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

1165
CA 11-01975
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


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

                    V                             MEMORANDUM AND ORDER

BRIAN HUNTER, RESPONDENT-APPELLANT.


EMMETT J. CREAHAN, DIRECTOR, MENTAL HYGIENE LEGAL SERVICE, ROCHESTER
(NEIL J. ROWE 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, Monroe County (Ann
Marie Taddeo, J.), entered June 30, 2011 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 entered following a
jury trial that, inter alia, determined that he is a dangerous sex
offender requiring confinement pursuant to Mental Hygiene Law article
10 and committed him to a secure treatment facility. Respondent
contends that Supreme Court erred in denying that part of his pretrial
motion requesting that the report of a court-appointed psychiatric
examiner be provided to the court and the Attorney General only in the
event that respondent decided to call the examiner as a witness at
trial. According to respondent, such a disclosure would violate his
right to due process and equal protection. We reject that contention.
Mental Hygiene Law § 10.06 (e) provides that, any time after the
filing of a sex offender civil management petition and prior to trial,
the court shall order an evaluation of the respondent by a psychiatric
examiner upon the respondent’s request. The statute further provides
that, “[f]ollowing the evaluation, such psychiatric examiner shall
report his or her findings in writing to the respondent or counsel for
the respondent, to the attorney general, and to the court” (id.
[emphasis added]). We conclude that respondent did not meet his
burden of establishing that the statute is unconstitutional beyond a
reasonable doubt (see generally Dalton v Pataki, 5 NY3d 243, 255,
rearg denied 5 NY3d 783, cert denied 546 US 1032). Indeed, the
statute goes beyond the due process required in a civil confinement
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                                                        CA 11-01975

proceeding inasmuch as a respondent is entitled to the appointment of
a psychiatric examiner simply upon request and without a showing of
necessity (cf. Goetz v Crosson, 967 F2d 29, 36-37). Respondent failed
to preserve for our review his further contention that his privilege
against self-incrimination was violated and, in any event, that
contention is without merit (see § 10.08 [a]).

     We reject respondent’s contention that the admission in evidence
of testimony from his criminal trial at this civil proceeding violated
his right of confrontation. Mental Hygiene Law § 10.08 (g)
specifically allows the admission of such evidence, and the right of
confrontation applicable in criminal cases does not apply to this
civil proceeding (see Matter of State of New York v Wilkes [appeal No.
2], 77 AD3d 1451, 1451-1452). Finally, contrary to respondent’s
contention, petitioner established by clear and convincing evidence
that respondent has an inability to control his behavior such that he
“is likely to be a danger to others and to commit sex offenses if not
confined” (§ 10.07 [f]).




Entered:   November 16, 2012                   Frances E. Cafarell
                                               Clerk of the Court
