Case Information
*1 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department 1008
CA 10-01139
PRESENT: SCUDDER, P.J., SMITH, LINDLEY, SCONIERS, AND GORSKI, JJ. IN THE MATTER OF THE STATE OF NEW YORK, PETITIONER-RESPONDENT,
V MEMORANDUM AND ORDER KEITH REEVE, RESPONDENT-APPELLANT.
EMMETT J. CREAHAN, DIRECTOR, MENTAL HYGIENE LEGAL SERVICE, UTICA (JANINE E. FRANK OF COUNSEL), FOR RESPONDENT-APPELLANT.
ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (KATHLEEN M. ARNOLD OF COUNSEL), FOR PETITIONER-RESPONDENT. Appeal from an order of the Supreme Court, Onondaga County (Brian F. DeJoseph, J.), entered January 22, 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. Contrary to respondent’s contention, we conclude that petitioner met its burden of establishing by clear and convincing evidence that respondent suffers from a mental abnormality ( see Matter of State of New York v Farnsworth , 75 AD3d 14, 17, appeal dismissed 15 NY3d 848; see generally § 10.03 [i]). Petitioner also established by clear and convincing evidence that respondent has such an inability to control his behavior that he “is likely to be a danger to others and to commit sex offenses if not confined” (§ 10.07 [f]). Thus, Supreme Court’s determination that respondent should be committed to a secure treatment facility is not against the weight of the evidence ( see generally id .).
“Respondent’s contention regarding the order issued following the probable cause hearing is not properly before us because no appeal lies from such an order” ( Matter of State of New York v Stein , 85 AD3d 1646, 1648; see Mental Hygiene Law § 10.13 [b]). Respondent’s further contention regarding the standard of proof is not preserved for our review inasmuch as he failed to raise it before the trial court ( see Matter of State of New York v Gierszewski , 81 AD3d 1473, lv denied 17 NY3d 702; Matter of State of New York v Chrisman , 75 AD3d 1057; cf.
-2- 1008 CA 10-01139 Matter of State of New York v Rashid , 16 NY3d 1, 13). In any event, respondent’s contention is not properly before us because it is raised for the first time in his reply brief ( see Matter of State of New York v Zimmer [appeal No. 4], 63 AD3d 1563; see generally Turner v Canale , 15 AD3d 960, lv denied 5 NY3d 702).
We have considered respondent’s remaining contentions and conclude that they are without merit.
Entered: September 30, 2011 Patricia L. Morgan
Clerk of the Court