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

209
CA 12-00544
PRESENT: SMITH, J.P., PERADOTTO, CARNI, VALENTINO, AND MARTOCHE, JJ.


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

                    V                             MEMORANDUM AND ORDER

DEREK GOODING, RESPONDENT-APPELLANT.


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

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (ALLYSON B. LEVINE OF
COUNSEL), FOR PETITIONER-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (John L.
Michalski, A.J.), entered February 2, 2012 in a proceeding pursuant to
Mental Hygiene Law article 10. The order, among other things,
determined that respondent is a dangerous sex offender requiring
confinement and committed him 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.). Contrary to respondent’s 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 §§ 10.03 [e]; 10.07 [f]). Moreover,
Supreme Court, as the trier of fact, was “ ‘in the best position to
evaluate the weight and credibility of the conflicting psychiatric
testimony presented’ ” (Matter of State of New York v Blair, 87 AD3d
1327, 1327; see Matter of State of New York v Timothy JJ., 70 AD3d
1138, 1144), and we see no basis to disturb its decision to credit the
testimony of petitioner’s expert over that of respondent’s expert (see
Blair, 87 AD3d at 1327). We reject respondent’s further contention
that petitioner was required to “refute the possibility of a less
restrictive placement” or that the court was required to specifically
address the issue of a less restrictive alternative (see Matter of
State of New York v Enrique T., 93 AD3d 158, 166-167, lv dismissed 18
NY3d 976).

     Finally, respondent’s constitutional and statutory challenges to
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                                                        CA 12-00544

the treatment he received while in a regimen of SIST (see Mental
Hygiene Law § 10.11) at Mid-Erie Counseling and Treatment Services
(Mid-Erie) are not properly before us inasmuch as they are unpreserved
for our review (see Blair, 87 AD3d at 1328; see generally Matter of
Giovanni K. [Dawn K.], 68 AD3d 1766, 1767, lv denied 14 NY3d 707). In
any event, on the record before us, there is no evidence that either
petitioner or Mid-Erie failed to fulfill its treatment
responsibilities or violated respondent’s due process rights.




Entered:   March 22, 2013                      Frances E. Cafarell
                                               Clerk of the Court
