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. In December 2001, 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. He was subsequently released to parole supervision on January 6, 2006.
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. Respondent 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 2008. Upon pleading guilty to petit larceny, he received a definite sentence, which he served at a local correctional facility. Respondent remained subject to the supervision of the State Division of Parole throughout his time at 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 (20 years) of his consecutive indeterminate sentences.
In ruling the case, the Court first 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. As a threshold matter, this issue is preserved for our review. Although not raised in the Appellate Division, Respondend contested timeliness on this basis in Supreme Court.
Here, the Respondent was not subject to State custody or supervision at the time the Attorney General filed any of the three petitions. But a petition 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 supervision for a sex offense or for a related offense”.
The Attorney General argues that the State may still pursue civil management in this case because Respondent, although not subject to parole supervision when the petitions were filed in Supreme Court, was a detained sex offender on September 29, 2008 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 Respondent was unaware of it. The State therefore asserts that filing the interagency notice somehow “locked in” or “froze” Respondent’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.
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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