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

1008
CA 10-01139
PRESENT: SCUDDER, P.J., SMITH, LINDLEY, SCONIERS, AND GORSKI, JJ.


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

                    V                             MEMORANDUM AND ORDER

KEITH REEVE, RESPONDENT-APPELLANT.


EMMETT J. CREAHAN, DIRECTOR, MENTAL HYGIENE LEGAL SERVICE, UTICA
(JANINE E. FRANK OF COUNSEL), 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, Onondaga County (Brian
F. DeJoseph, J.), entered January 22, 2010 in a proceeding pursuant to
Mental Hygiene Law article 10. The order 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 determining that he
is a dangerous sex offender requiring confinement pursuant to Mental
Hygiene Law article 10 and committing him to a secure treatment
facility. Contrary to respondent’s contention, we conclude that
petitioner met its burden of establishing by clear and convincing
evidence that respondent suffers from a mental abnormality (see Matter
of State of New York v Farnsworth, 75 AD3d 14, 17, appeal dismissed 15
NY3d 848; see generally § 10.03 [i]). Petitioner also established by
clear and convincing evidence that respondent has such an inability to
control his behavior that he “is likely to be a danger to others and
to commit sex offenses if not confined” (§ 10.07 [f]). Thus, Supreme
Court’s determination that respondent should be committed to a secure
treatment facility is not against the weight of the evidence (see
generally id.).

     “Respondent’s contention regarding the order issued following the
probable cause hearing is not properly before us because no appeal
lies from such an order” (Matter of State of New York v Stein, 85 AD3d
1646, 1648; see Mental Hygiene Law § 10.13 [b]). Respondent’s further
contention regarding the standard of proof is not preserved for our
review inasmuch as he failed to raise it before the trial court (see
Matter of State of New York v Gierszewski, 81 AD3d 1473, lv denied 17
NY3d 702; Matter of State of New York v Chrisman, 75 AD3d 1057; cf.
                                 -2-                          1008
                                                         CA 10-01139

Matter of State of New York v Rashid, 16 NY3d 1, 13). In any event,
respondent’s contention is not properly before us because it is raised
for the first time in his reply brief (see Matter of State of New York
v Zimmer [appeal No. 4], 63 AD3d 1563; see generally Turner v Canale,
15 AD3d 960, lv denied 5 NY3d 702).

     We have considered respondent’s remaining contentions and
conclude that they are without merit.




Entered:   September 30, 2011                   Patricia L. Morgan
                                                Clerk of the Court
