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Office of Mental Health (OMH)

In 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. This 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.

A New York Criminal attorney said that Respondent was released to parole supervision in July 1999, after serving 11 years and eight months of his sentence. But in May 2000, he was arrested and indicted separately for three robberies. Thereafter, 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 Rashid in 1992. He was subsequently released to parole supervision thereafter.

Respondent was returned to prison for violating the conditions of his parole in July 2006. He was released to parole supervision again in April 2007, but went back to prison after violating the conditions of his parole in August of that year. He was next released to parole supervision in early 2008. He was arrested for the misdemeanor crimes of petit larceny and criminal possession of stolen property in the fifth degree. Upon pleading guilty to petit larceny,

Respondent received a definite sentence, which he served at a local correctional facility. He remained subject to the supervision of the State Division of Parole throughout his time at the correctional facility, but his parole was not revoked, apparently because his jail sentence ended days before his parole expiration date: He was freed, and his parole supervision ended in November 2008, when he reached the maximum term of his consecutive indeterminate sentences.

In 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. SOMTA and article 10 are designed to reduce the risks posed by and to address the treatment needs of those sex offenders who suffer from mental abnormalities that predispose them to commit repeated sex crimes. To these ends, whenever an individual “who may be a detained sex offender” is “nearing an anticipated release” 1 into the community, an “agency with jurisdiction” other than the Division must notify the Attorney General and the Commissioner of Mental Health, while the Division may elect to do so. As relevant to this appeal, a “detained sex offender” is “a person who is in the care, custody, control, or supervision of an agency with jurisdiction.

Again as relevant to this appeal, a “sex offense” includes felonies defined in article 130 of the Penal Law and any felony attempt or conspiracy to commit those crimes, as well as “a designated felony … if sexually motivated and committed prior to” article 10’s effective date. The list of “designated felonies” encompasses a broad range of felony crimes, including assault, gang assault, stalking, manslaughter, murder, kidnapping, burglary, arson, robbery various prostitution and obscenity offenses, crimes involving sexual performance by a child, and any felony attempt or conspiracy to commit the enumerated crimes. “Related offenses” include “any offenses that are prosecuted as part of the same criminal action or proceeding, or which are part of the same criminal transaction, or 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”.

Upon receipt of section 10.05(b) notice, the Commissioner is authorized to “designate multidisciplinary staff” at the Office of Mental Health (OMH) to conduct “a preliminary review” of the need for “the person who is the subject of the notice” to be evaluated by a three-member “case review team,” at least two of whose members must be “professionals in the field of mental health or the field of developmental disabilities, as appropriate, with experience in the treatment, diagnosis, risk assessment or management of sex offenders”. If the staff decides after preliminary review to make a referral to a case review team, notice must be given to the individual whose case is to be referred.

The case review team considers a variety of records, may arrange for a psychiatric examination, and ultimately determines whether the respondent is a “sex offender requiring civil management”. If the case review team determines that the respondent is not a sex offender requiring civil management, it notifies the respondent and the Attorney General, who then “shall not file a sex offender civil management petition”. If, however, the case review team reaches the contrary conclusion, written notice is given to the respondent and the Attorney General, “accompanied by a written report from a psychiatric examiner that includes a finding as to whether the respondent has a mental abnormality”.

After receipt of section 10.05(g) notice, the Attorney General may elect to file an article 10 petition against the respondent in the Supreme Court or County Court of the county where the respondent is located. Within 30 days after a petition is filed, Supreme Court or County Court must “conduct a hearing without a jury to determine whether there is probable cause to believe that the respondent is a sex offender requiring civil management”. If probable cause is established, the respondent may be confined, pending completion of a jury trial to be conducted within 60 days thereafter. The jury must then determine “by clear and convincing evidence whether the respondent is a detained sex offender who suffers from a mental abnormality”. The Attorney General bears the burden of proof, and any jury determination must be by unanimous verdict.

If the jury concludes that the respondent is a “detained sex offender who suffers from a mental abnormality,” then the court must “consider whether the respondent is a dangerous sex offender requiring confinement or a sex offender requiring strict and intensive supervision”. If the court “finds by clear and convincing evidence” that the respondent is afflicted with “a mental abnormality involving such a strong predisposition to commit sex offenses, and such an inability to control behavior, that [he] is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility, then the court shall find the respondent to be a dangerous sex offender requiring confinement,” who “shall be committed to a secure treatment facility for care, treatment, and control until such time as he or she no longer requires confinement”.

Here, the Division sent section 10.05(b) notice to the Commissioner and the Attorney General on September 29, 2008, stating that Rashid had been “identified … as a person who is a detained sex offender warranting notice to OMH of impending release”; and that he was under the Division’s supervision until his sentence expired in November 2008. On the attached case review worksheet, the Division specified that first-degree sodomy was the “qualifying sex offense or sexually motivated designated felony offense,” and that respondent exhibited a “pattern of sex offense.”

Accordingly, the court determined that there was probable cause to believe that Respondent was a sex offender requiring civil management. Because of his “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 judge ordered Respondent to be committed to a secure treatment facility pending completion of trial, which he scheduled. The case was then adjourned to another judge to handle further proceedings.

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.

Criminal cases, for being crucial in nature should be referred to conscientious lawyers like our lawyers here in Stephen Bikis. Our New York Criminal lawyers diligently handle your cases and make it a point that they explain to you every move they make. We also have other lawyers for criminal cases, particularly, our New York Sex crimes who will handle your delicate cases and sees to it that in every move, the rights of our client are protected.

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