STATE OF NEW YORK v. REEVE, KEITH ( 2011 )


Menu:
  •         SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    1008
    CA 10-01139
    PRESENT: SCUDDER, P.J., SMITH, LINDLEY, SCONIERS, AND GORSKI, JJ.
    IN THE MATTER OF THE STATE OF NEW YORK,
    PETITIONER-RESPONDENT,
    V                             MEMORANDUM AND ORDER
    KEITH REEVE, RESPONDENT-APPELLANT.
    EMMETT J. CREAHAN, DIRECTOR, MENTAL HYGIENE LEGAL SERVICE, UTICA
    (JANINE E. FRANK OF COUNSEL), FOR RESPONDENT-APPELLANT.
    ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (KATHLEEN M. ARNOLD OF
    COUNSEL), FOR PETITIONER-RESPONDENT.
    Appeal from an order of the Supreme Court, Onondaga County (Brian
    F. DeJoseph, J.), entered January 22, 2010 in a proceeding pursuant to
    Mental Hygiene Law article 10. The order 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, we conclude that
    petitioner met its burden of establishing by clear and convincing
    evidence that respondent suffers from a mental abnormality (see Matter
    of State of New York v Farnsworth, 75 AD3d 14, 17, appeal dismissed 15
    NY3d 848; see generally § 10.03 [i]). Petitioner also established by
    clear and convincing evidence that respondent has such an inability to
    control his behavior that he “is likely to be a danger to others and
    to commit sex offenses if not confined” (§ 10.07 [f]). Thus, Supreme
    Court’s determination that respondent should be committed to a secure
    treatment facility is not against the weight of the evidence (see
    generally id.).
    “Respondent’s contention regarding the order issued following the
    probable cause hearing is not properly before us because no appeal
    lies from such an order” (Matter of State of New York v Stein, 85 AD3d
    1646, 1648; see Mental Hygiene Law § 10.13 [b]). Respondent’s further
    contention regarding the standard of proof is not preserved for our
    review inasmuch as he failed to raise it before the trial court (see
    Matter of State of New York v Gierszewski, 81 AD3d 1473, lv denied 17
    NY3d 702; Matter of State of New York v Chrisman, 75 AD3d 1057; cf.
    -2-                          1008
    CA 10-01139
    Matter of State of New York v Rashid, 16 NY3d 1, 13). In any event,
    respondent’s contention is not properly before us because it is raised
    for the first time in his reply brief (see Matter of State of New York
    v Zimmer [appeal No. 4], 63 AD3d 1563; see generally Turner v Canale,
    15 AD3d 960, lv denied 5 NY3d 702).
    We have considered respondent’s remaining contentions and
    conclude that they are without merit.
    Entered:   September 30, 2011                   Patricia L. Morgan
    Clerk of the Court
    

Document Info

Docket Number: CA 10-01139

Filed Date: 9/30/2011

Precedential Status: Precedential

Modified Date: 10/8/2016