21916, from Cent. N.Y. Psychiatric Ctr. Pursuant to Mental Hygiene Law Section 10.09 v. State (In re Application for Discharge of Luis S.), 954

• Citation: 88 N.Y.S.3d 748,166 A.D.3d 1550
• Decision Date: 16 November 2018
• Docket Number: CA 17–00470,954
• Parties: In the Matter of the Application for Discharge of LUIS S., Consecutive No. 21916, from Central New York Psychiatric Center Pursuant to Mental Hygiene Law Section 10.09, Petitioner–Appellant, v. STATE of New York, New York State Office of Mental Health, and New York State Department of Corrections and Community Supervision, Respondents–Respondents.
• Court: New York Supreme Court — Appellate Division

166 A.D.3d 1550
88 N.Y.S.3d 748

In the Matter of the Application for Discharge of LUIS S., Consecutive No. 21916, from Central New York Psychiatric Center Pursuant to Mental Hygiene Law Section 10.09, Petitioner–Appellant,
v.
STATE of New York, New York State Office of Mental Health, and New York State Department of Corrections and Community Supervision, Respondents–Respondents.

954
CA 17–00470

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: November 16, 2018

SARAH M. FALLON, DIRECTOR, MENTAL HYGIENE LEGAL SERVICE, UTICA (PATRICK T. CHAMBERLAIN OF COUNSEL), FOR PETITIONER–APPELLANT.

BARBARA D. UNDERWOOD, ATTORNEY GENERAL, ALBANY (FREDERICK A. BRODIE OF COUNSEL), FOR RESPONDENTS–RESPONDENTS.

PRESENT: WHALEN, P.J., SMITH, DEJOSEPH, TROUTMAN, AND WINSLOW, JJ.

88 N.Y.S.3d 750

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Petitioner commenced this proceeding pursuant to Mental Hygiene Law article 10, seeking "an order discharging [him] and/or releasing [him] to the community under a regimen of strict and intensive supervision and treatment" (SIST). He appeals from an order, entered after an annual review hearing pursuant to Mental Hygiene Law § 10.09(d), determining that he is a detained sex offender who suffers from a mental abnormality (see § 10.03[i], [r] ), and ordering his release to a regimen of SIST.

Initially, we conclude that petitioner is aggrieved by the order on appeal. It is well settled that a "party who has successfully obtained a[n] ... order in his [or her] favor is not aggrieved by it, and, consequently, has no need and, in fact, no right to appeal" ( Parochial Bus Sys. v. Board of Educ. of City of N.Y., 60 N.Y.2d 539, 544, 470 N.Y.S.2d 564, 458 N.E.2d 1241 [1983] ; see Parker v. Town of Alexandria, 163 A.D.3d 55, 58, 78 N.Y.S.3d 533 [4th Dept. 2018] ). "The major exception to this general rule, however, is that the successful party may appeal ... from a judgment or order in his [or her] favor if he [or she] is nevertheless prejudiced because it does not grant him [or her] complete relief. This exception would include those situations in which the successful party received an award less favorable than he [or she] sought ... or a judgment which denied him [or her] some affirmative claim or substantial right" ( Parochial Bus, 60 N.Y.2d at 544–545, 470 N.Y.S.2d 564, 458 N.E.2d 1241 ).

Here, we conclude that petitioner is aggrieved by the order because, although Supreme Court granted one of the forms of the relief he requested in the alternative, i.e., release under a regimen of SIST, the primary relief he sought was release to the community without conditions, and the denial of that part of the petition involved a substantial right of petitioner (see Matter of Stateway Plaza Shopping Ctr. v. Assessor of City of Watertown, 87 A.D.3d 1359, 1360, 930 N.Y.S.2d 696 [4th Dept. 2011] ; Scharlack v. Richmond Mem. Hosp., 127 A.D.2d 580, 581, 511 N.Y.S.2d 380 [2d Dept. 1987] ; see generally CPLR 5511 ; Armata v. Abbott Labs., 284 A.D.2d 911, 911, 725 N.Y.S.2d 924 [4th Dept. 2001] ).

We reject petitioner's contention that the evidence is not legally sufficient to establish that he has a " ‘[m]ental abnormality’ " ( Mental Hygiene Law § 10.03[i] ), which is defined 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" (id. ). Respondents' evidence at the hearing consisted of the report and testimony of a psychologist who evaluated petitioner and opined that he suffers from unspecified paraphilic disorder, alcohol abuse in remission in a controlled environment, and drug abuse in remission in a controlled environment, which predispose him to commit sex offenses, and that he has serious difficulty in controlling such conduct. Respondents' expert based her opinions on several factors, including her conclusion that petitioner posed a moderate to high risk of reoffending based on, inter alia, the Violence Risk Scale–Sex Offender Version, a test designed to evaluate an individual's risk of

88 N.Y.S.3d 751

sexual violence (see generally Matter of State of New York v. Richard TT., 132 A.D.3d 72, 74, 77–78, 14 N.Y.S.3d 824 [3d Dept. 2015], affd 27 N.Y.3d 718, 37 N.Y.S.3d 765, 59 N.E.3d 500 [2016], cert denied ––– U.S. ––––, 137 S. Ct. 836, 197 L.Ed.2d 75 [2017] ). Respondents' expert also relied on the fact that petitioner has a history of sexually abusing prepubescent females and anally sodomizing them, even while he was in a consensual relationship with an age-appropriate sexual partner; he repeatedly offended in the past, including while he was undergoing sex offender treatment; he previously admitted that he had intense urges or cravings for such acts; and, although he later recanted it, he previously indicated that he engaged in such acts with prepubescent females in addition to those involved in his convictions.

Viewing the evidence in the light most favorable to respondents (see Matter of State of New York v. Floyd Y., 30 N.Y.3d 963, 964, 65 N.Y.S.3d 111, 87 N.E.3d 143 [2017] ; Matter of State of New York v. John S., 23 N..Y3d 326, 348, 991 N.Y.S.2d 532, 15 N.E.3d 287 [2014], rearg. denied 24 N.Y.3d 933, 993 N.Y.S.2d 544, 17...