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

287
CA 14-02176
PRESENT: WHALEN, P.J., CENTRA, CARNI, DEJOSEPH, AND TROUTMAN, JJ.


IN THE MATTER OF THE APPLICATION FOR DISCHARGE
OF LARRY BILLINGER, CONSECUTIVE NO. 75001,
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
(BENJAMIN D. AGATA OF COUNSEL), FOR PETITIONER-APPELLANT.

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


     Appeal from an order of the Supreme Court, Oneida County (Joseph
E. Fahey, A.J.), entered October 29, 2014 in a proceeding pursuant to
Mental Hygiene Law article 10. The order, among other things,
directed that petitioner shall continue to be confined to a secure
treatment facility.

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

     Memorandum: Petitioner appeals from an order, entered after an
annual review hearing pursuant to Mental Hygiene Law § 10.09 (d),
determining that he currently suffers from a mental abnormality under
Mental Hygiene Law § 10.03 (i) and directing that petitioner continue
to be confined to a secure treatment facility (see § 10.09 [h]). We
affirm.

     We reject petitioner’s contention that the evidence is not
legally sufficient to establish that he requires confinement.
Respondents’ evidence consisted of the report and testimony of a
psychologist who evaluated petitioner and opined that petitioner
suffers from pedophilic disorder of a nonexclusive type, antisocial
personality disorder, and borderline intellectual functioning, and
that, as a result of those mental abnormalities, petitioner has
serious difficulty controlling his disposition to sexually offend,
thereby requiring his confinement. Respondents’ expert also opined
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                                                         CA 14-02176

that petitioner remains at the “relatively early” “Phase II” of his
treatment at the Central New York Psychiatric Center, that petitioner
does not have an adequate relapse prevention plan, and that
petitioner’s risk of sexual recidivism was high as indicated by a
Static-99R score of 8. Upon our review of the record, we conclude
that respondents established by the requisite clear and convincing
evidence that petitioner “suffer[s] from a mental abnormality
involving such a strong predisposition to commit sex offenses, and
such an 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 § 10.03 [e]; see Matter
of State of New York v Robert F., 25 NY3d 448, 454-455; Matter of
State of New York v Floyd Y., 135 AD3d 70, 74-75; Matter of State of
New York v Richard TT., 132 AD3d 72, 76-79, appeal dismissed 26 NY3d
994). To the extent that petitioner contends that the determination
is against the weight of the evidence, we reject that contention.
Supreme Court “was in the best position to evaluate the weight and
credibility of the conflicting [expert] testimony presented . . . ,
and we see no reason to disturb the court’s decision to credit the
testimony of [respondents’] expert[]” (Matter of State of New York v
Parrott, 125 AD3d 1438, 1439, lv denied 25 NY3d 911 [internal
quotation marks omitted]).




Entered:   March 25, 2016                      Frances E. Cafarell
                                               Clerk of the Court
