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State v. Shawn X.

October 22, 2009

IN THE MATTER OF STATE OF NEW YORK, RESPONDENT,
v.
SHAWN X., APPELLANT.



The opinion of the court was delivered by: Cardona, P.J.

OPINION AND ORDER

Calendar Date: September 11, 2009

Before: Cardona, P.J., Peters, Lahtinen, Malone Jr. and Stein, JJ.

Appeal from an order of the Supreme Court (Garry, J.), entered June 10, 2008 in Schuyler County, which, in a proceeding pursuant to Mental Hygiene Law article 10, found respondent to be a sex offender requiring strict and intensive supervision and treatment.

Respondent was convicted in May 1992 of sodomy in the first degree, rape in the first degree and endangering the welfare of a child as a result of his sexual abuse of a six-year-old girl (hereinafter the victim) in 1991. Consequently, respondent was sentenced to a prison term of 5 to 15 years with five years of postrelease supervision. After serving 10 years of that sentence, he was released on parole in May 2002. Notably, among the special conditions of respondent's parole was the prohibition of contact with any person under the age of 18 without written permission from his parole officer. Thereafter, respondent became the subject of parole violation charges for, among other things, his repeated contact with a three-year-old boy and his failure to disclose that contact to his parole officer.*fn1 As a result of positive findings on several of the charges, respondent's parole was revoked and he was imprisoned for 29 months until released to parole supervision in October 2005.

In June 2007, prior to the expiration of respondent's postrelease supervision, petitioner commenced this proceeding pursuant to Mental Hygiene Law article 10 alleging that respondent was a sex offender requiring civil management.*fn2 A trial was held in March 2008, after which the jury rendered a verdict finding that respondent "suffers from a mental abnormality that predisposes him to commit sex offenses and results in his having serious difficulty in controlling such conduct." Supreme Court then held a hearing to determine whether respondent is a dangerous sex offender in need of confinement or if imposition of a regimen of strict and intensive supervision and treatment (hereinafter SIST) would be adequate (see Mental Hygiene Law § 10.07 [f]). Following presentation of further proof, the court issued a final order directing, among other things, that respondent be subject to a regimen of SIST, prompting this appeal.

Initially, respondent contends that the jury's finding that he suffers from a mental abnormality is against the weight of the evidence. According to respondent, "[t]he conflicting expert opinion" presented at trial "could not have permitted the jury" to find that petitioner carried its burden to prove mental abnormality by clear and convincing evidence (see Mental Hygiene Law § 10.07 [d]). We disagree. Notably, a jury verdict is entitled to great deference given the jury's opportunity to evaluate the weight and credibility of conflicting expert testimony (see Matter of State of New York v Donald N., 63 AD3d 1391, 1394 [2009]). Thus, "if sufficient evidence exists, the verdict will be sustained even if other evidence in the record would support a contrary result. Indeed, a jury verdict may be set aside as against the weight of the evidence only when the evidence preponderates so greatly in the movant's favor that the jury could not have reached its conclusion on any fair interpretation of the evidence" (Matter of Daniel XX., 53 AD3d 819, 820 [2008] [citations and internal quotation marks omitted]).

At trial, petitioner offered the testimony of, among others, two licensed experts, Jennifer Berryman, a psychologist with experience in treating sex offenders, and Thomas Lazzaro, a psychologist whose primary focus was forensic psychology. Berryman and Lazzaro separately concluded that respondent suffers from a mental abnormality, which is defined by Mental Hygiene Law article 10 as "a congenital or acquired condition, disease or disorder that affects the emotional, cognitive, or volitional capacity of a person in a manner that predisposes him or her to the commission of conduct constituting a sex offense and that results in that person having serious difficulty in controlling such conduct" (Mental Hygiene Law § 10.03 [i]).

In that regard, Berryman testified that, in evaluating respondent, she reviewed records pertaining to respondent's incarceration, as well as actuarial assessments in his file, and conducted interviews with respondent, respondent's psychologist and the victim (who was 23 years old at the time of trial). As support for her conclusion that respondent has a mental abnormality, Berryman cited, among other things, respondent's untruthfulness and lack of empathy for his victim, his inability to cope effectively and maturely with his anger, his exercise of "sadistic control" as described by the victim in the course of the abuse and his failure to meet the goals of his prior sex offender treatment by avoiding contact with prepubescent children.

Lazzaro testified that, although he was initially skeptical that respondent met the definition of a pedophile who suffered from a mental abnormality, after interviews with respondent, the victim and her mother, as well as a review of respondent's actuarial assessments and other reports in respondent's file, he concluded that respondent did in fact meet that definition. Although Lazzaro, as did Berryman, noted that respondent did not technically meet all of the American Psychiatric Association's Diagnostic and Statistic Manual of Mental Disorders (hereinafter DSM-IV) criteria for pedophilia because the sexual abuse described by the victim occurred over a four-month period as opposed to the six-month period listed therein,*fn3 he nevertheless opined that such a diagnosis was appropriate based upon respondent's pattern of behavior. He elaborated that the DSM-IV makes clear that the diagnoses included therein should not be used "in a cookbook fashion." Rather, the manual provides that "the exercise of clinical judgment may justify giving a certain diagnosis . . . even though the clinical presentation falls just short of meeting the full criteria . . . as long as the symptoms that are present are persistent and severe." Lazzaro diagnosed respondent as a pedophile with "traits of histrionic personality disorder, which together satisfied the criteria for mental abnormality under [Mental Hygiene Law article 10]." Lazzaro indicated that respondent's continued contact with children, despite the conditions of parole, suggested to him that respondent "doesn't learn from experience[,] . . . he has a sense of narcissism, a sense of entitlement that he can behave any way he wants and get away with it."

In response, respondent offered the expert testimony of Charles Ewing, a board certified forensic psychologist who opined that respondent does not have a mental abnormality. His opinion was based on, among other things, his conclusion that respondent had no diagnosable mental disorder, the results of assessments scoring respondent at the lowest risk of reoffending*fn4 and respondent's prior participation in sex offender treatment. Ewing disagreed with Berryman and Lazzaro as to the diagnosis of pedophilia, citing respondent's failure to strictly meet all of the DSM-IV criteria. Ewing stated that when he interviewed respondent, he found credible respondent's assertions that, among other things, he felt remorse for his past conduct and never had sexual fantasies about children. According to Ewing, respondent indicated to him that anger against the victim's mother, not sex, was respondent's primary motive when he abused the victim, even though respondent also admitted that he was sexually aroused during the abuse.

We do not agree with respondent's argument that, given Ewing's excellent credentials in the field of forensic psychology, the jury should have given his testimony greater weight and we should reverse on that basis. While there is no dispute concerning Ewing's qualifications, Berryman and Lazzaro were also qualified, and the jury was free to make its own credibility determinations and weigh the competing expert testimonies accordingly.

Additionally, respondent argues that the verdict should be reversed based upon Ewing's opinion that the clinical diagnosis of pedophilia by Berryman and Lazzaro was not appropriate because of his view that all of the DSM-IV criteria must be followed strictly in a forensic setting. However, as was set forth in the evidence submitted to the jury, the DSM-IV does not rule out the clinical diagnosis of a mental disorder in the forensic setting,*fn5 and we decline to disturb the jury's verdict on that basis. As it stands, given the quality of the proof supporting the opinions of Berryman and Lazzaro, we find no basis to conclude that the jury's verdict is against the weight of the evidence.

Respondent next asserts that numerous evidentiary errors, individually and cumulatively, deprived him of a fair trial. Upon review of these claims, we disagree. Supreme Court did not err in allowing the victim to testify at trial inasmuch as her testimony was offered as evidence of respondent's mental abnormality and not for the purpose of relitigating his prior criminal convictions (see Mental Hygiene Law § 10.07 [c]). Furthermore, since petitioner's experts utilized information from their interviews with the victim in rendering their findings as to respondent, the victim's testimony afforded the jury its own opportunity to evaluate her credibility. Also, given that Mental Hygiene Law § 10.07 (c) states that "the issue of whether [respondent's] offense was sexually motivated shall be determined by the jury," ...


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