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Section 10.06(h) ….cont

According to the State, this provision “underscores that the Legislature contemplated an offender’s release prior to the filing of the petition”; and “[t]hus, it is unmistakably permissible to file a petition against a convicted sex offender who is at liberty.”

The State’s interpretation of section 10.06(h) assumes, however, that “at liberty” means free from both State custody and State supervision. The statuses to which a respondent may be “return[ed]” from “liberty” under this provision are, however, all custodial in nature and typically followed by a period of State supervision. This suggests that section 10.06(h) is meant to deal with the circumstance where a petition is filed against someone “at liberty” because not confined, but who is still subject to State supervision; 10 not a situation—such as we have here—where State supervision ended before the petition was filed. Section 10.06(h) is not rendered “superfluous,” as the dissent contends, just because it does not cover every conceivable “release” subsequent to section 10.05(b) notice.

Section 10.06(f) authorizes the Attorney General to file a “securing petition” to protect the public safety at any time after receipt of section 10.05(b) notice in order to prevent a respondent’s release “if it appears that the respondent may be released prior to the time the case review team makes a determination.” If a securing petition is filed, “there shall be no probable cause hearing until such time as the case review team may find that the respondent is a sex offender requiring civil management”; and “[i]f the case review team determines that the respondent is not a sex offender requiring civil management, the attorney general shall so advise the court and the securing petition shall be dismissed.”

The State points out that a securing petition is discretionary; that “[t]he statute does not say that the failure to file a securing petition will terminate the article 10 process”; and that an individual held on a securing petition does not fall within the definition of a “detained sex offender” under Mental Hygiene Law § 10.03(g). Again, the State simply assumes that this provision is directed at an individual whose parole has expired. The Legislature was far more likely to have been worried about someone scheduled to be released from State custody into the community who might threaten the public safety notwithstanding being subject to State supervision. And although there is nothing in the plain language of this provision to prevent the Attorney General from filing a securing petition to stop an individual’s release from parole supervision, it does not follow that the Attorney General may subsequently file a sex offender civil management petition against an individual subject to a securing petition once that individual’s parole expires.

In sum, the Court read article 10 to require 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. Neither arson or assault were involved.

Accordingly, the order of the Appellate Division was affirmed by the Court, without costs.

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