Third Department, October 22, 2009

APPEARANCES OF COUNSEL

Sheila E. Shea, Mental Hygiene Legal Service, Albany (Hollie S. Levine of counsel), for appellant.

Andrew M. Cuomo, Attorney General, Albany (Andrew B. Ayers of counsel), for respondent.

Cardona, P.J.

Respondent was convicted in May 1992 of sodomy in the first degree, rape in the first degree and endangering the welfare of a child as a result of his sexual abuse of a six-year-old girl (hereinafter the victim) in 1991. Consequently, respondent was sentenced to a prison term of 5 to 15 years with five years of postrelease supervision. After serving 10 years of that sentence, he was released on parole in May 2002. Notably, among the special conditions of respondent's parole was the prohibition of{**69 AD3d at 168} contact with any person under the age of 18 without written permission from his parole officer. Thereafter, respondent became the subject of parole violation charges for, among other things, his repeated contact with a three-year-old boy and his failure to disclose that contact to his parole officer.^[FN1] As a result of positive findings on several of the [*2]charges, respondent's parole was revoked and he was imprisoned for 29 months until released to parole supervision in October 2005.

In June 2007, prior to the expiration of respondent's postrelease supervision, petitioner commenced this proceeding pursuant to Mental Hygiene Law article 10 alleging that respondent was a sex offender requiring civil management.^[FN2] A trial was held in March 2008, after which the jury rendered a verdict finding that respondent "suffers from a mental abnormality that predisposes him to commit sex offenses and results in his having serious difficulty in controlling such conduct." Supreme Court then held a hearing to determine whether respondent is a dangerous sex offender in need of confinement or if imposition of a regimen of strict and intensive supervision and treatment (hereinafter SIST) would be adequate (see Mental Hygiene Law § 10.07 [f]). Following presentation of further proof, the court issued a final order directing, among other things, that respondent be subject to a regimen of SIST, prompting this appeal.

Initially, respondent contends that the jury's finding that he suffers from a mental abnormality is against the weight of the evidence. According to respondent, "[t]he conflicting expert opinion" presented at trial "could not have permitted the jury" to find that petitioner carried its burden to prove mental abnormality by clear and convincing evidence (see Mental Hygiene Law § 10.07 [d]). We disagree. Notably, a jury verdict is entitled to great deference given the jury's opportunity to evaluate the weight and credibility of conflicting expert testimony (see Matter of State of New York v Donald N., 63 AD3d 1391, 1394 [2009]). Thus,{**69 AD3d at 169}

"if sufficient evidence exists, the verdict will be sustained even if other evidence in the record would support a contrary result. Indeed, a jury verdict may be set aside as against the weight of the evidence only when the evidence preponderates so greatly in the movant's favor that the jury could not have reached its conclusion on any fair interpretation of the evidence" (Matter of Daniel XX., 53 AD3d 819, 820 [2008] [citations and internal quotation marks omitted]).

At trial, petitioner offered the testimony of, among others, two licensed experts, Jennifer Berryman, a psychologist with experience in treating sex offenders, and Thomas Lazzaro, a psychologist whose primary focus was forensic psychology. Berryman and Lazzaro separately concluded that respondent suffers from a mental abnormality, which is defined by Mental Hygiene Law article 10 as "a congenital or acquired condition, disease or disorder that affects the emotional, cognitive, or volitional capacity of a person in a manner that predisposes him or her to the commission of conduct constituting a sex offense and that results in that person having serious difficulty in controlling such conduct" (Mental Hygiene Law § 10.03 [i]). [*3]

In that regard, Berryman testified that, in evaluating respondent, she reviewed records pertaining to respondent's incarceration, as well as actuarial assessments in his file, and conducted interviews with respondent, respondent's psychologist and the victim (who was 23 years old at the time of trial). As support for her conclusion that respondent has a mental abnormality, Berryman cited, among other things, respondent's untruthfulness and lack of empathy for his victim, his inability to cope effectively and maturely with his anger, his exercise of "sadistic control" as described by the victim in the course of the abuse and his failure to meet the goals of his prior sex offender treatment by avoiding contact with prepubescent children.

Lazzaro testified that, although he was initially skeptical that respondent met the definition of a pedophile who suffered from a mental abnormality, after interviews with respondent, the victim and her mother, as well as a review of respondent's actuarial assessments and other reports in respondent's file, he concluded that respondent did in fact meet that definition. Although Lazzaro, as did Berryman, noted that respondent did not technically meet all of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental{**69 AD3d at 170} Disorders (hereinafter DSM-IV) criteria for pedophilia because the sexual abuse described by the victim occurred over a four-month period as opposed to the six-month period listed therein,^[FN3] he nevertheless opined that such a diagnosis was appropriate based upon respondent's pattern of behavior. He elaborated that the DSM-IV makes clear that the diagnoses included therein should not be used "in a cookbook fashion." Rather, the manual provides that "the exercise of clinical judgment may justify giving a certain diagnosis . . . even though the clinical presentation falls just short of meeting the full criteria . . . as long as the symptoms that are present are persistent and severe." Lazzaro diagnosed respondent as a pedophile with "traits of histrionic personality disorder, which together satisfied the criteria for mental abnormality under [Mental Hygiene Law article 10]." Lazzaro indicated that respondent's continued contact with children, despite the conditions of parole, suggested to him that respondent "doesn't learn from experience[,] . . . he has a sense of narcissism, a sense of entitlement that he can behave any way he wants and get away with it."

In response, respondent offered the expert testimony of Charles Ewing, a board certified forensic psychologist who opined that respondent does not have a mental abnormality. His opinion was based on, among other things, his conclusion that respondent had no diagnosable mental disorder, the results of assessments scoring respondent at the lowest risk of reoffending^[FN4] [*4]and respondent's prior participation in sex offender treatment. Ewing disagreed with Berryman and Lazzaro as to the diagnosis of pedophilia, citing respondent's failure to strictly meet all of the DSM-IV criteria. Ewing stated that when he interviewed respondent, he found credible respondent's assertions that, among other things, he felt remorse for his past conduct and never had sexual fantasies about children. According to Ewing,{**69 AD3d at 171} respondent indicated to him that anger against the victim's mother, not sex, was respondent's primary motive when he abused the victim, even though respondent also admitted that he was sexually aroused during the abuse.

We do not agree with respondent's argument that, given Ewing's excellent credentials in the field of forensic psychology, the jury should have given his testimony greater weight and we should reverse on that basis. While there is no dispute concerning Ewing's qualifications, Berryman and Lazzaro were also qualified, and the jury was free to make its own credibility determinations and weigh the competing expert testimonies accordingly.

Additionally, respondent argues that the verdict should be reversed based upon Ewing's opinion that the clinical diagnosis of pedophilia by Berryman and Lazzaro was not appropriate because of his view that all of the DSM-IV criteria must be followed strictly in a forensic setting. However, as was set forth in the evidence submitted to the jury, the DSM-IV does not rule out the clinical diagnosis of a mental disorder in the forensic setting,^[FN5] and we decline to disturb the jury's verdict on that basis. As it stands, given the quality of the proof supporting the opinions of Berryman and Lazzaro, we find no basis to conclude that the jury's verdict is against the weight of the evidence.

Respondent next asserts that numerous evidentiary errors, individually and cumulatively, deprived him of a fair trial. Upon review of these claims, we disagree. Supreme Court did not err in allowing the victim to testify at trial inasmuch as her testimony was offered as evidence of respondent's mental abnormality and not for the purpose of relitigating his prior criminal convictions (see Mental Hygiene Law § 10.07 [c]). Furthermore, since petitioner's experts utilized information from their interviews with the victim in rendering their findings as to respondent, the victim's testimony afforded the jury{**69 AD3d at 172} its own opportunity to evaluate her [*5]credibility. Also, given that Mental Hygiene Law § 10.07 (c) states that "the issue of whether [respondent's] offense was sexually motivated shall be determined by the jury," here, the victim's detailed account of the abuse was clearly relevant as to that issue in light of respondent's position that the crimes against the victim were motivated by revenge, not sexual gratification.^[FN6]

As for other alleged trial errors, respondent asserts that evidence pertaining to uncharged crimes in 2002 was improperly admitted. Notably, prior to trial, Supreme Court determined that the medical records of the three-year-old boy who was the subject of the 2002 parole violation charges could be admitted as a business record (see CPLR 4518), but the court ruled that the child's mother was not allowed to testify as to what the child told her regarding the alleged sexual abuse. Although respondent maintains that any reference to uncharged crimes is inappropriate, we note that evidence of that nature can be admissible even in criminal trials, where a higher legal standard prevails, as long as it is relevant and not unduly prejudicial (see e.g. People v Leeson, 12 NY3d 823, 826-827 [2009]). In this proceeding, the issue of mental abnormality is the primary inquiry, and respondent points to no provision in Mental Hygiene Law article 10 that limits the proof to acts that resulted in criminal convictions when considering that issue. Accordingly, we find no basis to disturb the jury's verdict on that ground.^[FN7]

We turn next to respondent's contention that Supreme Court committed reversible error by furnishing the dictionary definition of "pedophilia" to the jury in response to its request during deliberations. Since the dictionary definition provided, to wit, "sexual attraction felt by an adult toward a child or children," was not as detailed as the DSM-IV diagnostic criteria for{**69 AD3d at 173} pedophilia, respondent maintains that providing the jury with the dictionary definition "invited the jury to abandon or disregard expert testimony . . . in favor of its own lay interpretation" of the word.

While we are persuaded that the dictionary definition had the potential for causing confusion and should not have been given, we conclude, under the particular circumstances herein, that respondent was not deprived of a fair trial (cf. People v Carney, 222 AD2d 1006, 1006 [1995], lv denied 88 NY2d 877 [1996]). Significantly, not only was the jury provided a [*6]copy of the DSM-IV criteria as well, ample testimony emphasized the authoritativeness of the DSM-IV diagnosis of pedophilia, and all three experts indicated that this was the resource utilized in the field of psychology when considering that diagnosis. Notably, it was emphasized to the jury that a diagnosis of pedophilia was insufficient in and of itself to end the jury's inquiry, and Supreme Court's instructions specifically provided that a verdict against respondent should be rendered only if the jury concluded that petitioner had proved by clear and convincing evidence that respondent suffered from a mental abnormality as defined by the statute (see Mental Hygiene Law § 10.03 [i]).^[FN8]

Finally, respondent challenges the regimen of SIST in Supreme Court's order as infringing upon his parental and marital rights. He argues that the order improperly vests the Division of Parole with "supervisory discretion regarding the approval or denial of specific privileges" including, among other things, whether he can resume living with his family, have visitation with his son or possess a photograph of his son. Respondent equates these provisions to a deprivation of a fundamental liberty interest without due process of law and in circumvention of the Family Ct Act. Respondent also maintains that the order impermissibly delegates judicial authority to the Division of Parole. We disagree.

Notably, in accordance with Mental Hygiene Law article 10, respondent had the benefit of a trial to determine whether he suffered from a mental abnormality and a hearing to determine the appropriate disposition, following which Supreme Court determined the conditions to which respondent would be{**69 AD3d at 174} subjected, and it reviewed those conditions with counsel before issuing the written order (see Mental Hygiene Law § 10.11 [a] [2]). Pursuant to the statute, respondent was placed "in the custody and control of the state division of parole" (Mental Hygiene Law § 10.11 [c]). Supreme Court further ordered the Division of Parole to exercise supervisory discretion regarding privileges "within the parameters of the stated conditions."

Mental Hygiene Law § 10.11 (a) (1) provides that, among other things, the Division of Parole is authorized to recommend supervision requirements, including "specification of residence or type [of] residence [and] prohibition of contact with identified . . . potential victims." Witnesses from the Division of Parole explained at respondent's hearing why certain restrictions upon a sex offender's living arrangements, possession of photographs and contact with family members are necessary for treatment, at least initially, especially when pedophilia is at issue. Nevertheless, at that hearing, respondent's concerns as to the restrictions sought to be imposed regarding, among other things, contact with his son were set forth in great detail. Respondent's counsel urged Supreme Court to take these issues into account when determining how much supervision would be delegated to the Division of Parole, given that the statute only allows a respondent an opportunity to petition "for modification or termination" of his SIST every two years (Mental Hygiene Law § 10.11 [f]). In clear response to those concerns, Supreme Court's final order specifically provided that respondent may petition the court "for review and modification of the provisions concerning visitation with his infant son and permission to possess and carry photographs of his son upon expiration of six months from the date[ ] of this [o]rder, and the [c]ourt retained jurisdiction for this purpose" (emphasis added).

While we recognize the importance of parental rights (see e.g. Matter of Bennett v Jeffreys, 40 NY2d 543, 546 [1976]; Matter of Joseph LL. v Cynthia KK., 97 AD2d 263 [1983], affd 63 NY2d 1014 [1984]), we cannot agree with the implication from respondent's arguments that Supreme Court's order constituted a de facto finding of unfitness or a termination of his parental rights. To the contrary, the provision in the court's order retaining jurisdiction and affording him the opportunity to petition the court for further relief in six months demonstrates that no such finding was contemplated by the court. In our view, this provision reflects a reasonable balance between the restrictions required for achieving the SIST's goals of treatment{**69 AD3d at 175} and protection while recognizing the importance of the parent-child bond. Accordingly, we are unpersuaded that the terms of the order violated respondent's parental rights.^[FN9]

Although respondent also argues that his "marital rights" will be infringed due to restrictions imposed by the Division of Parole, the necessity of an initial residence in the vicinity of the location where sex offender treatment was to be held was reasonable, especially given the proof as to the lack of cooperation from respondent's family regarding his restrictions as to children when he was previously on parole. In any event, the order does not prohibit respondent from maintaining a relationship with his wife, and we find no basis to disturb this order.

Respondent's remaining arguments not specifically addressed herein have been examined and found to be unpersuasive.

Peters, Lahtinen, Malone Jr. and Stein, JJ., concur.

Ordered that the order is affirmed, without costs.