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

474
CA 15-00088
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ.


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

                    V                             MEMORANDUM AND ORDER

EDWARD BREEDEN, RESPONDENT-APPELLANT.


EMMETT J. CREAHAN, DIRECTOR, MENTAL HYGIENE LEGAL SERVICE, UTICA
(PATRICK T. CHAMBERLAIN OF COUNSEL), FOR RESPONDENT-APPELLANT.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (FRANK BRADY OF
COUNSEL), FOR PETITIONER-RESPONDENT.


     Appeal from an order of the Supreme Court, Oneida County (Samuel
D. Hester, J.), entered November 18, 2014 in a proceeding pursuant to
Mental Hygiene Law article 10. The order, among other things,
committed respondent 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.).

     We reject respondent’s contention that Supreme Court erred in
ruling that the question whether respondent suffers from a mental
abnormality is not at issue in a SIST revocation hearing. In a SIST
revocation hearing, like in a dispositional hearing following trial on
the issue of mental abnormality, the statute gives the court only two
dispositional choices—to order civil confinement or to continue a
regimen of SIST (compare Mental Hygiene Law §§ 10.07 [f] with 10.11
[d] [4]), both of which assume that respondent has a mental
abnormality. The only issue before the court, therefore, is whether
the mental abnormality is such that respondent requires confinement
(§ 10.11 [d] [4]; see generally Matter of State of New York v Michael
M., 24 NY3d 649, 658-659). In light of that statutory structure, we
see no need to address respondent’s contentions that the evidence of
mental abnormality was insufficient.

     We reject respondent’s further contention that the evidence is
insufficient to support a finding that respondent has “such an
                                 -2-                           474
                                                         CA 15-00088

inability to control 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]). At the SIST
revocation hearing, respondent’s parole officer testified that
respondent admitted that he gave an 18-year-old woman a ride in his
car in violation of his SIST conditions, ordered her to remove her
pants, yelled at her, touched her leg without permission, and did so
intending to scare her. Further, petitioner offered the testimony of
an expert psychologist, who opined that respondent was a dangerous sex
offender requiring confinement. Petitioner’s expert testified that,
in forming her opinion, she reviewed reports detailing respondent’s
numerous SIST violations, including the 18-year-old victim’s
statement, which contained allegations that were sexual in nature.
Further, petitioner’s expert testified that she considered
respondent’s STATIC-99 scores showing a “moderate-to-high” risk of
recidivism, and she described the documented failure of respondent’s
relapse prevention plan, his initial refusal to engage in sex offender
treatment while incarcerated, and his eventual failed evaluations in
and subsequent removal from sex offender treatment. Upon our review
of the record, particularly the uncontradicted testimony of
petitioner’s expert, we conclude that petitioner established by clear
and convincing evidence that respondent is a dangerous sex offender
requiring confinement (see Matter of State of New York v DeCapua, 121
AD3d 1599, 1600, lv denied 24 NY3d 913; see generally Matter of State
of New York v Robert F., 25 NY3d 448, 454-455).

     We reject respondent’s contention that the admission of certain
hearsay statements into evidence denied him due process. Although the
court erred in admitting certain hearsay evidence, i.e., victim
statements about alleged inappropriate sexual behavior, the court “is
presumed to be able to distinguish between admissible evidence and
inadmissible evidence . . . and to render a determination based on the
former” (Matter of State of New York v Parrott, 125 AD3d 1438, 1439
[internal quotation marks omitted], lv denied 25 NY3d 911; see Matter
of State of New York v Mark S., 87 AD3d 73, 80, lv denied 17 NY3d
714). Moreover, we conclude that there is “ ‘no reasonable
possibility’ ” that, had the statements been excluded, the court would
have reached a different determination (Matter of State of New York v
Charada T., 23 NY3d 355, 362; see Parrott, 125 AD3d at 1439).

     Finally, respondent contends that the court erred in allowing
petitioner to prosecute SIST violations that occurred approximately
three years earlier. That contention is raised for the first time on
appeal and thus is not properly before us (see Ciesinski v Town of
Aurora, 202 AD2d 984, 985).




Entered:   June 10, 2016                        Frances E. Cafarell
                                                Clerk of the Court
