SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

966 

CA 15-00867 

PRESENT: SMITH, J.P., CARNI, LINDLEY, DEJOSEPH, AND SCUDDER, JJ. 

 

IN THE MATTER OF THE APPLICATION FOR DISCHARGE 

OF DEREK GOODING, CONSECUTIVE NO. 195871, FROM 

CENTRAL NEW YORK PSYCHIATRIC CENTER PURSUANT TO 

MENTAL HYGIENE LAW SECTION 10.09, 

PETITIONER-APPELLANT, 

 

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-RESPONDENTS. 

 

EMMETT J. CREAHAN, DIRECTOR, MENTAL HYGIENE LEGAL SERVICE, UTICA

(PATRICK T. CHAMBERLAIN OF COUNSEL), FOR PETITIONER-APPELLANT. 

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (ALLYSON B. LEVINE OF

COUNSEL), FOR RESPONDENTS-RESPONDENTS. 

 

Appeal from an order of the Supreme Court, Oneida County (Joseph

E. Fahey, A.J.), entered April 29, 2015 in a proceeding pursuant to

Mental Hygiene Law article 10. The order denied the motion of

petitioner to vacate an order for continued confinement. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: Petitioner appeals from an order denying his motion

pursuant to CPLR 5015 (a) seeking to vacate an order entered pursuant

to Mental Hygiene Law § 10.09 (d), which sets forth that petitioner

currently suffers from a mental abnormality as defined by section

10.03 (i) and directs that petitioner continue to be confined to a

secure treatment facility (see § 10.09 [h]). 

We reject petitioner’s contention that Supreme Court erred in

denying the motion. Petitioner sought vacatur of the order on the

ground that the evidence is not legally sufficient to show “a

congenital or acquired condition, disease or disorder that affects the

emotional, cognitive, or volitional capacity of a person in a manner

that predisposes him or her to the commission of conduct constituting

a sex offense” (Mental Hygiene Law § 10.03 [i]). Although it is well

established that a diagnosis of antisocial personality disorder (ASPD)

is, by itself, “insufficient, as a matter of law, to support a ‘mental

abnormality’ finding” (Matter of Groves v State of New York, 124 AD3d
-2- 966 

CA 15-00867 

1213, 1214), here, the court’s determination that petitioner suffered

from a mental abnormality was not based solely on a diagnosis of ASPD. 

Contrary to petitioner’s contention, the court based its determination

upon the opinion of respondents’ expert that petitioner had diagnoses

of personality disorder, not otherwise specified (NOS), with

antisocial traits, alcohol and cocaine dependency, and a history of

sexual preoccupation. Moreover, respondents’ expert indicated that

petitioner exhibited two “behavioral indicators” of sexual sadism. 

Considering the evidence in the light most favorable to respondents

(see Matter of State of New York v John S., 23 NY3d 326, 348, rearg

denied 24 NY3d 933), we conclude that there is sufficient evidence of

petitioner’s diagnosis of personality disorder NOS with antisocial

traits, along with sufficient evidence of other diagnoses and/or

conditions, to sustain a finding of mental abnormality (see § 10.03

[i]; Matter of Vega v State of New York, 140 AD3d 1608, 1608-1609;

Matter of State of New York v Williams, 139 AD3d 1375, 1377-1378). 

Entered: November 18, 2016 Frances E. Cafarell

Clerk of the Court