STATE OF NEW YORK v. SMITH, LERRYL

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department CA 10-01491 PRESENT: SMITH, J.P., FAHEY, CARNI, LINDLEY, AND GORSKI, JJ.

IN THE MATTER OF THE STATE OF NEW YORK, PETITIONER-RESPONDENT, V MEMORANDUM AND ORDER LERRYL SMITH, RESPONDENT-APPELLANT.

EMMETT J. CREAHAN, DIRECTOR, MENTAL HYGIENE LEGAL SERVICE, BUFFALO (KEVIN S. DOYLE OF COUNSEL), FOR RESPONDENT-APPELLANT.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (MICHAEL CONNOLLY OF COUNSEL), FOR PETITIONER-RESPONDENT.

Appeal from an order of the Supreme Court, Erie County (John L.

Michalski, A.J.), entered April 30, 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. We reject respondent’s contention that petitioner failed to establish by clear and convincing evidence at the dispositional hearing that “respondent is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility” (§ 10.07 [f]). We are “[m]indful that Supreme Court was in the best position to evaluate the weight and credibility of the conflicting psychiatric testimony presented . . ., [and] we defer to the court’s decision to credit [the testimony of petitioner’s] expert” (Matter of State of New York v Pierce, 79 AD3d 1779, 1781, lv denied 16 NY3d 712 [internal quotation marks omitted]; see Matter of State of New York v Motzer, 79 AD3d 1687, 1688).

Entered: June 10, 2011 Patricia L. Morgan Clerk of the Court