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

904
CA 15-00868
PRESENT: CENTRA, J.P., PERADOTTO, DEJOSEPH, NEMOYER, AND CURRAN, JJ.


IN THE MATTER OF THE APPLICATION FOR DISCHARGE
OF MELVIN WALLS, CONSECUTIVE NO. 76930, FROM
CENTRAL NEW YORK PSYCHIATRIC CENTER PURSUANT TO
MENTAL HYGIENE LAW SECTION 10.09,
PETITIONER-APPELLANT,

                    V                             MEMORANDUM AND ORDER

STATE OF NEW YORK, NEW YORK STATE OFFICE OF
MENTAL HEALTH AND NEW YORK STATE DEPARTMENT OF
CORRECTIONS AND COMMUNITY SUPERVISION,
RESPONDENTS-RESPONDENTS.


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

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


     Appeal from an order of the Supreme Court, Oneida County (Joseph
E. Fahey, A.J.), entered April 29, 2015 in a proceeding pursuant to
Mental Hygiene Law article 10. The order denied the motion of
petitioner to vacate an order for continued confinement.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: By order entered in December 2013, Supreme Court
determined after an annual review hearing pursuant to Mental Hygiene
Law § 10.09 (d) that petitioner is currently a dangerous sex offender
requiring confinement. The court continued petitioner’s confinement
in a secure treatment facility. Following the decision of the Court
of Appeals in Matter of State of New York v Donald DD. (24 NY3d 174),
petitioner’s counsel moved to vacate the above order pursuant to CPLR
5015 (a), contending that the evidence submitted during the annual
review hearing is not legally sufficient to support a finding that
petitioner suffers from a mental abnormality. The court denied the
motion. We affirm.

     We conclude that the court did not abuse its discretion in
denying petitioner’s CPLR 5015 (a) motion (see Matter of State of New
York v Richard TT., 132 AD3d 72, 75, affd 27 NY3d 718). Contrary to
petitioner’s contention, the evidence is legally sufficient to
establish that he has “a congenital or acquired condition, disease or
                                 -2-                           904
                                                         CA 15-00868

disorder that affects the emotional, cognitive, or volitional capacity
of a person in a manner that predisposes him or her to the commission
of conduct constituting a sex offense” (Mental Hygiene Law § 10.03
[i]). Here, respondents’ expert testified that petitioner has such a
predisposing condition based on diagnoses of personality disorder, not
otherwise specified, with antisocial traits, combined with cocaine and
alcohol abuse. Respondents’ expert also stated that petitioner
exhibited behavior markers of an abnormal sexual interest in
nonconsensual sexual behavior. In view of the foregoing, and
considering the evidence in the light most favorable to respondents
(see Matter of State of New York v John S., 23 NY3d 326, 348, rearg
denied 24 NY3d 933), we conclude that there is legally sufficient
evidence in the record to sustain a finding of mental abnormality (see
§ 10.03 [i]; Matter of State of New York v Dennis K., 27 NY3d 718,
749-750; Matter of State of New York v Charada T., 23 NY3d 355, 359,
362; Matter of Vega v State of New York, 140 AD3d 1608, 1608-1609;
Matter of State of New York v Williams, 139 AD3d 1375, 1377).




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