State v. Gierszewski

• Decision Date: 18 February 2011
• Citation: 81 A.D.3d 1473,916 N.Y.S.2d 729
• Parties: In the Matter of the STATE of New York, Petitioner-Respondent, v. Daniel GIERSZEWSKI, a Patient in the Custody of the Office of Mental Health, Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

916 N.Y.S.2d 729

81 A.D.3d 1473

In the Matter of the STATE of New York, Petitioner-Respondent,

v.Daniel GIERSZEWSKI, a Patient in the Custody of the Office of Mental Health, Respondent-Appellant.

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

Feb. 18, 2011.

Davison Law Office, PLLC, Canandaigua (Mark C. Davison of Counsel), for Respondent-Appellant.

Andrew M. Cuomo, Attorney General, Albany (Marlene O. Tuczinski of Counsel), for Petitioner-Respondent.

PRESENT: CENTRA, J.P., FAHEY, LINDLEY, GREEN, AND MARTOCHE, JJ.

MEMORANDUM:

Respondent appeals from an order pursuant to Mental Hygiene Law article 10, entered following a jury trial determining that he has a mental abnormality within the meaning of Mental Hygiene Law § 10.03(i) and is a sex offender requiring strict and intensive supervision. We reject respondent's contention that the evidence is legally insufficient to support a finding that he suffers from a mental abnormality within the meaning of the statute. "A court may set aside a jury verdict as legally [insufficient] and enter judgment as a matter of law only where 'there is simply no valid line of reasoning and permissible inferences [that] could possibly lead rational men to the conclusion reached by the jury on the basis of the evidence presented at trial' " ( Matter of State of New York v. Derrick B., 68 A.D.3d 1124, 1126, 892 N.Y.S.2d 140).

Here, petitioner's two expert witnesses, a psychologist and a psychiatrist, testified at trial that respondent suffers from paraphilia and presents a significant risk of committing a sex offense in the future. Petitioner therefore sustained its burden of establishing by clear and convincing evidence that respondent suffers from "acongenital or acquired condition, disease or disorder that affects [his] emotional, cognitive[ ] or volitional capacity ... in a manner that predisposes him ... to the commission of conduct constituting a sex offense and that results in [him] having serious difficulty in controlling such conduct" (§ 10.03[i]; see generally Matter of State of New York v. Farnsworth, 75 A.D.3d 14, 29, 900 N.Y.S.2d 548, appeal dismissed 15 N.Y.3d 848, 909 N.Y.S.2d 20, 935 N.E.2d 812).

We further conclude that the verdict is not against the weight of the evidence. Although respondent's expert witness testified that respondent does not suffer from a mental abnormality and does not present a serious risk of reoffending, provided that heabstains from the use of alcohol, "[t]he jury verdict is entitled to great deference based on the jury's opportunity to evaluate the weight and credibility of conflicting expert testimony" ( Matter of State of New York v. Chrisman, 75 A.D.3d 1057, 905 N.Y.S.2d 414; see also Matter of State of New York v. Donald N., 63 A.D.3d 1391, 1394, 881 N.Y.S.2d 542). Upon our review of the record, we conclude that the evidence does not " 'preponderate[ ] so...