State v. Kennedy

121 A.D.3d 1601, 992 N.Y.S.2d 839

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 3, 2014
• Status: Published

Opinion

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 (Mental Hygiene Law § 10.03 [e]; see Matter of State of New York v Reeve, 87 AD3d 1378, 1378 [2011], lv denied 18 NY3d 804 [2012]; see generally Mental Hygiene Law § 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 [2010]; see Matter of State of New York v Richard VV., 74 AD3d 1402, 1405 [2010]), 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 [2011]; Timothy JJ., 70 AD3d at 1145).

Present — Smith, J.E, Peradotto, Valentino, Whalen and DeJoseph, JJ.