State v. Gierszewski, 81 A.D.3d 1473 (N.Y. App. Div. 2011). · Go Syfert
State v. Gierszewski, 81 A.D.3d 1473 (N.Y. App. Div. 2011). Cases Citing This Book View Copy Cite
46 citation events (46 in the last 25 years) across 1 distinct court.
Strongest positive: Matter of Brandon D. v. State of New York (nyappdiv, 2021-06-11)
Treatment trajectory · 2011 → 2026 · click a year to view as-of
2011 2018 2026
Top citers, strongest first. 28 distinct citers. How cited ↗
discussed Cited as authority (rule) Matter of Brandon D. v. State of New York
N.Y. App. Div. · 2021 · confidence medium
We further conclude that the determination that petitioner has such a mental abnormality is based on a fair interpretation of the evidence and, as a result, is not against the weight of the evidence ( see Matter of State of New York v Orlando T. , 184 AD3d 1149, 1149 [4th Dept 2020]; Matter of State of New York v Gierszewski , 81 AD3d 1473, 1474 [4th Dept 2011], lv denied 17 NY3d 702 [2011]).
discussed Cited as authority (rule) Matter of State of New York v. James R.C. (2×)
N.Y. App. Div. · 2018 · confidence medium
Although respondent's expert testified that respondent did not have a mental abnormality, " [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 Gierszewski , 81 AD3d 1473, 1474 [4th Dept 2011], lv denied 17 NY3d 702 [2011]; see also Matter of State of New York v Parrott , 125 AD3d 1438, 1439 [4th Dept 2015], lv denied 25 NY3d 911 [2015]).
discussed Cited as authority (rule) Matter of State of New York v. Scott W.
N.Y. App. Div. · 2018 · confidence medium
We further conclude that the verdict is not against the weight of the evidence ( see Akgun , 148 AD3d at 1614 ; Matter of State of New York v Gierszewski , 81 AD3d 1473, 1473-1474 [4th Dept 2011], lv denied 17 NY3d 702 [2011]).
discussed Cited as authority (rule) State v. Scholtisek
N.Y. App. Div. · 2016 · confidence medium
In addition, one of petitioner’s experts testified that, despite the fact that respondent has ready accessibility to age-appropriate sexual partners, he continues to pursue children, which, according to petitioner’s expert witness, is an indication “of the strength of that interest and urge, that sex with people his own age isn’t enough.” We therefore conclude that petitioner sustained its burden of establishing by clear and convincing evidence that respondent suffers from “a congenital or acquired condition, disease or disorder that affects the emotional, cognitive, or volitional …
discussed Cited as authority (rule) State v. Scholtisek
N.Y. App. Div. · 2016 · confidence medium
In addition, one of petitioner’s experts testified that, despite the fact that respondent has ready accessibility to age-appropriate sexual partners, he continues to pursue children, which, according to petitioner’s expert witness, is an indication “of the strength of that interest and urge, that sex with people his own age isn’t enough.” We therefore conclude that petitioner sustained its burden of establishing by clear and convincing evidence that respondent suffers from “a congenital or acquired condition, disease or disorder that affects the emotional, cognitive, or volitional …
discussed Cited as authority (rule) State v. Peters
N.Y. App. Div. · 2016 · confidence medium
Although respondent’s psychologist testified that respondent suffered from post-traumatic stress disorder stemming from his own sexual abuse as a child and that his sex offenses did not support a diagnosis of pedophilic disorder or a conclusion that he suffers from a mental abnormality, the jury’s verdict is entitled to deference, and 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 Gierszewski, 81 AD3d 1473, 1474 [20…
discussed Cited as authority (rule) State v. Peters
N.Y. App. Div. · 2016 · confidence medium
Although respondent’s psychologist testified that respondent suffered from post-traumatic stress disorder stemming from his own sexual abuse as a child and that his sex offenses did not support a diagnosis of pedophilic disorder or a conclusion that he suffers from a mental abnormality, the jury’s verdict is entitled to deference, and 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 Gierszewski, 81 AD3d 1473, 1474 [20…
discussed Cited as authority (rule) State v. Williams
N.Y. App. Div. · 2016 · confidence medium
Respondent failed to object to the majority of the alleged instances of misconduct, and thus failed to preserve for our review his contention with respect to those instances (see Matter of State of New York v Gierszewski, 81 AD3d 1473, 1474 [2011], lv denied 17 NY3d 702 [2011]).
discussed Cited as authority (rule) State v. Williams
N.Y. App. Div. · 2016 · confidence medium
Respondent failed to object to the majority of the alleged instances of misconduct, and thus failed to preserve for our review his contention with respect to those instances (see Matter of State of New York v Gierszewski, 81 AD3d 1473, 1474 [2011], lv denied 17 NY3d 702 [2011]).
discussed Cited as authority (rule) State v. Connor (2×)
N.Y. App. Div. · 2015 · confidence medium
Here, petitioner’s two expert psychologists testified that respondent suffered from a mental abnormality, and although respondent’s expert testified to the contrary, “ ‘[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 Gierszewski, 81 AD3d 1473, 1474 [2011], lv denied 17 NY3d 702 [2011]; see Matter of State of New York v Parrott, 125 AD3d 1438, 1439 [2015], lv denied 25 NY3d 911 [2015]).
discussed Cited as authority (rule) State v. Connor (2×)
N.Y. App. Div. · 2015 · confidence medium
Here, petitioner’s two expert psychologists testified that respondent suffered from a mental abnormality, and although respondent’s expert testified to the contrary, “ ‘[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 Gierszewski, 81 AD3d 1473, 1474 [2011], lv denied 17 NY3d 702 [2011]; see Matter of State of New York v Parrott, 125 AD3d 1438, 1439 [2015], lv denied 25 NY3d 911 [2015]).
discussed Cited as authority (rule) STATE OF NEW YORK v. CONNOR, FRANK
N.Y. App. Div. · 2015 · confidence medium
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” (Gierszewski, 81 AD3d at 1474 [internal quotation marks omitted]).
discussed Cited as authority (rule) Matter of State of New York v. Robert M.
N.Y. App. Div. · 2015 · confidence medium
Contrary to the appellant’s contention, the jury verdict was supported by legally sufficient evidence, since there was a valid line of reasoning by which the jury could conclude that the appellant suffered from a mental abnormality as defined in Mental Hygiene Law § 10.03 (i), and the verdict was not against the weight of the evidence, as it was supported by a fair interpretation of the evidence (see Matter of State of New York v Ian I., 127 AD3d 766, 767-768 [2015]; Matter of State of New York v David M., 120 AD3d 1423, 1424 [2014]; Matter of State of New York v Robert F., 101 AD3d 1133, 1…
discussed Cited as authority (rule) State v. Nervina
N.Y. App. Div. · 2014 · confidence medium
Although respondent’s expert witness testified that respondent did not suffer from a mental abnormality, the jury’s verdict is entitled to deference, and 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 Gierszewski, 81 AD3d 1473, 1474 [2011], lv denied 17 NY3d 702 [2011] [internal quotation marks omitted]).
discussed Cited as authority (rule) State v. Nervina
N.Y. App. Div. · 2014 · confidence medium
Although respondent’s expert witness testified that respondent did not suffer from a mental abnormality, the jury’s verdict is entitled to deference, and 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 Gierszewski, 81 AD3d 1473, 1474 [2011], lv denied 17 NY3d 702 [2011] [internal quotation marks omitted]).
discussed Cited as authority (rule) State v. Schraenkler
N.Y. App. Div. · 2013 · confidence medium
Contrary to respondent’s further contention, petitioner met its burden of proving by clear and convincing evidence that respondent is a detained sex offender who suffers from a mental abnormality involving such a strong predisposition to commit sex offenses, and such an inability to control his behavior, that confinement in a secure treatment facility is required (see Mental Hygiene Law § 10.07 [d]; Matter of State of New York v Gierszewski, 81 AD3d 1473, 1473-1474 [2011], lv denied 17 NY3d 702 [2011]), and there is no basis upon which to disturb the court’s determination in that regard (…
discussed Cited as authority (rule) State v. Schraenkler
N.Y. App. Div. · 2013 · confidence medium
Contrary to respondent’s further contention, petitioner met its burden of proving by clear and convincing evidence that respondent is a detained sex offender who suffers from a mental abnormality involving such a strong predisposition to commit sex offenses, and such an inability to control his behavior, that confinement in a secure treatment facility is required (see Mental Hygiene Law § 10.07 [d]; Matter of State of New York v Gierszewski, 81 AD3d 1473, 1473-1474 [2011], lv denied 17 NY3d 702 [2011]), and there is no basis upon which to disturb the court’s determination in that regard (…
discussed Cited as authority (rule) State v. Farnsworth
N.Y. App. Div. · 2013 · confidence medium
“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 [people] to the conclusion reached by the jury on the basis of the evidence presented at trial” (Matter of State of New York v Gierszewski, 81 AD3d 1473, 1473 [2011], lv denied 17 NY3d 702 [2011] [internal quotation marks omitted]).
discussed Cited as authority (rule) State v. Farnsworth
N.Y. App. Div. · 2013 · confidence medium
“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 [people] to the conclusion reached by the jury on the basis of the evidence presented at trial” (Matter of State of New York v Gierszewski, 81 AD3d 1473, 1473 [2011], lv denied 17 NY3d 702 [2011] [internal quotation marks omitted]).
cited Cited as authority (rule) State v. Trombley
N.Y. App. Div. · 2012 · confidence medium
We therefore conclude that the evidence is legally sufficient to support the jury verdict (see Matter of State of New York u Gierszewski, 81 AD3d 1473, 1473 [2011], lv denied 17 NY3d 702 [2011]).
cited Cited as authority (rule) State v. Trombley
N.Y. App. Div. · 2012 · confidence medium
We therefore conclude that the evidence is legally sufficient to support the jury verdict (see Matter of State of New York u Gierszewski, 81 AD3d 1473, 1473 [2011], lv denied 17 NY3d 702 [2011]).
discussed Cited "see" J., CHRISTOPHER v. STATE OF NEW YORK
N.Y. App. Div. · 2017 · signal: see · confidence high
Respondents thereby sustained their burden of establishing by clear and convincing evidence that petitioner suffers 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 Matter of State of New York v Gierszewski, 81 AD3d 1473, 1473 [2011], lv denied 17 NY3d 702 [2011]).
discussed Cited "see" State v. Bushey
N.Y. App. Div. · 2016 · signal: see · confidence high
We therefore conclude that petitioner met its burden of establishing by clear and convincing evidence that respondent has “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” (Mental Hygiene Law § 10.03 [i]; see Matter of State of New York v Gierszewski, 81 AD3d 1473, 1473 [2011], lv denied 17 NY3d 702 [2011]; see generally Dennis K., 27 NY3d at…
discussed Cited "see" State v. Bushey
N.Y. App. Div. · 2016 · signal: see · confidence high
We therefore conclude that petitioner met its burden of establishing by clear and convincing evidence that respondent has “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” (Mental Hygiene Law § 10.03 [i]; see Matter of State of New York v Gierszewski, 81 AD3d 1473, 1473 [2011], lv denied 17 NY3d 702 [2011]; see generally Dennis K., 27 NY3d at…
discussed Cited "see" STATE OF NEW YORK v. BUSHEY, CHRISTOPHER
N.Y. App. Div. · 2016 · signal: see · confidence high
We therefore conclude that petitioner met its burden -2- 785 CA 15-00410 of establishing by clear and convincing evidence that respondent has “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 Matter of State of New York v Gierszewski, 81 AD3d 1473, 1473 , lv denied 17 NY3d 702 ; see generally Dennis K., 27 NY3d at 734-735 …
discussed Cited "see" State v. Stein
N.Y. App. Div. · 2011 · signal: see · confidence high
Petitioner thus established by clear and convincing evidence that respondent suffers 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 [respondent] having serious difficulty in controlling such conduct” (Mental Hygiene Law § 10.03 [i]; see Gierszewski, 81 AD3d at 1473 ).
discussed Cited "see" STATE OF NEW YORK v. STEIN, SHANNON
N.Y. App. Div. · 2011 · signal: see · confidence high
Petitioner thus established by clear and convincing evidence that -2- 814 CA 10-01352 respondent suffers 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 [respondent] having serious difficulty in controlling such conduct” (§ 10.03 [i]; see Gierszewski, 81 AD3d at 1473 ).
discussed Cited "see" State v. Andre L.
N.Y. App. Div. · 2011 · signal: see · confidence high
The appellant contends that the jury’s findings that the designated felony was sexually motivated and that he suffers from a mental abnormality were contrary to the weight of the evidence. “[A] jury verdict may be set aside as against the weight of the evidence only when the evidence preponderates so greatly in the movant’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 [2009] [internal quotation marks omitted]; see Matter of State of New York v Gierszewski, 81 AD3d 1473 [20…
Retrieving the full opinion text from the archive…
In the Matter of State of New York
v.
Daniel Gierszewski, a Patient in the Custody of the Office of Mental Health
Appellate Division of the Supreme Court of the State of New York.
Feb 18, 2011.
81 A.D.3d 1473
Cited by 40 opinions  |  Published

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 [2009]).

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 “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” (Mental Hygiene Law § 10.03 [i]; see generally Matter of State of New York v Farnsworth, 75 AD3d 14, 29 [2010], appeal dismissed 15 NY3d 848 [2010]).

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[*1474] 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, 1058 [2010]; see also Matter of State of New York v Donald N., 63 AD3d 1391, 1394 [2009]). 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 [2009], lv denied 14 NY3d 702 [2010]; 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. Present—Centra, J.P., Fahey, Lindley, Green and Martoche, JJ.