         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1009
CA 11-00477
PRESENT: SCUDDER, P.J., SMITH, CENTRA, LINDLEY, AND MARTOCHE, JJ.


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

                    V                                MEMORANDUM AND ORDER

JODY JAMES TROMBLEY, RESPONDENT-APPELLANT.


DONALD R. GERACE, UTICA, FOR RESPONDENT-APPELLANT.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (KATHLEEN M. ARNOLD OF
COUNSEL), FOR PETITIONER-RESPONDENT.


     Appeal from an order of the Supreme Court, Oneida County (Anthony
F. Shaheen, J.), entered November 5, 2010 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 pursuant to Mental
Hygiene Law article 10 determining, following a jury trial, that he is
a detained sex offender who has a mental abnormality within the
meaning of Mental Hygiene Law § 10.03 (i) and determining, following a
dispositional hearing, that he is a dangerous sex offender requiring
confinement in a secure treatment facility. We reject respondent’s
contention that the evidence is legally insufficient to establish that
his assault convictions were sexually motivated, i.e., that they “were
committed in whole or in substantial part for the purpose of direct
sexual gratification of the actor” (§ 10.03 [s]). Petitioner’s expert
opined that respondent is a sexual sadist, inasmuch as he is sexually
aroused by another person’s physical or psychological suffering and
has acted on his urges with a nonconsenting person. The expert
explained that sadistic acts involve activities of dominance over a
victim, and that many of those acts had involved the victim of the
assaults. He opined that respondent engaged in acts of “gratuitous
violence,” which were one of the most common types of acts among
sexual sadists, that he became sexually gratified by the victim’s pain
and suffering, and that the two assaults to which he pleaded guilty
were sexually motivated. We therefore conclude that the evidence is
legally sufficient to support the jury verdict (see Matter of State of
New York v Gierszewski, 81 AD3d 1473, 1473, lv denied 17 NY3d 702).
We reject respondent’s further contention that the verdict is against
the weight of the evidence (see id. at 1473-1474). Although
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                                                         CA 11-00477

respondent’s expert opined that the assaults were not sexually
motivated, “ ‘[t]he jury verdict is entitled to great deference based
on the jury’s opportunity to evaluate the weight and credibility of
conflicting expert testimony’ ” (id. at 1474).

     Also contrary to respondent’s contention, the evidence is legally
sufficient to establish 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]). Again, there was
conflicting expert testimony, and Supreme Court credited the testimony
of petitioner’s expert. We perceive no basis to disturb that
determination (see Matter of State of New York v Timothy EE., 97 AD3d
996, 998-999; Matter of State of New York v Harland, 94 AD3d 1558,
1559).

     Respondent’s contention that the court erred in admitting in
evidence documents and testimony regarding two prior assault
convictions committed by respondent is without merit inasmuch as that
evidence was relevant on the issue whether the assault convictions
were sexually motivated (see Matter of State of New York v Lester, 94
AD3d 1492, 1492). With respect to the admission in evidence of a
prior victim’s unsworn statement, we conclude that any error in its
admission is harmless (see Matter of State of New York v Fox, 79 AD3d
1782, 1784). Respondent failed to preserve for our review his
contention that he was denied due process by the failure to hold the
trial within 60 days of the probable cause determination (see Mental
Hygiene Law § 10.07 [a]; see generally Matter of State of New York v
Reeve, 87 AD3d 1378, 1378, lv denied 18 NY3d 804). That contention is
without merit in any event inasmuch as the delay was attributable to
his own requests for adjournments. We have reviewed respondent’s
remaining contentions and conclude that they are without merit.




Entered:   September 28, 2012                   Frances E. Cafarell
                                                Clerk of the Court
