Matter of State of New York v Rashid

Matter of State of New York v Rashid 2009 NY Slip Op 09525 [68 AD3d 615] December 22, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 10, 2010

In the Matter of State of New York, Appellant,
v
Mustafa Rashid, Respondent.

—[*1] Andrew M. Cuomo, Attorney General, New York (Laura R. Johnson of counsel), for appellant.

Marvin Bernstein, New York (Diane Goldstein Temkin of counsel), for respondent.

Order, Supreme Court, New York County (Daniel P. Conviser, J.), entered on or about July 1, 2009, which granted respondent's motion to dismiss the petition, unanimously affirmed, without costs.

Respondent was not subject to civil management pursuant to Mental Hygiene Law article 10 where he had served his sentence for a 1988 rape and sodomy and was on parole for a nonsexual offense and, in September 2008, the Division of Parole gave notice identifying him as a possible "detained sex offender" nearing release from custody. The different consequences of a Sexual Offender Registration Act determination and the possibility of involuntary civil commitment under Mental Hygiene Law article 10 (compare People v Knox, 12 NY3d 60 [2009], with Mental Hygiene Legal Serv. v Spitzer, 2007 WL 4115936, 2007 US Dist LEXIS 85163 [SD NY 2007], affd 2009 WL 579445, 2009 US App LEXIS 4942 [2d Cir 2009]), as well as the specific definition in the latter regarding which sentences other than those for sex offenses may be considered in determining an offender's eligibility for civil management (see generally People v Finley, 10 NY3d 647, 655 [2008]), render Penal Law § 70.30 inapplicable for the purpose of merging the sentence for the rape into respondent's subsequent sentence for the nonsexual offense (cf. People v Buss, 11 NY3d 553 [2008]). Contrary to the State's contention, Penal Law § 70.30 and Mental Hygiene Law article 10 are not so related that they must be harmonized (cf. Rector, Church Wardens & Vestrymen of St. Bartholomew's Church v Committee to Preserve St. Bartholomew's Church, 84 AD2d 309, 313 [1982], appeal dismissed 56 NY2d 645 [1982]). [*2]

We have considered the State's remaining contentions and find them unavailing. Concur—Tom, J.P., Buckley, Catterson, Freedman and Abdus-Salaam, JJ. [Prior Case History: 25 Misc 3d 318.]