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Court Discusses Mental Hygiene Law

On 6 January 1992, respondent pleaded guilty to two counts of first-degree robbery and single counts of first-degree burglary, first-degree rape, and first-degree sodomy. The plea satisfied charges arising from two separate criminal incidents, the robbery of a gas station attendant and a home invasion, for which respondent was arrested and indicted separately in 1988. He was sentenced to an indeterminate term of imprisonment of 8 to 16 years, running from his arrest. In July 1999, respondent was released to parole supervision after serving 11 years and eight months of his sentence.

A New York Criminal Lawyer said that on 19 May 2000, he was again arrested and indicted separately for three robberies. On 12 December 2001, he pleaded guilty to two counts of third-degree robbery, for each of which he was sentenced to an indeterminate term of 2 to 4 years, and one count of criminal possession of a weapon in the fourth degree, for which he was sentenced to prison for one year. The indictment satisfied by respondent’s plea to the weapon-possession count also accused him of sexual abuse. These sentences ran concurrently to each other but consecutively to the undischarged portion of the indeterminate sentence imposed on respondent in 1992. On 6 January 2006, he was released to parole supervision.

In July 2006, respondent was returned to prison for violating the conditions of his parole. In April 2007, he was again released to parole supervision but went back to prison after violating the conditions of his parole in August of that year.

In early 2008, respondent was again released to parole supervision. He was arrested for the misdemeanor crimes of petit larceny and criminal possession of stolen property in the fifth degree on 6 May 2008. Upon pleading guilty to petit larceny, respondent received a definite sentence, which he served at Rikers Island, a local correctional facility. A Long Island Criminal Lawyer said the respondent remained subject to the supervision of the State Division of Parole (the Division) throughout his time at Rikers Island, but his parole was not revoked, apparently because his jail sentence ended days before his parole expiration date: respondent was freed from Rikers Island on 31 October 2008, and his parole supervision ended on 4 November 2008, when he reached the maximum term (20 years) of his consecutive indeterminate sentences.

On 5 November 2008, the Attorney General filed a petition in Supreme Court seeking sex offender civil management of respondent pursuant to article 10 of the Mental Hygiene Law. The Supreme Court directed that respondent be confined pending the probable-cause hearing. Upon respondent’s motion, the court dismissed the petition for improper service, but denied respondent’s application for immediate release from custody in light of the Attorney General’s representation that a second petition would be filed the same day.

Thereafter, a New York Sex Crimes Lawyer said the court found that respondent was a detained sex offender. The court relied on Article 70.00 of the Penal Law, which relates to consecutive sentences; that under Article 70.00 (the 1992 and 2001) sentences combined so that the minimum and maximum instead of being 8 to 16 is 10 to 20; and that if the proceeding was commenced prior to the expiration of the 20 years during which time respondent was still incarcerated, accordingly under the definition of a detained sex offender, he is a detained sex offender. The court also found that respondent suffered from a mental abnormality, relying on the testimony of the State’s expert, a licensed psychologist and psychiatric examiner for Office of Mental Health (OMH). Accordingly, the court determined that there was probable cause to believe that respondent was a sex offender requiring civil management. Because of respondent’s long history of criminality going back to his youth, the court further determined that there was probable cause to believe that respondent was dangerous enough to require confinement pending trial, and that lesser conditions of confinement were insufficient to protect the public since his behavior while incarcerated was exemplary, but once released he reverted to substance abuse and violent crime. The court then ordered respondent to be committed to a secure treatment facility pending completion of trial.

Thereafter, respondent moved to dismiss the petition on several grounds, including that his conviction for a weapon-possession misdemeanor was not a sexually-motivated designated felony. On 5 June 2009, the court granted respondent’s motion because respondent’s conviction for criminal possession of a weapon in the fourth degree (a class A misdemeanor) does not qualify as a designated felony under the statute; and the only allegations in the second petition which asserted that respondent was a detained sex offender arose from this misdemeanor conviction. However, the court granted the State leave to replead and file another petition.

On 10 June 2009, the Attorney General then filed a third petition, the subject of the herein case. Subsequently, respondent moved to dismiss the petition. Accordingly, Supreme Court granted respondent’s motion and dismissed the petition, declaring that respondent was not a detained sex offender at the time of either the interagency notice or the case review notice.

The Appellate Division affirmed. A New York City Criminal Lawyer said the court concluded that the different consequences of SORA registration and article 10 involuntary civil commitment, as well as the definition in article 10 of the related offenses to be considered in determining eligibility for civil commitment, rendered Penal Law § 70.30 inapplicable for the purpose of merging the sentence for rape into respondent’s subsequent sentence for the nonsexual offense.

The Issue:

The court is called upon to resolve issues of interpretation of article 10 of the Mental Hygiene Law, the key component of the Sex Offender Management and Treatment Act (SOMTA).

The Ruling:

It must be noted that under the subject law, a petition must allege that the respondent is a sex offender requiring civil management which is defined as a detained sex offender who suffers from a mental abnormality. Moreover, a detained sex offender must be in the care, custody, control, or supervision of an agency with jurisdiction and, when on parole, currently subject to the Division’s supervision for a sex offense or for a related offense.

In sum, Article 10 requires the Attorney General to file a sex offender civil management petition while a respondent is in State custody or, if the respondent is not confined, still subject to State supervision. This interpretation is in keeping with the Legislature’s intent to create a special set of procedures in article 10 to deal with the civil management of mentally ill sex offenders who are completing their prison terms. Article 10 was not designed to cover such individuals once they pass beyond the purview of the criminal justice system. At that point, the involuntary commitment provisions in article 9 of the Mental Hygiene Law might come into play in an appropriate case.

Here, respondent was not subject to State custody or supervision at the time the Attorney General filed any of the three petitions.

On another note, related offenses include offenses prosecuted as part of the same criminal action or proceeding as a sex offense as defined in article 10; offenses which are part of the same criminal transaction as a sex offense as defined in article 10; and offenses which are the bases of the orders of commitment received by the department of correctional services in connection with an inmate’s current term of incarceration (Mental Hygiene Law). Individuals subject to State custody or supervision on account of an offense within the first two categories of related offenses are eligible for civil management under article 10; the third category covers inmates serving their current terms of incarceration in DOCS’s (Department of Correctional Services) custody. The Legislature enacted in article 10 a comprehensive and complex scheme that defines which offenses count for purposes of eligibility for civil management: sex offenses, sexually-motivated designated felonies committed prior to article 10’s effective date, and those non-sex crimes that are related offenses. Superimposing Penal Law § 70.30 on article 10 for purposes of making eligibility determinations would distort this statutory scheme.

In the instant case, respondent was on parole and/or incarcerated at Rikers Island when the article 10 process was kicked off in the fall of 2008; the third prong of the definition of related offenses covers DOCS inmates, not a parolee or someone incarcerated for a misdemeanor in a local jail.

In sum, when the Division notified the Commissioner and the Attorney General on 29 September 2008 that respondent was an individual who might be a detained sex offender, he was not under the Division’s supervision on account of conviction for a sex offense (his 2001 felony convictions were for robbery); or a sexually-motivated designated felony committed prior to article 10’s effective date (the weapon-possession conviction was for a misdemeanor); or offenses which were prosecuted along with a sex offense or were part of the same criminal transaction as a sex offense; he was not an inmate serving his current term of incarceration for robbery in DOCS’s custody because his parole was not revoked. Hence, respondent did not stand convicted of a SOMTA-qualifying offense, and so was not a detained sex offender.

Hence, the order of the Appellate Division is affirmed.

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