        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

929.1
CA 14-00646
PRESENT: CENTRA, J.P., CARNI, VALENTINO, AND WHALEN, JJ.


IN THE MATTER OF THE APPLICATION FOR DISCHARGE
OF KENNETH GROVES, CONSECUTIVE NO. 166237, FROM
CENTRAL NEW YORK PSYCHIATRIC CENTER PURSUANT TO
MENTAL HYGIENE LAW § 10.09, PETITIONER-RESPONDENT,

                    V                                MEMORANDUM AND ORDER

STATE OF NEW YORK, NEW YORK STATE OFFICE OF
MENTAL HEALTH AND NEW YORK STATE DEPARTMENT OF
CORRECTIONS AND COMMUNITY SUPERVISION,
RESPONDENTS-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 sex offender requiring civil
management pursuant to Mental Hygiene Law article 10 and directed 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 without costs.

     Memorandum: Respondents appeal from an order, entered after an
annual review hearing pursuant to Mental Hygiene Law § 10.09 (d), that
determined that petitioner does not currently suffer from a mental
abnormality under Mental Hygiene Law § 10.03 (i) and directed his
unconditional discharge from the custody of the Office of Mental
Health (see § 10.09 [h]). We affirm.

     We agree with petitioner that on this record Supreme Court
properly determined that respondents failed to establish by clear and
convincing evidence that petitioner currently suffers from a “mental
abnormality” (see Mental Hygiene Law § 10.09 [h]). Moreover, although
both experts diagnosed petitioner with antisocial personality
disorder, that diagnosis is insufficient, as a matter of law, to
support a “mental abnormality” finding (see Matter of State of New
York v Donald DD., 24 NY3d 174, 190). We reject respondents’
contention that the jury determination that petitioner suffered from a
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                                                         CA 14-00646

“mental abnormality” in 2008 precludes any subsequent review of that
issue (see § 10.07 [d]; see generally People ex rel. Leonard HH. v
Nixon, 148 AD2d 75, 79). The annual review proceeding conducted here
specifically requires that every person civilly committed under Mental
Hygiene Law article 10 “shall have an examination for evaluation of
his or her mental condition made at least once every year” (§ 10.09
[b]). Indeed, as part of each annual review, a psychiatric examiner
is required to report to the Commissioner of Mental Health whether
such person “is currently a dangerous sex offender requiring
confinement” (id. [emphasis added]).




Entered:   January 2, 2015                      Frances E. Cafarell
                                                Clerk of the Court
