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In the Matter of the State of New York v. Lerryl Smith

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


June 10, 2011

IN THE MATTER OF THE STATE OF NEW YORK, PETITIONER-RESPONDENT,
v.
LERRYL SMITH,
RESPONDENT-APPELLANT.

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.

Matter of State of New York v Smith

Appellate Division, Fourth 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 June 10, 2011

PRESENT: SMITH, J.P., FAHEY, CARNI, LINDLEY, AND GORSKI, JJ.

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

20110610

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