STATE OF NEW YORK v. MATTER, MICHAEL

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

955 CA 12-01123 PRESENT: SMITH, J.P., PERADOTTO, CARNI, AND LINDLEY, JJ.

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

V MEMORANDUM AND ORDER

MICHAEL MATTER, RESPONDENT-APPELLANT.

EMMETT J. CREAHAN, DIRECTOR, MENTAL HYGIENE LEGAL SERVICE, BUFFALO (MARGOT S. BENNETT 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, Niagara County (Richard C. Kloch, Sr., A.J.), entered April 19, 2012 in a proceeding pursuant to Mental Hygiene Law article 10. The order 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 revoking his prior regimen of strict and intensive supervision and treatment (SIST), 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.). On a prior appeal, we affirmed an order determining that respondent is a detained sex offender requiring civil management through a regimen of SIST and placing him with the New York State Department of Corrections and Community Supervision (Matter of State of New York v Matter, 103 AD3d 1113). While that prior appeal was pending, petitioner filed a petition alleging that respondent had violated the conditions and terms of his SIST regimen, and a hearing was held on the petition.

We conclude that respondent’s constitutional and statutory challenges to the treatment he received while in a regimen of SIST are not properly before us inasmuch as they are not preserved for our review (see Matter of State of New York v Gooding, 104 AD3d 1282, 1282-1283). In any event, “there is no evidence that petitioner . . . failed to fulfill its treatment responsibilities or violated respondent’s due process rights” (id. at 1283).

Contrary to respondent’s contention, we conclude that petitioner

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established by clear and convincing evidence at the hearing that respondent is a dangerous sex offender requiring confinement (see Mental Hygiene Law §§ 10.07 [f]; 10.11 [d] [4]; Matter of State of New York v Motzer, 79 AD3d 1687, 1688). Finally, we reject respondent’s further contention that “petitioner was required to ‘refute the possibility of a less restrictive placement’ or that the court was required to specifically address the issue of a less restrictive alternative” (Gooding, 104 AD3d at 1282; see Matter of State of New York v Enrique T., 93 AD3d 158, 166-167, lv dismissed 18 NY3d 976).

Entered: September 27, 2013 Frances E. Cafarell Clerk of the Court