order precluding Barnes from
testifying for petitioner or, in the alternative, appointing a
second expert witness for respondent. Following a hearing in
which Barnes and Colistra testified for petitioner and Fabian
testified for respondent, the court found that petitioner had
established by clear and convincing evidence that respondent was
a dangerous sex offender requiring confinement and ordered him to
be so confined. Respondent appeals.

      We reject respondent's contention that Supreme Court erred
in permitting Barnes to testify. The degree to which Mental
Hygiene Law article 10 authorizes a psychiatric examiner who has
evaluated a respondent pursuant to Mental Hygiene Law § 10.05 (e)
to continue to participate in subsequent proceedings involving
the same respondent appears to be a question of first impression.
However, nothing in the statute affirmatively precludes such
continued participation, and the Court of Appeals has held that
                              -3-                519227

relevant evidence may be admissible in article 10 proceedings
when "no statute prohibits its use" (Matter of State of New York
v John P., 20 NY3d 941, 943 [2012]). As for whether a
psychiatric examiner may supplement his or her evaluation report
by investigating records of the respondent's progress following
completion of the report, and then rely on such updated
information in testifying on the question of confinement, as
Barnes did here, Mental Hygiene Law § 10.05 (e) provides the case
management team and assigned psychiatric examiner with extensive
access to relevant records as part of the initial evaluation. To
limit the psychiatric examiner's subsequent access to relevant
information would be inconsistent with the statutory provisions
that permit the parties to offer additional evidence on the
question of a respondent's dangerousness at the dispositional
hearing and further direct that, "[i]n making a finding of
disposition, the court shall consider . . . all available
information about the prospects for the respondent's possible re-
entry into the community" (Mental Hygiene Law § 10.07 [f]
[emphasis added]).

      Contrary to respondent's argument, petitioner was not
required to demonstrate that Barnes' testimony was "necessary."
Instead, in the absence of any rule prohibiting such evidence,
the test for admissibility is whether the testimony is material
and relevant to the issues posed (see Matter of State of New York
v Enrique D., 22 NY3d 941, 944 [2013]). Here, Barnes possessed
knowledge of respondent's pathology that was clearly material and
relevant on the issue of whether he required confinement.
Further, although Barnes and Colistra relied upon many of the
same records and testing instruments, and each concluded that
respondent required confinement, Barnes' testimony was not
cumulative to that of Colistra. Among other significant
differences in the experts' procedures and conclusions, Barnes'
conclusions were based, in part, on an interview with respondent,
while Colistra was unable to conduct such an interview due to
respondent's refusal to cooperate. We thus find that Supreme
Court did not abuse its discretion in denying respondent's motion
to preclude Barnes from testifying (see Matter of State of New
York v John P., 20 NY3d at 943; compare Matter of State of New
York v Leroy P., 122 AD3d 638, 639-640 [2014], lv denied 24 NY3d
                              -4-                519227

916 [2015]).1

      Likewise, we find no abuse of discretion in the denial of
respondent's motion for the appointment of a second expert.
Respondent identified no new evidence, deficiency in Fabian's
investigation or conclusions or other need for a second expert
opinion, except to balance the number of experts called by
petitioner. As Supreme Court properly found, Mental Hygiene Law
article 10 contains no requirement that both parties must have
the same number of expert witnesses (compare Matter of State of
New York v Timothy BB., 113 AD3d 18, 22 [2013], appeal dismissed
23 NY3d 941 [2014]; Matter of State of New York v Clarence D., 82
AD3d 776, 777 [2011]).

      As for the determination that respondent is a dangerous sex
offender requiring confinement, it was not necessary for Fabian's
testimony to be afforded greater weight than petitioners' experts
based upon his ostensibly superior qualifications, as respondent
contends (see Matter of State of New York v Richard VV., 74 AD3d
1402, 1404 [2010]). Determinations as to the weight and
credibility of conflicting expert medical or psychiatric
testimony are reserved for the trier of fact, who is in the best
position to make such assessments (see Matter of State of New
York v Walter W., 94 AD3d 1177, 1180 [2012], lv denied 19 NY3d
810 [2012]; Matter of State of New York v Donald N., 63 AD3d
1391, 1394 [2009]). Barnes diagnosed respondent with pedophilia,
antisocial personality disorder, another personality disorder
related to sadistic tendencies and several other conditions, and
opined that these diagnoses, combined with his "very high number
of psychopathic traits," placed him at significant risk of
recidivism. Colistra likewise diagnosed respondent with
pedophilia and antisocial personality disorder and psychopathy,
as well as sexual masochism and other conditions, and opined that
he could not be safely managed in a SIST regimen. In addition to

     1
        Respondent's additional argument that he was not given
sufficient notice that petitioner intended to call Barnes to
testify is unpreserved, as it was raised for the first time upon
appeal (see Matter of State of New York v Lonard ZZ., 100 AD3d
1279, 1280 [2012]).
                              -5-                519227

multiple other factors indicating a likelihood that respondent
would reoffend, both Barnes and Colistra noted that respondent
had never fully accepted responsibility for his 1994 and 1996
offenses, and continued to offer inconsistent accounts in which,
at various times, he acknowledged at least some of his behavior,
denied that anything wrongful had occurred, blamed his actions on
substance abuse or, on at least one occasion, claimed that the
first of his child victims – then eight years old – had initiated
sexual contact with him. Fabian offered contrasting opinions,
testifying that respondent had accepted some responsibility for
his conduct, that his primary diagnosis was borderline
personality disorder and that, although he had pedophilic traits,
he did not manifest full-blown pedophilia. Fabian opined that
respondent's age of 45 somewhat mitigated the risk that he would
reoffend sexually, and that he could be safely managed in the
community under a SIST regimen. Supreme Court was free to reject
these opinions and credit those of petitioner's experts and, upon
our full review of the record, we find that the determination was
supported by the requisite "clear and convincing evidence that
. . . respondent has a mental abnormality involving such a strong
predisposition to commit sex offenses, and such an inability to
control [his] behavior, that [he] is likely to be a danger to
others and to commit sex offenses if not confined to a secure
treatment facility" (Mental Hygiene Law § 10.07 [f]; see Matter
of State of New York v Barry W., 114 AD3d 1093, 1094 [2014];
Matter of State of New York v Walter W., 94 AD3d at 1180).

     Rose, Lynch and Devine, JJ., concur.
                        -6-                  519227

ORDERED that the order is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
