STATE OF NEW YORK v. KENNEDY, DOUGLAS

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 3, 2014
• Docket: CA 13-00541
• Status: Published

Opinion

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

1038 CA 13-00541 PRESENT: SMITH, J.P., PERADOTTO, VALENTINO, WHALEN, AND DEJOSEPH, JJ.

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

V MEMORANDUM AND ORDER

DOUGLAS KENNEDY, RESPONDENT-APPELLANT.

KEVIN J. BAUER, ALBANY, FOR RESPONDENT-APPELLANT.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (FRANK BRADY OF COUNSEL), FOR PETITIONER-RESPONDENT.

Appeal from an order of the Supreme Court, Erie County (John L. Michalski, A.J.), entered March 11, 2013 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 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, Supreme Court’s determination that respondent “is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility” is not against the weight of the evidence (§ 10.03 [e]; see Matter of State of New York v Reeve, 87 AD3d 1378, 1378, lv denied 18 NY3d 804; see generally § 10.03 [i]). The 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 Timothy JJ., 70 AD3d 1138, 1144; see Matter of State of New York v Richard VV., 74 AD3d 1402, 1405), and we see no reason to disturb the court’s decision to credit the testimony of petitioner’s expert over that of respondent’s expert (see Matter of State of New York v Boutelle, 85 AD3d 1607, 1607; Timothy JJ., 70 AD3d at 1145).

Entered: October 3, 2014 Frances E. Cafarell Clerk of the Court