STATE OF NEW YORK v. HARLAND, DERRICK

Opinion

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

544 CA 10-02493 PRESENT: CENTRA, J.P., PERADOTTO, SCONIERS, AND MARTOCHE, JJ.

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

V MEMORANDUM AND ORDER

DERRICK HARLAND, RESPONDENT-APPELLANT.

CHARLES J. GREENBERG, BUFFALO, FOR RESPONDENT-APPELLANT.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (MARLENE O. TUCZINSKI OF COUNSEL), FOR PETITIONER-RESPONDENT.

Appeal from an order of the Supreme Court, Erie County (Timothy J. Walker, A.J.), entered July 29, 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 established by clear and convincing evidence at the dispositional hearing that he is a dangerous sex offender requiring confinement (see § 10.03 [e]; § 10.07 [f]). Supreme Court “was ‘in the best position to evaluate the weight and credibility of the conflicting psychiatric testimony presented’ ” (Matter of State of New York v Blair, 87 AD3d 1327, 1327; see Matter of State of New York v Richard VV., 74 AD3d 1402, 1404; Matter of State of New York v Timothy JJ., 70 AD3d 1138, 1144-1145). We see no basis upon which to disturb the court’s determination to credit the testimony of petitioner’s expert over that of the expert who testified on behalf of respondent (see Matter of State of New York v Boutelle, 85 AD3d 1607, 1607; see also Matter of State of New York v Flagg [appeal No. 2], 71 AD3d 1528, 1530).

Entered: April 27, 2012 Frances E. Cafarell Clerk of the Court