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Court Decides Parole for SOMTA Qualifying Offense


Respondent Mustafa Rashid pleaded guilty to two counts of first-degree robbery, and single counts of first-degree burglar, first-degree rape, and first-degree sodomy. This plea satisfied charges arising from two separate criminal incident the robbery of a gas station attendant and a home invasion, for which Rashid 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 Lawyer said that, Rashid was released to parole supervision in July 1999, after serving 11 years and eight months of his sentence. But he was again 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 Rashid’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.

A New York Criminal Lawyer said that, Rashid was returned to prison for violating the conditions of his parole. 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. Rashid 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 on May 6, 2008. Upon pleading guilty to petit larceny, Rashid received a definite sentence, which he served at Rikers Island, a local correctional facility. Rashid remained subject to the supervision of the State Division of Parole throughout his time at Rikers Island, but his parole was not revoked, apparently because his jail sentence ended days before his parole expiration date: Rashid was freed from Rikers Island, and his parole supervision ended, when he reached the maximum term (20 years) of his consecutive indeterminate sentences.

The Attorney General filed a petition in Supreme Court seeking sex offender civil management of Rashid 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 crime offenders who suffer from mental abnormalities that predispose them to commit repeated sex crimes. A Queens Criminal Lawyer said to these ends, whenever an individual who may be a detained sex offender is nearing an anticipated release 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.

The Supreme Court directed that Rashid be confined pending the probable-cause hearing. At the probable-cause hearing, the Attorney General argued that Rashid was a detained sex offender because he was subject to State custody or supervision for his 1992 convictions for rape and sodomy by operation of section 70.30 of the Penal Law. The Attorney General also suggested, in the alternative, that Rashid’s SOMTA-qualifying offense was a sexually motivated designated felony because even though Rashid only pled to a misdemeanor, such was on the indictment with the sexually motivated robbery as well. When the judge asked the Attorney General “When did you begin the Article 10?” he responded, “On October 6, 2008, we served notice to the respondent pursuant to 10.05 of the Mental Hygiene Law.” The Attorney General immediately added that he was referring to section 10.05(e).

The judge concluded that Rashid was a detained sex offender. He explained that in doing so the Court relies on Article 70.00 of the Penal Law. Additionally the judge concluded that Rashid suffered from a mental abnormality, relying on the testimony of the State’s expert, a licensed psychologist and psychiatric examiner for OMH.

Accordingly, the court determined that there was probable cause to believe that Rashid was a sex offender requiring civil management. Because of Rashid’s “long history of criminality going back to his youth,” the court further determined that there was probable cause to believe that Rashid 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 Rashid 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.

Rashid, then filed a motion to dismiss the petition on several grounds, including that his conviction for a weapon-possession misdemeanor was not a sexually motivated designated felony. The judge granted Rashid’s motion because, as he subsequently explained, Rashid’s conviction for criminal possession of a weapon does not qualify as a designated felony under the statute and the only allegations in the second petition which asserted that Rashid was a detained sex offender arose from this misdemeanor conviction. The court granted the State leave to replead and file another petition, however.

The Attorney General then filed a third petition, the subject of this case. This petition relied upon case decided by the Supreme Court (Buss Case), handed down after the probable-cause hearing, and Penal Law § 70.30 to argue that Rashid was a “detained sex offender” because he was serving an aggregate maximum sentence that encompassed the 1992 convictions for rape and sodomy.

Rashid then again, moved to dismiss this petition on the ground that he was not a detained sex offender for two reasons: first, that at no relevant time was he serving a sentence or subject to parole or post release supervision for a “sex offense” or a “related offense,” as those terms are defined in article 10; second, that article 10 requires a respondent to be a detained sex offender when the petition is filed.

The Supreme Court granted Rashid’s motion and dismissed the petition, declaring that Rashid was not a detained sex offender at the time of either the interagency notice under section 10.05(b) or the case review team notice under section 10.05(e).

The Appellate Division affirmed. 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 the rape into Rashid’s subsequent sentence for the nonsexual offense.

The issue in this case is whether Rashid is considered a detained sex offender on the date the Attorney General filed a sex offender civil management petition against him in order to subject him to civil management under article 10.

The Court in deciding the case said that, it must first be considered whether an individual must be a detained sex offender on the date when the Attorney General files a sex offender civil management petition against him in order to remain subject to civil management under article 10.

In this case, Rashid was not subject to State custody or supervision at the time the Attorney General filed any of the three petitions. A New York Sex Crimes Lawyer said but a petition under the Mental Hygiene Law 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, as relevant to this appeal, 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 crime or for a related offense.

The Attorney General argues that the State may still pursue civil management in this case because Rashid, although not subject to parole supervision when the petitions were filed in Supreme Court, was a detained sex offender when the Division gave interagency notice pursuant to section 10.05(b). According to the Attorney General, the interagency notice marks the point in time “when this proceeding began”, even though Rashid was unaware of it. The State therefore asserts that filing the interagency notice somehow “locked in” or “froze” Rashid’s status as detained apparently for all time. As a result, it is unimportant that he was, in fact, not detained within the meaning of article 10 when the petition was filed.

The Court held that this novel interpretation finds no support in the statutory text. In the first place, the interagency notice required by section 10.05(b) refers to a person who may be a detained sex offender, not someone who is a detained sex offender. All of the notices called for by section 10.05, titled “Notice and case review,” simply denote milestones in an internal administrative review procedure that may, but usually does not result in a sex offender civil management petition. Thus, there is no actual proceeding against a respondent until the Attorney General elects to file a petition.

In a case that has been previously decided, the Court described the issue as whether respondents were detained sex offenders when the State began proceedings against them under article 10, clearly referring to “proceedings” commenced with the filing of a petition. If the Legislature had intended to enact something as counterintuitive as the State claims to have been the case, i.e., that an individual forever remains a detained sex offender subject to civil management under article 10 once an agency with jurisdiction notifies the Commissioner and the Attorney General that this individual may be a detained sex offender it surely would have made its wishes explicit.

Lacking any conspicuous textual support for its position, the State ask this Court to make inferences from section 10.06(h) and (f) of article 10. Section 10.06(h) provides that “if the respondent was released subsequent to notice under subdivision (b) of section 10.05 of this article, and is therefore at liberty when the petition is filed, the court shall order the respondent’s return to confinement, observation, commitment, recommitment or retention, as applicable, for purposes of the probable cause hearing.”

According to the State, this provision underscores that the Legislature contemplated an offender’s release prior to the filing of the petition; and thus, 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 returned 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; 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.

The Court said that, 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 if 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 Court further held that, in Buss, the defendant pleaded guilty in 1983 to one count of first-degree sexual abuse and one count of second-degree assault, and was sentenced to concurrent indeterminate sentences of 2 to 6 years’ imprisonment. While on parole in 1987, he attacked and stabbed an acquaintance. This time, Buss pleaded guilty to attempted murder in the second degree in full satisfaction of an indictment that included first-degree rape and first-degree sodomy counts. He was sentenced as a second violent felony offender to 10 to 20 years’ imprisonment.

When Buss was released from prison in 2002, the Board of Examiners of Sex Offenders determined that he was required to register under SORA, citing the 1983 conviction for sexual abuse, and recommended that he be designated a level three sex offender. Buss objected, arguing that SORA did not apply to him because his sentence of sexual abuse “was due to expire” before SORA took effect in 1996. The People countered that, by operation of Penal Law § 70.30(1)(b), Buss was still serving a sentence for his 1983 conviction when SORA took effect. Section 70.30(1)(b) provides that when two or more indeterminate sentences are consecutive, the minimum and maximum sentences are added to form aggregate minimum and maximum wholes, subject to certain limitations.

Thus, the Court agreed with the People, holding that for SORA purposes a prisoner serving multiple sentences is subject to all sentences, whether concurrent or consecutive, that make up the merged or aggregate sentence he is serving.

In this case, the State argues that, by virtue of Penal Law § 70.30(1)(b) and our decision in Buss, Rashid was on parole for a SOMTA-qualifying offense until November 4, 2008 when his aggregate indeterminate sentence of 10 to 20 years expired. This is so, they contend, because that sentence encompassed not only his convictions for robbery in 2001, but also his convictions for rape and sodomy in 1992. By contrast, Rashid reasons that although it made sense for this Court to look to section 70.30 when trying to figure out an inmate’s eligibility for SORA registration, the Court did so in the absence of any statutory guidance within SORA itself as to the eligibility of persons serving multiple sentences; and by contrast, Article 10 contains its own provision for determining which offenders subject to multiple sentences will be eligible for Article 10 civil commitment”; specifically, the definition for “[r]elated offenses.” The motion court and the Appellate Division agreed with Rashid on this point, and so this Court.

In sum, the Court held that when the Division notified the Commissioner and the Attorney General on September 29, 2008 that Rashid 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, Rashid did not stand convicted of a SOMTA-qualifying offense, and so was not a detained sex offender. Accordingly, the order of the Appellate Division should be affirmed.

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