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Ex Post Facto Clause of the United States Constitution

This is a proceeding wherein the Attorney General of the State of New York filed a petition on 19 July 2010 contending that Criminal Respondent RV 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, § 10.03, such that Respondent should be confined or supervised by the Office of Mental Health once his prison sentence is completed.

On 7 February 2011, Respondent filed a motion to dismiss the petition contending that he was not convicted of any sex crime and that the provision in Article 10, Section 10.07(c) 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 criminal statute and its concomitant definitional paragraphs serve to retroactively transform a non- sex crime into a new “sexually motivated felony” and that it increases the punishment for the prior crime.

The court denies respondent’s motion to dismiss.

On 27 July 1995, RV pled guilty to two counts of Robbery in the First Degree, PL 160.15(3), one count of Attempted Robbery in the First Degree, PL 110/160.15(3), and one count of Escape in the First Degree, PL 205.15, each charged out of four separate dockets. On 15 September 1995, RV 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.

In July 2010, RV was incarcerated at Shawagunk Correctional Facility in Ulster County. He 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 on 19 July 2010.

In the petition, it is alleged that the attempted robbery and one of the first degree robbery crimes for which RV was convicted were sexually motivated and therefore RV 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.

A probable cause hearing was scheduled to be held on 26 July 2010. However, prior to the hearing, the court granted RV’s motion to change venue from Ulster County to Bronx County.

On 15 October 2010, a probable cause hearing was held and the court found that there was probable cause to believe that RV is a detained sex offender requiring civil management pursuant to Mental Hygiene Law § 10.06(k).

It is RV’s contention that the petition should be dismissed. He alleges that the provisions of Article 10 that allow a jury to determine if his non- sex crimes were “sexually motivated” violates the Ex Post Facto Clause of the United States Constitution.

In 2007, the Legislature, determining that some sex offenders have mental abnormalities that predispose them to engage in repeated sex offenses enacted The Sex Offender Management and Treatment Act. It provides that a person who is determined to be a detained sex offender with a mental abnormality would be subject to civil management after that person had served his or her criminal sentence. Civil management may take the form of either civil confinement in a secure treatment facility or strict and intensive supervision in accordance with MHL §§ 10.01 (b),(c),(d) and 10.07(f).

SOMTA provides that, within a specified time frame, either a Supreme or County Court judge shall hold a probable cause hearing to determine whether there is probable cause to believe that the criminal respondent is a detained sex offender requiring civil management.

If the criminal court determines that such probable cause exists, that matter is held over for trial before a twelve person jury, or a judge if the respondent in that case waives a trial by jury. The petitioner carries the burden of proving that the respondent in the matter is a detained sex offender who has a mental abnormality by clear and convincing evidence.

Pursuant to SOMTA, in order to be subject to civil management as set forth in MHL § 10.01, et seq., the person must have been convicted of a sex offense, as defined in Article 10, which includes, among others, a “sexually motivated felony. SOMTA also provides that certain persons who committed crimes before the enactment of SOMTA still may be subject to the civil management provisions of the statute.

New York is one of 18 other states and the District of Columbia and the federal government to have enacted civil confinement statutes such as SOMTA with the intent of addressing “a compelling need to protect residents of this state from sex criminals whose recidivism is predictable and uncontrollable.” See, e.g., MHL § 10.01 (a), (b), (c), (e) and (f); see also, Governor’s Program Bill 2007 Memorandum, Bill Jacket, L. 2007, ch. 7, at 10.

In enacting SOMTA, the Legislature noted that SOMTA establishes comprehensive reforms to enhance public safety by allowing the state to manage sex offenders upon the expiration of their criminal sentences through civil confinement or strict and intensive supervision.

According to the legislative history of SOMTA, there is a high rate of recidivism among certain sex offenders and certain sex offenders suffer from a mental abnormality that prevents them from controlling their sexual offending behavior. Unfortunately, despite these legislative decrees, there is scant empirical evidence to support the bases asserted by the Legislature in enacting SOMTA.

The court notes that with respect to “mental abnormality” as that term is defined in Section 10.03(i), there is no such diagnosis in the mental health field. The term lacks any psychiatric validity. Finally, despite the proliferation of sex offender treatment programs in prison and in psychiatric facilities arising out of the enactment of SOMTA, there are serious questions as to whether such programs have any effectiveness whatsoever in preventing recidivism. The Court equated the Kansas statute’s definition of “mental abnormality” with that of the mental illness standard required in the civil commitment context in upholding the constitutionality of the statute.

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 sex crimes prior to the enactment of SOMTA, already has been the subject of constitutional analysis by both state and federal courts in New York.

In Addington v Texas, the United States Supreme Court held that a civil commitment proceeding can in no sense be equated with a criminal proceeding. There, the U.S. Supreme Court upheld the clear and convincing standard of proof required by the Texas statute in civil confinement proceedings for the mentally ill, finding that, unlike in a criminal commitment proceeding, the state’s power in a civil commitment proceeding is not exercised in a punitive sense. The Court noted that the standard of proof of beyond a reasonable doubt has been reserved for criminal cases and that the weighing of the interests of the state against those of the persons subject to the statute is different in a civil context than in a criminal context.

In 1997, the Supreme Court upheld in Hendricks a comparable Kansas civil commitment statute for sex offenders. There, the Court found that the Kansas sex offender civil commitment statute raised no ex post facto issues because the statute was civil in nature and imposed no retroactive punishment.

In 2003, the Supreme Court articulated in Smith v Doe a two-step analysis for examining a challenged statute on the grounds that it violates the Ex Post Facto Clause. The Court held that the first step is to ascertain whether the Legislature intended the statute to be civil, rather than penal, in nature. If the intent was to establish a criminal proceeding, the inquiry ends there, as the statute violates the Ex Post Facto Clause.

If the Court finds that the Legislature intended to establish a civil proceeding the inquiry must continue. The next step requires the court to determine whether the statute is so punitive, either in purpose or in effect, as to negate the intended civil purpose.

In Smith, the Supreme Court held that, in this second step of the inquiry, a court should be guided by the seven factors which it had first outlined in Kennedy v Mendoza- Martinez: (1) whether the sanction involves an affirmative disability or restraint; (2) whether it has historically been regarded as a punishment; (3) whether it comes into play only upon a finding of scienter; (4) whether its operation will promote traditional aims of punishment-retribution and deterrence; (5) whether the behavior to which it applies is already a crime; (6) whether an alternative purpose to which it may rationally be connected is assignable for it; and (7) whether it appears excessive in relation to the alternative purpose assigned.

SOMTA statute, at issue here, has recently been examined by both federal and New York courts. Indeed, earlier this year, the New York Court of Appeals held in People v Harnett that a guilty plea to a sex offense is not automatically invalidated because the defendant was not warned that he may be subject to SOMTA. The Court noted that SOMTA is not penal in nature and is not designed to punish a past crime but, rather, is remedial in that it seeks to deter future sexual criminal behavior by the person who is subject to its strictures.

With respect to the specific Article 10 provision at issue in this proceeding, Section 10.07(c), in 2010, in State of New York v. Farnsworth, the Fourth Department already analyzed the constitutionality of the provision with respect to the standard of proof required by Section 10.07(c) in determining whether a non sex offense committed prior to SOMTA’s enactment was “sexually motivated,” thus making the person who committed the crime subject to the provisions of SOMTA. There, the Fourth Department held that the clear and convincing standard of proof as to whether a crime that was not a sex offense and was committed prior to SOMTA was sexually motivated meets constitutional due process under both state and federal law.

In Farnsworth, the Fourth Department noted that the United States Supreme Court already had determined that a person may be civilly committed based on clear and convincing evidence of mental illness and dangerousness, without proof of any prior criminal conviction at all.

In the case at bar, the Fourth Department rejected that respondent’s challenge that the due process and equal protection guarantees provided by the New York State Constitution, Article I, §§ 11, 6, and the Constitution of the United States, Amendment XIV, required the standard of proof of beyond a reasonable doubt in the determination that a crime committed before SOMTA, not previously designated as a sex offense, was sexually motivated. The statute met constitutional muster under an equal protection of the laws’ analysis. Applying a strict scrutiny analysis, the court found that the statute, as it applies to persons convicted of designated felonies that were sexually motivated and were committed prior to the effective date of the statute, was narrowly tailored to serve a compelling state interest.

The Ex Post Facto Clause of the Constitution of the United States provides, in relevant part, that “no ex post facto law shall be passed.” The United States Supreme Court has defined an ex post facto law as one which “punishes as a crime an act previously committed, which was innocent when done, which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with sex crimes of any defense available according to law at the time when the act was committed as held in Collins v Youngblood and Beazell v Ohio.

The Court finds that Section10.07(c), which provides that persons who committed felonies that were not sex offenses before SOMTA may be subject to the civil management provisions of SOMTA, does not violate the Ex Post Facto Clause.

SOMTA enjoys a strong presumption that they are constitutional. A party challenging a statute must demonstrate that the statute is invalid beyond a reasonable doubt.

In the case at bar, the respondent has failed to meet this burden.

Section 10.07(c) of Article 10 meets the Supreme Court’s two-step inquiry, set forth in Hendricks and Mendoza-Martinez, required to determine whether it is punitive in intent or effect.

With respect to the first step, as set forth more fully below, the Court finds that with respect to the provisions at issue, the Legislature’s intent was civil in nature. Even though, as noted below, the Criminal Court finds that the Legislature’s intent was to establish a statute civil in nature, the court must also determine, even if the intent was civil, whether the statute is so punitive, either in purpose or in effect, as to negate the State’s intent that it be a civil proceeding. Only the “clearest proof” will be sufficient to overcome the presumption that a statute by which the Legislature intended to establish a civil process is actually criminal in nature as held in Smith.

As to this second prong, as set forth further herein, the Court finds this provision in the statute is not so punitive as to negate the civil purpose conceived by the Legislature.

With respect to Section 10.07(c), the Legislature’s intent is demonstrated by the label – “civil” – given to the provision by the Legislature, the way in which the provision was codified, and the enforcement procedures it establishes, all identifiers of legislative intent as held in Smith v. Doe.

In creating this “civil” commitment scheme in the Mental Hygiene Law, not the Penal Law, the Legislature’s purpose is obvious. Section 10.07(c) also was codified in the Mental Hygiene Law, not with the new crime in the Penal Law. This legislative designation in Section 10.07(c) does not create a “new crime.” Section 10.07(c) is civil in nature. The Court also finds that Section 10.07(c) of Article 10 is not so punitive, either in purpose or in effect, as to negate the civil nature of the proceeding.

The Legislature’s purpose in enacting Section 10.07(c) was to define the type of individuals whose past crimes may subject such persons to civil management. Attempting to include persons who committed crimes prior to the Act’s effective date is a rational method to accomplish this aim.

In consideration of the seven Mendoza-Martinez factors, the court finds that Section 10.07(c) is civil in nature and is not so punitive in either purpose or effect so as to negate this civil intent. Only three of the seven factors – the fact that the sanction of civil management involves an affirmative disability or restraint, that the statute’s sanction only comes into play upon a finding of scienter, and that the behavior to which the sanction applies is already a crime – weigh in favor of a finding that Section 10.07(c)’s designation provision is punitive.

Most compelling in a review of the Mendoza-Martinez factors is that the State has a very important non-punitive purpose in enacting this designation provision and it has tailored a limited provision to deal with this purpose. Sex offenders who were convicted of non- sex crimes – at a time in the past when the distinction of being convicted of sex crimes or non- sex crime was meaningless, and prosecutors had little or no incentive to ensure that the sexual nature of a crime was somehow “captured” in the type of conviction – are being released into the community.

Based on the foregoing, RV’s motion to dismiss the Article 10 petition against him is denied.

New York Sex Crime Attorneys or New York Criminal Attorneys at Stephen Bilkis & Associates are experts in these fields of law. Should you have questions regarding the issues mentioned in the case above, please do not hesitate to call out toll free numbers or visit our office. We are prepared to discuss it with you.

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