In July 2010, the Attorney General, filed a petition contending that Respondent is a detained sex offender who has a mental abnormality, as that term is defined in Article 10 of the New York State Mental Hygiene Law (“MHL” or “Article 10”), § 10.03, such that Respondent should be confined or supervised by the Office of Mental Health once his prison sentence is completed.
A Bronx County Criminal attorney said that, in July 1995, Respondent pled guilty to two counts of Robbery in the First Degree, PL 160.15(3), one count of Attempted Robbery in the First Degree, and one count of Escape in the First Degree, each charged out of four separate dockets. Thereafter, Respondent was sentenced on those separate dockets to three indeterminate terms of incarceration in a New York State Correctional Facility from 8 to 16 years, and one indeterminate term of incarceration of 2 to 4 years, with all sentences to run concurrently.
Respondent, who was incarcerated had served almost 15 years of his concurrent sentences and was nearing the end of his term of imprisonment when the Attorney General filed the petition at issue in July 2010.
The petition alleges that the attempted robbery and one of the first degree robbery crimes for which Defendant was convicted were sexually motivated and therefore Respondent is subject to the provisions of Article 10 of the Mental Hygiene Law. The Attorney General filed a petition seeking a determination that Respondent is a detained sex offender who has a mental abnormality such that he should be subject to Article 10 civil management.
Respondent filed a motion to dismiss the petition contending that he was not convicted of any sex crime and a provision that would allow a jury to determine whether Respondent’s robbery and attempted robbery convictions were “sexually motivated” is unconstitutional in that it violates the Ex Post Facto Clause of the United States Constitution. Respondent asserts that Section 10.07(c), the relevant provision of the statute, and its concomitant definitional paragraphs 1 serve to “retroactively transform” a non-sex crimes into a new “sexually motivated felony” and that it increases the punishment for the prior crime.
As set forth further below, the Court is constrained to follow the precedent established by the Supreme Court.
The United States Supreme Court and the New York Court of Appeals have decided several cases that are relevant to the issues presented by Respondent in challenging the constitutionality of Section 10.07(c). In addition, Section 10.07(c), which applies to persons who committed certain crimes prior to the enactment of SOMTA, already has been the subject of constitutional analysis by both state and federal courts in New York.
To Be Cont…..
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