| Matter of Groves v State of New York |
| 2015 NY Slip Op 00005 [124 AD3d 1213] |
| January 2, 2015 |
| Appellate Division, Fourth Department |
[*1]
| In the Matter of Kenneth Groves, Consecutive No.166237, for Discharge from Central New York Psychiatric Center Pursuant to MentalHygiene Law § 10.09, Respondent, v State of New York et al.,Appellants. |
Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Treasure of counsel),for respondents-appellants.
Emmett J. Creahan, Director, Mental Hygiene Legal Service, Utica (Michael H.McCormick of counsel), for petitioner-respondent.
Appeal from an order of the Supreme Court, Oneida County (Louis P. Gigliotti,A.J.), entered March 28, 2014. The order determined that petitioner is currently not a sexoffender requiring civil management pursuant to Mental Hygiene Law article 10 anddirected the discharge of petitioner from the custody of the Office of Mental Health.
It is hereby ordered that the order so appealed from is unanimously affirmed withoutcosts.
Memorandum: Respondents appeal from an order, entered after an annual reviewhearing pursuant to Mental Hygiene Law § 10.09 (d), that determined thatpetitioner does not currently suffer from a mental abnormality under Mental HygieneLaw § 10.03 (i) and directed his unconditional discharge from the custodyof the Office of Mental Health (see § 10.09 [h]). We affirm.
We agree with petitioner that on this record Supreme Court properly determined thatrespondents failed to establish by clear and convincing evidence that petitioner currentlysuffers from a "mental abnormality" (see Mental Hygiene Law§ 10.09 [h]). Moreover, although both experts diagnosed petitioner withantisocial personality disorder, that diagnosis is insufficient, as a matter of law, tosupport a "mental abnormality" finding (see Matter of State of New York v Donald DD., 24 NY3d174, 190 [2014]). We reject respondents' contention that the jury determination thatpetitioner suffered from a "mental abnormality" in 2008 precludes any subsequent reviewof that issue (see § 10.07 [d]; see generally People ex rel.Leonard HH. v Nixon, 148 AD2d 75, 79 [1989]). The annual review proceedingconducted here specifically requires that every person civilly committed under MentalHygiene Law article 10 "shall have an examination for evaluation of his or her mentalcondition made at least once every year" (§ 10.09 [b]). Indeed, as part ofeach annual review, a psychiatric examiner is required to report to the Commissioner ofMental Health whether such person "is currently a dangerous sex offenderrequiring confinement" (id. [emphasis added]). Present—Centra, J.P.,Carni, Valentino and Whalen, JJ.