                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: February 23, 2017                   523490
________________________________

In the Matter of HOWARD U.

WILLIAM DICKSON, as Director
   of the Capital District
   Psychiatric Center,                      MEMORANDUM AND ORDER
                    Respondent;

HOWARD U.,
                    Appellant.
________________________________


Calendar Date:   February 14, 2017

Before:   Garry, J.P., Egan Jr., Rose, Devine and Aarons, JJ.

                             __________


      Sheila E. Shea, Mental Hygiene Legal Service, Albany (Brent
Stack of counsel), for appellant.

      Eric T. Schneiderman, Attorney General, Albany (Joseph M.
Spadola of counsel), for respondent.

                             __________


Devine, J.

      Appeal from an order of the Supreme Court (Weinstein, J.),
entered September 23, 2015 in Albany County, which granted
petitioner's application, in a proceeding pursuant to Mental
Hygiene Law article 9, for the involuntary retention of
respondent.

      Respondent was admitted to a psychiatric facility in the
wake of a suicide attempt while imprisoned in 1997. He
eventually found himself at the Capital District Psychiatric
Center (hereinafter CDPC) and, since 1998, has received
"involuntary care and treatment" there (Mental Hygiene Law § 9.27
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[a]). The term of respondent's involuntary treatment has been
periodically extended by court order (see Mental Hygiene Law
§ 9.33; People ex rel. DeLia v Munsey, 26 NY3d 124, 127 [2015])
and, in September 2015, petitioner filed this application to
involuntarily retain respondent for an additional 18 months.
Respondent demanded a hearing on the application pursuant to
Mental Hygiene Law § 9.33. Following that hearing, at which
respondent's clinical record was stipulated into evidence,
Supreme Court granted petitioner's application and authorized the
continued retention of respondent "for a period not to exceed
[18] months from September 1, 2015." Respondent now appeals.

      We affirm. "For a hospital to retain a patient for
involuntary psychiatric care, it must establish, by clear and
convincing evidence, that the patient is mentally ill and in need
of continued care and treatment, and that the patient poses a
substantial threat of physical harm to himself or herself or to
others" (Matter of Francine T., 302 AD2d 533, 533 [2003]
[citations omitted]; see Matter of Tarrence A. [Mid-Hudson
Forensic Psychiatric Ctr.], 132 AD3d 985, 985 [2015], lv
dismissed 26 NY3d 1120 [2016]). There is little debate that
respondent, who has been diagnosed with pedophilia and antisocial
personality disorder, is mentally ill and requires psychiatric
treatment. The question before us, rather, is whether petitioner
established that respondent poses a substantial threat of harm to
himself or others so as to require inpatient psychiatric care.

      Petitioner presented psychiatrist Gregory Stepanets as its
sole witness at the retention hearing and buttressed that
testimony with respondent's medical records. Stepanets was not
the regular attending psychiatrist on respondent's unit, but was
familiar with respondent's case through review of his clinical
record and discussions with individuals involved in his treatment
as well as respondent himself. Stepanets noted respondent's
history of inappropriate sexual interest in young males and
instances where, despite his age and medical limitations,
respondent had recently acted upon that interest. The instances
cited included one in which a patient had obtained an order of
protection against respondent after respondent subjected him to
unwanted physical contact and harassed him, as well as occasions
where respondent had tried to evade staff supervision and engage
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in "grooming-like behavior" with patients whom he found
attractive. Stepanets accordingly opined that respondent still
posed a substantial risk of harm to individuals in the community,
"especially to the most vulnerable people, to . . . young
children" (see e.g. Matter of Robert OO., 57 AD3d 1304, 1305-1306
[2008]).

      It is true that respondent has engaged in therapy and taken
medication to address his problematic behavior, the aim of which
was his eventual reentry into the community. Stepanets testified
that respondent's "enrollment in his treatment [was] extremely
superficial," however, with respondent refusing to attend
individual or group therapy sessions unless he "get[s] something
in return" and attempting to avoid taking his prescribed
medication so that he could give it to another patient whom he
was grooming. Respondent has further refused to discuss these
issues with staff members, "continues to struggle with anger,
agitation and aggression," and has been unable to move up to
"higher level" programs that he needs. Stepanets made clear, in
other words, that respondent is not now and has never been
"involved in his treatment" to any significant degree.
Accordingly, regardless of the effectiveness of the treatment at
CDPC, there is no reason to expect that respondent would do any
better were he released from CDPC into a less restrictive milieu
(see Matter of Mental Hygiene Legal Servs. v Wack, 75 NY2d 751,
753 [1989]; Matter of Mental Hygiene Legal Servs. ex rel. James
U. v Rhodes, 195 AD2d 160, 162 [1994]). Stepanets opined, in
fact, that the only treatment option available that could serve
the interests of respondent and the community was retention for
involuntary treatment. In light of the foregoing, we agree with
Supreme Court that petitioner provided clear and convincing
evidence to justify respondent's continued involuntary retention
at CDPC (see e.g. Matter of Robert OO., 57 AD3d at 1305-
1306; Matter of Daniel XX., 53 AD3d 819, 821-822 [2008]).

     Garry, J.P., Egan Jr., Rose and Aarons, JJ., concur.
                        -4-                  523490

ORDERED that the order is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
