SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
231
CA 09-00462
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, GREEN, AND MARTOCHE, JJ.
IN THE MATTER OF THE STATE OF NEW YORK,
PETITIONER-RESPONDENT,
V MEMORANDUM AND ORDER
DANIEL GIERSZEWSKI, A PATIENT IN THE CUSTODY
OF THE OFFICE OF MENTAL HEALTH,
RESPONDENT-APPELLANT.
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.
Appeal from an order of the Supreme Court, Niagara County
(Richard C. Kloch, Sr., A.J.), entered February 2, 2009 in a
proceeding pursuant to Mental Hygiene Law article 10. The order,
among other things, ordered that respondent be supervised by the
Division of Parole under conditions of strict and intensive
supervision and treatment.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
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 AD3d 1124, 1126).
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
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CA 09-00462
from “a congenital 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 AD3d 14, 29, appeal
dismissed 15 NY3d 848).
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 he abstains 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 AD3d 1057; see also Matter of State of New York v Donald
N., 63 AD3d 1391, 1394). Upon our review of the record, we conclude
that the evidence does not “ ‘preponderate[] so greatly in
[respondent’s] favor that the jury could not have reached its
conclusion on any fair interpretation of the evidence’ ” (Matter of
State of New York v Shawn X., 69 AD3d 165, 169, lv denied 14 NY3d 702;
see Derrick B., 68 AD3d at 1126).
Respondent further contends that he was denied a fair trial based
on the misconduct of the Assistant Attorney General. Respondent
failed to object to the majority of the alleged instances of
misconduct, and he therefore failed to preserve for our review his
contention with respect thereto (see Chrisman, 75 AD3d 1057). In any
event, although we note that several remarks of the Assistant Attorney
General were inappropriate, none of those remarks was “so egregious or
prejudicial as to deny respondent his right to a fair trial” (id. at
1058). We have reviewed respondent’s remaining contentions and
conclude that they are without merit.
Entered: February 18, 2011 Patricia L. Morgan
Clerk of the Court