                            State of New York
                     Supreme Court, Appellate Division
                         Third Judicial Department
Decided and Entered: January 5, 2017                     522649
________________________________

In the Matter of RENE I.,
                    Appellant,
      v                                       MEMORANDUM AND ORDER

STATE OF NEW YORK,
                    Respondent.
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Calendar Date:   November 21, 2016

Before:   McCarthy, J.P., Lynch, Rose, Clark and Aarons, JJ.

                               __________


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

      Eric T. Schneiderman, Attorney General, Albany (Frank Brady
of counsel), for respondent.

                               __________


Lynch, J.

      Appeal from an order of the Supreme Court (Demarest, J.),
entered April 16, 2015 in St. Lawrence County, which dismissed
petitioner's application, in a proceeding pursuant to Mental
Hygiene Law article 10, for his discharge from confinement at a
secure treatment facility.

      In 1980, petitioner was convicted of, among other things,
rape in the first degree and sodomy in the first degree and
sentenced to 12½ to 25 years in prison. At the time that he
committed the crimes, he was on parole for two attempted rape
convictions. Petitioner was subsequently diagnosed with
antisocial personality disorder, exhibitionism and paraphilia not
otherwise specified, determined to be a dangerous sex offender
and has been civilly confined in a secure treatment facility
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since February 2010 (see Mental Hygiene Law § 10.01 et seq.). In
November 2014, petitioner exercised his right to petition the
court for discharge (see Mental Hygiene Law § 10.09 [a]) and an
evidentiary hearing was held in April 2015 (see Mental Hygiene
Law § 10.09 [d]; Matter of State of New York v Nelson D., 22 NY3d
233, 243 [2013]). At the conclusion of the hearing, Supreme
Court determined that petitioner was a "dangerous sex offender
requiring confinement" and, thus, continued his confinement
(Mental Hygiene Law § 10.09 [h]). Petitioner now appeals.

      Petitioner contends that respondent failed to establish
that he suffers from a mental abnormality to the extent there was
not clear and convincing evidence that he had "serious difficulty
in controlling" his sexual misconduct within the meaning of
Mental Hygiene Law § 10.03 (i). We disagree. Mental Hygiene Law
§ 10.03 (e) defines a "[d]angerous sex offender requiring
confinement" as "a person who is 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" (see Matter of Sincere KK. v State of New
York, 111 AD3d 1083, 1084 [2013], lv denied 26 NY3d 906 [2015]).
To establish that a sex offender has difficulty controlling his
or her behavior requires more than just a showing "that a sex
offender did not make efforts to avoid arrest and
reincarceration" (Matter of State of New York v Donald DD., 24
NY3d 174, 188 [2014]). By comparison a "detailed psychological
portrait . . . would doubtless allow an expert to determine the
level of control [an] offender has over his [or her] sexual
conduct" (id.; see Matter of State of New York v Dennis K., 27
NY3d 718, 734-735, 751-752 [2016], cert denied ___ US ___ [Dec.
5, 2016]).

      Here, respondent offered the testimony of Danielle Tope, an
Office of Mental Health psychiatric examiner, and the report that
she prepared as part of her evaluation. Tope explained that,
because petitioner declined to be interviewed for the evaluation,
she relied on prior psychiatric evaluations, facility records and
progress notes, police and parole records, and disciplinary
reports to diagnose petitioner with borderline intellectual
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function, schizophrenia, antisocial personality disorder,
exhibitionistic disorder and an unspecified paraphilic disorder.
When explaining her opinion that petitioner was predisposed to
commit sex offenses and was unable to control his behavior, Tope
cited such factors as petitioner's age when he began committing
sex offenses, the proximate timing of his offenses, his
disciplinary record indicating that, on "multiple" occasions, he
exposed himself and masturbated in the presence of staff and his
perjorative attitude towards women. Tope also relied on the
results of a rating tool known as the Violence Risk Scale-Sexual-
Offender Version, which indicated a high risk that petitioner
would reoffend. She explained that petitioner remained unable to
complete treatment due to his conduct, had conceded that "if
temptation is present, he will act," and that he had poor insight
and an inability to understand his triggers. Contrary to
petitioner's argument, we find that Tope provided a sufficient
"psychological portrait" to support her opinion that petitioner
lacks control over his sexual misconduct (Matter of State of New
York v Donald DD., 24 NY3d at 188). According deference to the
trial court's ability to evaluate Tope's opinions and absent any
conflicting evidence, we find that respondent established by
clear and convincing evidence that petitioner continues to be a
dangerous sex offender requiring civil confinement (see Matter of
Sincere KK. v State of New York, 111 AD3d at 1084).

     McCarthy, J.P., Rose, Clark and Aarons, JJ., concur.



     ORDERED that the order is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
