STATE OF NEW YORK v. BUSHEY, CHRISTOPHER

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department [785] CA 15-00410 PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, CURRAN, AND TROUTMAN, JJ. IN THE MATTER OF STATE OF NEW YORK, PETITIONER-RESPONDENT, V MEMORANDUM AND ORDER CHRISTOPHER BUSHEY, RESPONDENT-APPELLANT. EMMETT J. CREAHAN, DIRECTOR, MENTAL HYGIENE LEGAL SERVICE, UTICA (BRYCE R. THERRIEN OF COUNSEL), FOR RESPONDENT-APPELLANT. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (FRANK BRADY OF COUNSEL), FOR PETITIONER-RESPONDENT. Appeal from an order of the Supreme Court, Oneida County (Patrick F. MacRae, J.), entered January 28, 2015 in a proceeding pursuant to Mental Hygiene Law article 10. The order, inter alia, determined that respondent is a dangerous sex offender requiring confinement and 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 and committing him to a secure treatment facility (see Mental Hygiene Law § 10.01 et seq.). Respondent failed to preserve for our review his contentions that the evidence is not legally sufficient to establish that he has a mental abnormality or that he has an inability to control his sexual misconduct inasmuch as he did not move for a directed verdict or otherwise challenge the sufficiency of the evidence on those points (see Matter of Vega v State of New York, 140 AD3d 1608, 1609 ). In any event, respondent’s contentions lack merit. Petitioner presented a “detailed psychological portrait of a sex offender [that] would doubtless allow an expert to determine the level of control the offender has over his sexual conduct” (Matter of State v Donald DD., 24 NY3d 174, 188 ; see generally Matter of State of New York v Dennis K., 27 NY3d 718, 734-735 ). Here, petitioner’s two expert witnesses testified that: respondent suffers from pedophilia and antisocial personality disorder with psychopathic traits; respondent refused to admit that he was sexually attracted to children and, as a result, his sex offender treatment program was not geared toward his particular conditions; respondent failed to develop a relapse prevention program; and respondent presents a significant risk of committing sex offenses in the future. We therefore conclude that petitioner met its burden -2- 785 CA 15-00410 of establishing by clear and convincing evidence that respondent has “a congenital or acquired condition, disease or disorder that affects [his] emotional, cognitive, or volitional capacity . . . in a manner that predisposes him . . . to the commission of conduct constituting a sex offense and that results in [him] having serious difficulty in controlling such conduct” (§ 10.03 [i]; see Matter of State of New York v Gierszewski, 81 AD3d 1473, 1473 , lv denied 17 NY3d 702 ; see generally Dennis K., 27 NY3d at 734-735 ). We further conclude that petitioner met its burden of establishing by clear and convincing evidence that respondent “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” (§ 10.03 [e]; see Matter of Billinger v State of New York, 137 AD3d 1757, 1758 ). Entered: September 30, 2016 Frances E. Cafarell Clerk of the Court