Matter of State of New York v Rosado

Matter of Matter of State of New York v Rosado 2012 NY Slip Op 02812 Decided on April 17, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 17, 2012
Tom, J.P., Catterson, Richter, Abdus-Salaam, Román, JJ.
7415 250294/08

[*1]In re The State of New York, Petitioner-Respondent,

v

Richard Rosado, Respondent-Appellant.




Marvin Bernstein, Mental Hygiene Legal Service, New York
(Namita Gupta of counsel), for appellant.
Eric T. Schneiderman, Attorney General, New York (Patrick J.
Walsh of counsel), for respondent.

Order of commitment, Supreme Court, Bronx County (Cassandra M. Mullen, J.), entered March 8, 2011, which, upon a finding of mental abnormality made after a jury trial, and a determination made after a dispositional hearing that appellant is a dangerous sex offender requiring confinement, committed appellant to a secure treatment facility, unanimously affirmed, without costs.

Appellant challenges only the court's determination that his father's testimony was not relevant to the first phase of the article 10 proceeding, concerning whether or not he suffered from a mental abnormality. A mental abnormality is defined as "a congenital or acquired condition, disease or disorder that affects the emotional, cognitive or volitional capacity of [the offender] in a manner that predisposes him or her to the commission of conduct constituting a sex offense and that results in [the offender] having serious difficulty in controlling such conduct" (Mental Hygiene Law § 10.03[i]). Appellant's father subsequently testified in the dispositional phase of the proceedings concerning the arrangements he had made for appellant's return to the community.

The court properly exercised its broad discretion in rejecting the proposed evidence in the first phase of the trial on the grounds of materiality and relevance (see Mayorga v Jocarl & [*2]Ron Co., 41 AD3d 132, 134 [2007], appeal dismissed 9 NY3d 996 [2007]). Appellant's father's testimony did not relate to appellant's mental condition and was properly reserved for the later phase of the proceedings.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 17, 2012

CLERK