STATE OF NEW YORK v. MATTER, MICHAEL ( 2013 )


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  •         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
    -2-                          955
    CA 12-01123
    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
    

Document Info

Docket Number: CA 12-01123

Filed Date: 9/27/2013

Precedential Status: Precedential

Modified Date: 10/8/2016