Hyperlawhypertext legal database State v. Kenneth W. 131 A.D.3d 872

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State v. Kenneth W.

131 A.D.3d 872 Court N.Y. App. Div. Decision date 2015-09-29 English

Judges Concur — Gonzalez, P.J., Sweeny, Renwick, Saxe and Feinman, JJ.

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p. 872
(September 29, 2015)
In the Matter of State of New York, Respondent, v Kenneth W., Appellant.
[16 NYS3d 733]

Order, Supreme Court, New York County (Daniel Me

p. 873
Cullough, J.), entered on or about January 28, 2014, which, upon a jury verdict that respondent suffers from a mental abnormality, determined, after a dispositional hearing, that he is a dangerous sex offender requiring confinement in a secure treatment facility, unanimously reversed, on the law, without costs, and the petition dismissed.

The verdict that respondent suffers from a mental abnormality is based on legally insufficient evidence. Evidence of an independent mental abnormality diagnosis is required to establish a mental abnormality within the meaning of Mental Hygiene Law article 10 (see Matter of State of New York v Donald DD., 24 NY3d 174 , 190-191 [2014]). Here, we find that based on the trial evidence, a rational factfinder could not conclude that sexual preoccupation is an independent mental abnormality. The State failed to present evidence that sexual preoccupation is a condition that predisposes one to commit a sex offense and results in serious difficulty in controlling the sexually offending conduct (see Matter of State of New York v Gen C., 128 AD3d 467 [1st Dept 2015]; Mental Hygiene Law § 10.03 [i]).

Concur — Gonzalez, P.J., Sweeny, Renwick, Saxe and Feinman, JJ.

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