Matter of State of New York v Kenneth W.

Matter of State of New York v Kenneth W. 2015 NY Slip Op 06955 Decided on September 29, 2015 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 September 29, 2015
Gonzalez, P.J., Sweeny, Renwick, Saxe, Feinman, JJ.
15614 30012/11

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

v

Kenneth W., Respondent-Appellant.

Marvin Bernstein, Mental Hygiene Legal Service, New York (Margo Flug of counsel), for appellant.

Eric T. Schneiderman, Attorney General, New York (Valerie Figueredo of counsel), for respondent.

Order, Supreme Court, New York County (Daniel McCullough, J.), entered on or about January 28, 2014, which, upon a jury verdict that respondent suffers from a mental abnormality, determined, after a dispositional hearing, that he is a dangerous sex offender requiring confinement in a secure treatment facility, unanimously reversed, on the law, without costs, and the petition dismissed.

The verdict that respondent suffers from a mental abnormality is based on legally insufficient evidence. Evidence of an independent mental abnormality diagnosis is required to establish a mental abnormality within the meaning of Mental Hygiene Law article 10 (see Matter of State of New York v Donald DD., 24 NY3d 174, 190-191 [2014]). Here, we find that based on the trial evidence, a rational factfinder could not conclude that sexual preoccupation is an independent mental abnormality. The State failed to present evidence that sexual preoccupation is a condition that predisposes one to commit a sex offense and results in serious difficulty in controlling the sexually offending conduct (see Matter of State of New York v Gen C., __AD3d__, 2015 NY Slip Op 04041 [1st Dept 2015]; Mental Hygiene Law § 10.03[i]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: SEPTEMBER 29, 2015

CLERK