Seltzer v. Jose P.

—In a proceeding for an order authorizing continued involuntary retention of the respondent pursuant to Mental Hygiene Law § 9.33, the appeal is from an order of the Supreme Court, Queens County (Golar, J.), dated December 20, 1994, which, after a hearing, denied the application, and directed that the respondent be released. Ordered that the order is affirmed, without costs or disbursements. For the State to retain a person for involuntary care and treatment, the law requires more than a mere showing of mental illness. Rather, the State must prove, by clear and convincing evidence, not only that the person is mentally ill but also that he poses a substantial threat of physical harm to himself or others (see, Addington v Texas, 441 US 418, 425; Matter of Jeannette S., 157 AD2d 783; Matter of Edward L., 720 137 AD2d 818; Matter of Carl C., 126 AD2d 640; Matter of Harry M., 96 AD2d 201). On this record, a showing that the respondent poses a substantial threat of physical injury to himself or others has not been made by clear and convincing evidence. There was no factual basis to controvert the testimony of the respondent and the court-appointed psychiatrist that the respondent did not pose a substantial threat of physical harm to himself or others. Sullivan, J. P., Lawrence, Copertino and Joy, JJ., concur.