Memorandum: Respondent appeals from an order entered following a jury trial that, inter alia, determined that he is a dangerous sex offender requiring confinement pursuant to Mental Hygiene Law article 10 and committed him to a secure treatment facility. Respondent contends that Supreme Court erred in denying that part of his pretrial motion requesting that the report of a court-appointed psychiatric examiner be provided to the court and the Attorney General only in the event that respondent decided to call the examiner as a witness at trial. According to respondent, such a disclosure would violate his right to due process and equal protection. We reject that contention. Mental Hygiene Law § 10.06 (e) provides that, any time after the filing of a sex offender civil management petition and prior to trial, the court shall order an evaluation of the respondent by a psychiatric examiner upon the respondent’s request. The statute further provides that, “[f]ollowing the evaluation, such psychiatric examiner shall report his or her findings in writing to the respondent or counsel for the respondent, to the attorney general, and to the court ” ( id. [emphasis added]). We conclude that respondent did not meet his burden of establishing that the statute is unconstitutional beyond a reasonable doubt ( see generally Dalton v Pataki , 5 NY3d 243, 255, rearg denied 5 NY3d 783, cert denied 546 US 1032). Indeed, the statute goes beyond the due process required in a civil confinement

-2- 1165 CA 11-01975 proceeding inasmuch as a respondent is entitled to the appointment of a psychiatric examiner simply upon request and without a showing of necessity ( cf. Goetz v Crosson , 967 F2d 29, 36-37). Respondent failed to preserve for our review his further contention that his privilege against self-incrimination was violated and, in any event, that contention is without merit ( see § 10.08 [a]).

We reject respondent’s contention that the admission in evidence of testimony from his criminal trial at this civil proceeding violated his right of confrontation. Mental Hygiene Law § 10.08 (g) specifically allows the admission of such evidence, and the right of confrontation applicable in criminal cases does not apply to this civil proceeding ( see Matter of State of New York v Wilkes [appeal No. 2], 77 AD3d 1451, 1451-1452). Finally, contrary to respondent’s contention, petitioner established by clear and convincing evidence that respondent has an inability to control his behavior such that he “is likely to be a danger to others and to commit sex offenses if not confined” (§ 10.07 [f]).

Entered: November 16, 2012 Frances E. Cafarell

Clerk of the Court