In the Matter of the State of New York v. Mustafa Rashid
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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
----------------------------------------------------------------No. 205
In the Matter of the State of New
York,
Appellant,
v.
Mustafa Rashid,
Respondent.
Laura R. Johnson, for appellant.
Sadie Z. Ishee, for respondent.
READ, J.:
In this appeal, we are called upon to resolve issues of
interpretation of article 10 of the Mental Hygiene Law, the key
component of the recently enacted Sex Offender Management and
Treatment Act (SOMTA) (L 2007 ch 7).
We hold that in order to
pursue civil management under article 10, the Attorney General
must file the required petition against an individual in a court
of competent jurisdiction before that individual's release from
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We also hold that Penal Law §
70.30 is not relevant to the question of which sentences make
someone eligible for civil management under article 10.
I.
On January 6, 1992, respondent Mustafa Rashid pleaded
guilty to two counts of first-degree robbery (Penal Law §
160.15), and single counts of first-degree burglary (Penal Law
140.30), first-degree rape (Penal Law § 130.35), and first-degree
sodomy (former Penal Law § 130.50).
This plea satisfied charges
arising from two separate criminal incidents -- 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.
Rashid was released to parole supervision in July 1999,
after serving 11 years and eight months of his sentence.
But on
May 19, 2000, he was arrested and indicted separately for three
robberies.
On December 12, 2001, he pleaded guilty to two counts
of third-degree robbery (Penal Law § 160.05), 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
(Penal Law § 265.01), 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
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undischarged portion of the indeterminate sentence imposed on
Rashid in 1992 (see Penal Law § 70.25 (2-a); see also People ex
rel. Gill v Greene, 12 NY3d 1, 6 [2009]).
He was subsequently
released to parole supervision on January 6, 2006.
Rashid 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.
Rashid was next released to parole supervision in early 2008.
He
was arrested for the misdemeanor crimes of petit larceny (Penal
Law § 155.25) and criminal possession of stolen property in the
fifth degree (Penal Law § 165.40) 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 (the Division)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 on October 31, 2008, and his parole
supervision ended on November 4, 2008, when he reached the
maximum term (20 years) of his consecutive indeterminate
sentences.
On November 5, 2008, 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.
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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 (see Mental Hygiene Law §§ 10.01, 10.03 [i]).
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"2 other than the Division
must notify the Attorney General and the Commissioner of Mental
Health (the Commissioner), while the Division may elect to do so
(Mental Hygiene Law § 10.05 [b]).
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, with
respect to a sex offense or designated felony, in that
the person is either:
"(1) A person who stands convicted of a sex offense as
defined in subdivision (p) of this section [10.03], and
is currently serving a sentence for, or subject to
supervision by the division of parole, whether on
parole or on post-release supervision, for such offense
or for a related offense; . . .
"(4) A person who stands convicted of a designated
1
"Release" and "released" mean "release, conditional release
or discharge from confinement, from supervision by the division
of parole, or from an order of observation, commitment,
recommitment or retention" (Mental Hygiene Law § 10.03 [m]).
2
An "[a]gency with jurisdiction" over a person means "that
agency which, during the period in question, would be the agency
responsible for supervising or releasing such person, and can
include the department of correctional services, the office of
mental health, the office for people with developmental
disabilities, and the division of parole" (Mental Hygiene Law §
10.03 [a]).
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felony that was sexually motivated and committed prior
to the effective date of this article [10]." (Mental
Hygiene Law § 10.03 [g] [1], [4]).
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 (Mental Hygiene Law § 10.03
[p]).
The list of "designated felon[ies]" encompasses a broad
range of felony crimes, including assault, gang assault,
stalking, manslaughter, murder, kidnaping, 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"
(Mental Hygiene Law § 10.03 [l]).
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
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mental health or the field of developmental disabilities, as
appropriate, with experience in the treatment, diagnosis, risk
assessment or management of sex offenders" (Mental Hygiene Law §
10.05 [a], [e]).
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, whom the statute
identifies as "the respondent" at this point)3 (Mental Hygiene
Law § 10.05 [e]).
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" -- i.e., is both "detained" within the meaning
of section 10.03 (g) and suffers from a "mental abnormality" as
defined by section 10.03 (i)4 (see Mental Hygiene Law § 10.03
[q]).
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
3
The statute defines "[r]espondent" as "a person referred to
a case review team for evaluation, a person as to whom a sex
offender civil management petition has been recommended by a case
review team and not yet filed, or filed by the attorney general
and not dismissed, or sustained by procedures under this article"
(Mental Hygiene Law § 10.03 [n]).
4
"Mental abnormality" is defined as "a congenital or
acquired condition, disease or disorder that affects the
emotional, cognitive, or volitional capacity of a person in a
manner that predisposes him or her to the commission of conduct
constituting a sex offense and that results in that person having
serious difficulty in controlling such conduct" (Mental Hygiene
Law § 10.03 [i]).
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sex offender management petition" (Mental Hygiene Law § 10.05
[f]).
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" (Mental Hygiene Law § 10.05
[g]).
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 (Mental Hygiene Law § 10.06 [a]).
Within 30 days after a petition is filed, Supreme 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" (Mental Hygiene Law § 10.06 [g]).
If
probable cause is established, the respondent may be confined,
pending completion of a jury trial to be conducted within 60 days
thereafter (Mental Hygiene Law §§ 10.06 [k], 10.07 [a]).
The
jury (or judge, if jury trial is waived) must then determine "by
clear and convincing evidence whether the respondent is a
detained sex offender who suffers from a mental abnormality"
(Mental Hygiene Law § 10.07 [d]).
The Attorney General bears the
burden of proof, and any jury determination must be by unanimous
verdict (id.).
If the jury (or judge, as the case may be) concludes
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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" (Mental
Hygiene Law § 10.07 [f] [emphasis added]).
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" (id.).
Alternatively, if the judge "does not find
that the respondent is a dangerous sex offender requiring
confinement," the court "shall make a finding of disposition that
the respondent is a sex offender requiring strict and intensive
supervision, and the respondent shall be subject to a regimen of
strict and intensive supervision and treatment" in accordance
with article 10's provisions (id.).5
5
The third annual report made by the Commissioner to the
Governor and the Legislature pursuant to Mental Hygiene Law §
10.10 (i) (see
http://www.omh.ny.gov/omhweb/statistics/SOMTA_Report.pdf) states
that, during the 12-month reporting period from November 1, 2008
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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 . . . warrant[ing] notice to [OMH] of
[impending] release"; and that he was under the Division's
supervision until his sentence expired on November 4, 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 Rashid exhibited a
"pattern of sex offense."
On October 6, 2008, OMH gave section 10.05 (e) notice
to Rashid; and on October 17, 2008, OMH issued section 10.05 (g)
notice to Rashid and the Attorney General.
The section 10.05 (g)
notice set out two findings made by the case review team: that
Rashid was "a sex offender requiring civil management as defined
by SOMTA"; and -- in contrast to the SOMTA-qualifying offense
flagged in the referral from OMH (i.e., first-degree sodomy) -that Rashid's "sex offense was a designated felony that was
through October 31, 2009, OMH handled 1,798 referrals (involving
1,686 unique offenders) from agencies with jurisdiction. Of
these 1,686 offenders, 194 (11.5%) were referred for evaluation
by a case review team, of which 63 (3.7%) were recommended for
civil management. Further, from April 13, 2007, when SOMTA took
effect, to October 31, 2009, there have been 185 decisions
regarding civil management. Mental abnormality was found in 171
(92.4%) of the trials, 99 of which resulted in a finding that the
respondent is a dangerous sex offender requiring confinement, and
72 of which resulted in orders mandating strict and intensive
supervision and treatment.
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As noted previously, Rashid was released
from jail on October 31, 2008, his parole expired on November 4,
2008, and the Attorney General filed a sex offender management
petition against him the next day, November 5, 2008.
Supreme Court directed that Rashid be confined pending
the probable-cause hearing.
Upon Rashid's motion, the court
dismissed the first petition for improper service, but denied
Rashid's application for immediate release from custody in light
of the Attorney General's representation that a second petition
would be filed the same day.
At the probable-cause hearing held on November 19,
2008, 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 [i.e., his plea in
2001 to weapon possession] the misdemeanor 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?"
6
Section 10.05 (g) of the Mental Hygiene Law states that
where the notice "indicates that a respondent stands convicted of
or was charged with a designated felony, it shall also include
the case review team's finding as to whether the act was sexually
motivated."
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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
"[i]n doing so the Court relies on Article 70.00 of the
Penal Law, which relates to consecutive sentences . . .
Under Article 70.00 [the 1992 and 2001] sentences
combined so that the minimum and maximum instead of
being 8 to 16 is 10 to 20. And that if this proceeding
was commenced prior to the expiration of the 20 years
during which time [Rashid] was still incarcerated,
accordingly under the definition of a detained sex
offender, [he] is a detained sex offender" (emphasis
added).
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 (see Mental Hygiene Legal Serv. v Spitzer, 2007 WL
4115936 [SD NY 2007], affd 2009 WL 579445 [2d Cir 2009] [imposing
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preliminary injunction requiring specific, individualized
judicial finding with respect to portion of Mental Hygiene Law §
10.06 (k) addressing pretrial detention]).
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 next moved to dismiss the petition on several
grounds, including that his conviction for a weapon-possession
misdemeanor was not a sexually-motivated designated felony.
On
June 5, 2009, the judge granted Rashid's motion because, as he
subsequently explained, Rashid's "conviction for criminal
possession of a weapon in the fourth degree (a class A
misdemeanor) does not qualify as a 'designated felony' under the
statute;" and "[t]he only allegations in the second petition
which asserted that [Rashid] was a detained sex offender arose
from this misdemeanor conviction" (25 Misc 3d 318, 326 [New York
County 2009]).7
The court granted the State leave to replead and
file another petition, however.
7
The probable-cause court was likewise not won over by the
Attorney General's argument that Rashid was in State custody or
under State supervision for a sexually motivated designated
felony stemming from his 2001 convictions. In the motion-court
judge's view, the effect of his dismissal of the second petition
and the State's subsequent filing of a third petition was
therefore simply "to conform the pleadings in the petition to the
allegations which both of the parties . . . had been assuming
would constitute the basis for [Rashid's] trial" (25 Misc 3d at
327, n 9).
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The Attorney General then filed a third petition -- the
subject of this case -- on June 10, 2009.
This petition relied
upon People v Buss (11 NY3d 553 [2008]) (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.
Further, the Attorney General also asserted
in the third petition that the relevant date to determine whether
Rashid was a detained sex offender was September 29, 2008, the
date on which the Division gave section 10.05 (b) notice to the
Commissioner and the Attorney General.8
Rashid 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 postrelease 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.
rule on the latter issue.
Supreme Court did not
Instead, for purposes of Rashid's
motion to dismiss, the court assumed that the State's position
was correct (id. at 330).
8
This was a shift of position. As already noted, the
Attorney General represented at the probable-cause hearing that
the relevant date was October 6, 2008, when OMH gave section
10.05 (e) notice to Rashid. The probable-cause court did not
discuss the timeliness issue, but implicitly decided that the
Attorney-General had commenced a timely proceeding.
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Turning to the first issue, the judge concluded that
Buss did not govern which sentences, in addition to sex offenses,
make an individual eligible for civil management because the
Legislature "obviously inserted" the definition for "[r]elated
offenses" into the statute for this very purpose (id. at 332).
By contrast, SORA "provide[d] no clear answer regarding the
sentence calculation question . . . addressed . . . in Buss,"
making application of the general rule in Penal Law § 70.30
reasonable (id. at 331).
Applying article 10's definitions for a "detained sex
offender" and "related offenses" to the facts of this case, the
judge observed that at the time Rashid received the section 10.05
(b) notice, he was in jail for petit larceny; he was not an
inmate incarcerated under orders of commitment received by the
Department of Correctional Services (DOCS).
And while Rashid was
still subject to parole supervision for his 2001 convictions,
those convictions were not for sex offenses, or for crimes that
were part of the same criminal transaction as a sex offense.
The
judge concluded that because Rashid was therefore not "currently
serving a sentence for, or subject to supervision by the division
of parole . . . for [a sex] offense or for a related offense"
(Mental Hygiene Law § 10.05 [g] [1]), he was not a detained sex
offender at the time alleged by the Attorney General to be
relevant -- i.e., September 29, 2008.
Accordingly, Supreme Court
granted Rashid's motion and dismissed the petition, declaring
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that Rashid was not a detained sex offender at the time of either
the interagency notice under section 10.03 (b) or the case review
notice under section 10.03 (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, "render[ed] Penal
Law § 70.30 inapplicable for the purpose of merging the sentence
for rape into [Rashid's] subsequent sentence for the nonsexual
offense" (68 AD3d 615, 616 [1st Dept 2009]).
After granting the
State permission to appeal (14 NY3d 711 [2010]), we denied
Rashid's motion to vacate the stay of his release originally put
in place by Supreme Court and continued by the Appellate
Division, and granted him a calendar preference (15 NY3d 801
[2010]).
We now affirm.
II.
We first consider 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, Rashid contested
timeliness on this basis in Supreme Court (see Matter of
Seitelman v Lavine, 36 NY2d 165, 170 n2 [1975] ["This court will
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consider a question that has been raised in the tribunal of
original jurisdiction even though it may not have been argued in
the Appellate Division."]; Telaro v Telaro, 25 NY2d 433, 437-438
[1969] [expressly rejecting argument that party "abandoned or
waived" an argument by failing to raise it at the Appellate
Division]).
Here, Rashid 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" (Mental Hygiene Law
§ 10.06 [a] [emphasis added]), which is defined as "a detained
sex offender who suffers from a mental abnormality" (Mental
Hygiene Law § 10.03 [q]).
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] offense or for a related offense" (Mental
Hygiene Law § 10.03 [g] [1] [emphasis added]; see also People ex
rel. Joseph II. v Superintendent of Southport Correctional
Facility (15 NY3d 126, 135 [2010] [remarking that Legislature
could have, but did not, extend article 10's coverage to sex
offenders living unsupervised in the community]).
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
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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"
(emphasis added), 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.9
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" (emphasis added), 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
9
The dissent principally argues that a petition may be filed
against someone who is not in State custody or subject to State
supervision because "the Legislature expressed an unmistakable
intent throughout article 10 not to impose rigid deadlines for
taking action" (dissenting opn at 14). While it is true that the
failure to meet article 10's timelines does not defeat the
subsequent filing of a petition, it does not follow that the
Attorney General may seek the civil commitment of an individual
over whom the criminal justice system no longer exerts authority.
It also does not follow that, having timely commenced a
proceeding by the filing of a petition, the subsequent trial has
to be completed before that individual's underlying sentence
expires (see dissenting opn at 19).
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in an internal administrative review procedure that may -- but
usually does not (see n 5 supra) -- result in a sex offender
management petition.
Thus, there is no actual "proceeding"
against a respondent until the Attorney General elects to file a
petition (see CPLR 304 [a] ["(a) special proceeding is commenced
by filing a petition").
In Joseph II., we described the issue as
"whether [respondents] were detained sex offenders when the State
began proceedings against them under article 10" (15 NY3d at 132
[emphasis added]), 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 asks us to make inferences from sections
10.06 (h) and (f) of article 10.
Section 10.06 (h) provides that
"[i]f 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" (Mental Hygiene Law § 10.06 [h]).
According to the State, this provision "underscores that the
Legislature contemplated an offender's release prior to the
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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 10.03 (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 (see dissenting opn at 18).
Section 10.06 (f) authorizes the Attorney General to
10
This seems to have been the fact pattern in People ex rel.
David NN v Hogan (53 AD3d 841 [3d Dept 2008] and Matter of State
of New York v Millard (19 Misc 3d 283 [Sup Ct, Broome County,
2008]), the two lower court cases relied on by the State and
cited by the dissent to argue that section 10.06 (h) "expressly
contemplates that a petition can be filed after a respondent has
completed a sentence" (dissenting opn at 17). In both David NN
and Millard, the sex offenders, recently released from OMH
custody, were subject to parole supervision when the Attorney
General filed the article 10 petitions against them.
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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 "the 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
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No. 205
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.11
As the State correctly noted, the definition of "detained sex
offender" does not cover a person in custody pursuant to a
securing petition filed pursuant to section 10.06 (f).
In sum, we 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
11
The Mental Hygiene Legal Service contested the facial
constitutionality of this provision in federal court on due
process grounds. The District Court Judge, although
acknowledging "serious and legitimate concerns about the
potential operation of § 10.06 (f)," ultimately "decline[d] to
issue a preliminary injunction against a provision that [might]
rarely if ever be used, or if used, may be capable of being
interpreted or applied [by New York courts] in a manner that does
not offend the due process clause"; i.e., "[d]epending upon how
New York courts interpret their own statute, there may be no need
to reach any federal constitutional issue" (Mental Hygiene Legal
Serv., 2007 WL 4115936 at *11).
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No. 205
play in an appropriate case (see Mental Hygiene Law § 9.27 [a]).
III.
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 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.
We agreed with the People, holding that "for SORA
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No. 205
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.
Buss was therefore
still serving a sentence for his 1983 sex crime at the time SORA
became effective in 1996" (11 NY3d at 557-558).
We noted that
"the primary function" of section 70.30 was "to allow for the
ready calculation of parole eligibility," but considered it
"reasonable" to consider this provision to decide "whether a
prisoner who has been given multiple sentences is subject to all
his sentences for the duration of his term of imprisonment" for
purposes of determining SORA eligibility (id. at 557).
Here, 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 us to look to section 70.30 when
trying to figure out an inmate's eligibility for SORA
registration, we "did so in the absence of any statutory guidance
within SORA itself as to the eligibility of persons serving
multiple sentences;" and "[b]y contrast, Article 10 contains its
own provision for determining which offenders subject to multiple
sentences will be eligible for Article 10 civil commitment";
- 23 -
- 24 specifically, the definition for "[r]elated offenses."
No. 205
The
motion court and the Appellate Division agreed with Rashid on
this point, and so do we.
"Related offenses" include (1) offenses "prosecuted as
part of the same criminal action or proceeding" as a sex offense
as defined in article 10; (2) offenses "which are part of the
same criminal transaction" as a sex offense as defined in article
10; and (3) offenses "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"
(Mental Hygiene Law § 10.03 [l]).
Individuals subject to State
custody or supervision on account of an offense within the first
two categories of "[r]elated offenses" are eligible for civil
management under article 10; the third category covers "inmates"
serving their "current terms of incarceration" in DOCS's
custody.12
Thus, the Legislature enacted in article 10 a
12
This third category of "[r]elated offenses" is broadly
worded, reflecting the Legislature's apparent decision to give
the State more leeway to pursue civil commitment against soon-tobe-released DOCS inmates than parolees (see also section 10.05
[b] [providing that an "agency with jurisdiction" must notify the
Attorney General and the Commissioner of the impending release of
a potential detained sex offender, while the Division may do
so]). Thus, article 10 does not set out a "more favorable"
eligibility rule for DOCS inmates about to be released on parole
or postrelease supervision than Penal Law § 70.30 creates for
purposes of assessing their SORA eligibility (cf. dissenting opn
at 25). A DOCS inmate does not even have to have been committed
to DOCS's custody for a sex offense in order to be a "detained
sex offender."
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No. 205
comprehensive and complex scheme that defines which offenses
"count" for purposes of eligibility for civil management: sex
offenses, sexually-motivated designated felonies committed prior
to article 10's effective date, and those non-sex crimes that are
related offenses.
Superimposing Penal Law § 70.30 on article 10
for purposes of making eligibility determinations would distort
this statutory scheme.
The State argues, in the alternative, that Rashid's
2001 robbery convictions qualify as "related offenses" because
"at the time the article 10 process began, [his] 'current term of
incarceration' was that [20]-year aggregate maximum term, in
connection with which [DOCS] had received the commitment orders
related to his robbery convictions as well as to his rape
conviction."
But Rashid was on parole and/or incarcerated at
Rikers Island when "the article 10 process" was kicked off in the
fall of 2008; the third prong of the definition of "related
offenses" covers DOCS inmates, not a parolee or someone
incarcerated for a misdemeanor in a local jail.
In sum, 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
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No. 205
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, without costs.
- 26 -
Matter of State of New York v Mustafa Rashid
No. 205
GRAFFEO, J. (dissenting):
In 1988, after respondent Mustafa Rashid was released
from a Texas prison, he forcibly raped one woman and sodomized
another during an armed invasion of a residence in New York.
Released on parole in 1999, Rashid subsequently burglarized a
woman's apartment, brandished a weapon, sexually assaulted the
woman and her eight-month-old daughter, and then threatened to
kill them.
Rashid was re-incarcerated and prior to the
completion of his sentence, the State instituted civil commitment
proceedings against him pursuant to article 10 of the Mental
Hygiene Law because he was considered a sex offender with an
alleged mental abnormality that predisposed him to committing
sexually violent crimes if released into the community.
The
State's evidence showed that Rashid denied having engaged in
sexual assaults, refused to complete sex offender treatment while
imprisoned, showed "significant traits" of being a psychopath and
was at "high risk" of committing additional sex crimes.
A mental
health expert opined that Rashid's release from confinement
"would be a serious danger to the community" and that nothing
less than his commitment to a secure facility would be sufficient
to ensure the safety of the public.
- 1 -
Based on this proof, it is
- 2 -
No. 205
undisputed that there was probable cause to believe that Rashid
was a subject for civil management.
Because the majority concludes that Rashid is not a sex
offender within the meaning of article 10 and should be freed
into society without restriction, I respectfully dissent.
I
Realizing that certain sexual predators pose a threat
to public safety after their sentences expire, the Legislature
has adopted extensive statutory procedures for the examination of
certain individuals and, where declared to be mentally ill, such
persons may be eligible for civil confinement beyond the
termination of their supervision by the criminal justice system.
The State originally utilized article 9 of the Mental Hygiene
Law, which permits involuntary hospitalization of the mentally
ill, but this Court held that incarcerated persons were to be
processed under Correction Law § 402 because it was specifically
directed toward mentally ill persons who were imprisoned (see
State of N.Y. ex rel. Harkavy v Consilvio, 7 NY3d 607 [2006]
["Harkavy I"]).
Apparently concerned that section 402 was inadequate
(see People ex rel. Joseph II. v Superintendent of Southport
Correctional Facility, 15 NY3d 126, 132 [2010]), in 2007, the
Legislature enacted the Sex Offender Treatment and Management Act
as article 10 of the Mental Hygiene Law (L 2007, ch 7).
legislative impetus for the Act was a concern that some
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The
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No. 205
recidivistic sex offenders "have mental abnormalities that
predispose them to engage in repeated sex offenses" and should be
placed in "comprehensive programs of treatment and management"
(Mental Hygiene Law § 10.01 [a], [b]).
The mental abnormalities
that qualify offenders for civil management are those that cause
"serious difficulty in controlling" the urge to engage in
sexually violent criminal conduct (id. § 10.03 [i]; see id.
§ 10.03 [q]).
Article 10 provides that continued confinement
beyond the expiration of a criminal sentence is restricted to the
most dangerous sex offenders who have "such a strong
predisposition to commit sex offenses, and such an inability to
control behavior, that the person is likely to be a danger to
others and to commit sex offenses if not confined to a secure
treatment facility" (id. § 10.03 [e]).
Sex offenders with mental
abnormalities that do not rise to that level of dangerousness are
treated instead with a program of "strict and intensive
supervision" that does not involve confinement in a mental
hygiene secure facility (id. § 10.03 [r]).
In light of the
restrictions on personal freedom that stem from an adjudication
that a person is a sex offender requiring civil management,
article 10 provides those individuals subject to review with
specific procedural and substantive protections (see e.g. id.
§§ 10.06 [b], [c], [e], [g]; 10.07 [d], [e]; 10.09).
The provisions of article 10 apply to any person who
may be a "detained sex offender."
As relevant to the case now
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No. 205
before us, the definition of a "detained sex offender" includes
"a person who is in the care, custody, control, or supervision of
an agency with jurisdiction" -- such as the Department of
Correctional Services (DOCS), the Division of Parole or the
Office of Mental Health (OMH) -- and is "currently serving a
sentence for, or subject to supervision by the division of
parole" for a sex offense or a related offense (id. § 10.03 [g]
[1]).
Article 10 review begins when the agency with jurisdiction
over a sex offender notifies the Attorney General and OMH that
the individual is nearing "release" (id. § 10.05 [b]), i.e., the
completion of incarceration, postrelease supervision or parole
(see id. § 10.03 [m]).
OMH then reviews the person's records to
determine whether the sex offender should be referred to a "case
review team" for evaluation (id. § 10.05 [d]).
If the individual is referred to the review team,
notice of the referral must be provided to the sex offender (see
id. § 10.05 [e]) and that individual is then designated a
"respondent" for the remainder of the proceedings (see id.
§ 10.03 [n]).
The case review team assesses various records and
materials to evaluate whether the respondent is a sex offender
who suffers from a "mental abnormality" and is in need of civil
management (see id. § 10.05 [e]).
If found to require further
management, article 10 directs the review team to notify the
respondent and the Attorney General (see id.).
The Attorney
General must then decide whether to file a civil management
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No. 205
petition in court against the respondent (see id. § 10.06 [a]).
Once a petition is filed, counsel is appointed for the
respondent and a court must find probable cause to believe that a
sex offender is in need of civil management (see id. § 10.06 [c],
[g]).
In cases where probable cause exists, the respondent is
entitled to have a jury unanimously determine whether the
Attorney General has proved by clear and convincing evidence that
the respondent is a sex offender with a mental abnormality (see
id. § 10.07 [d]).
Should the fact-finder conclude that the State
has met its burden, the court must then make its own
determination as to whether the respondent should be confined in
a secure facility or permitted to remain in the community under
intensive supervision (see id. § 10.07 [f]).
II
Respondent Mustafa Rashid was incarcerated in Texas in
the 1980s following his second robbery conviction in that State.
He was paroled in May 1988 and moved to New York.
In October of
that year, Rashid stole money during a knife-point robbery of a
gas station.
On November 8th, he invaded a home while armed,
stole property, forcibly raped a woman, sodomized another and
stabbed a person who attempted to intercede.
Rashid subsequently
pleaded guilty to rape in the first degree, sodomy in the first
degree, two counts of robbery in the first degree and robbery in
the second degree.
He was sentenced to an aggregate prison term
of 8 to 16 years.
- 5 -
- 6 Rashid was paroled in July 1999.
No. 205
Less than a year
later, he committed three different robberies during a four-day
period.
According to the indictments, the first robbery occurred
when he entered a woman's home, indicated that he had a gun and
threatened to shoot her if she did not give him money.
The next
day, Rashid approached a woman on an elevator, again pretended to
have a gun and said that he would kill her unless she handed over
money.
After she replied that she had none, he went to the
victim's apartment and told her husband that he had kidnaped her,
knew she was pregnant and would kill her if the man did not give
him cash.
The third robbery occurred when Rashid burglarized
another woman's residence.
He displayed an ice pick and
threatened to kill the woman if she did not follow his orders.
Rashid took the woman's eight-month-old daughter out of her arms,
touched the baby's vagina, placed the ice pick to the woman's
neck, fondled her breasts and masturbated until he ejaculated.
While continuing to threaten the woman, he said, "If you don't
give me money, I will kill you and your baby."
Rashid some cash and he left.
The woman gave
Rashid was arrested later that
day.
As a result of these incidents, DOCS revoked Rashid's
parole based on the 1988 home invasion and sex offenses.
For
these new crimes, he was indicted for robbery in the first
degree, burglary, forcible sexual abuse, weapon possession and
- 6 -
- 7 related offenses.
No. 205
Rashid subsequently pleaded guilty to two
counts of robbery in the first degree and one count of criminal
possession of a weapon in the fourth degree.
An aggregate
sentence of 2 to 4 years was imposed and was to run consecutively
to the undischarged portion of the prior 8 to 16-year sentence
that Rashid was still serving (see Penal Law § 70.25 [2-a]).
Under Penal Law § 70.30 (1) (b), DOCS merged the two sentences
into one, resulting in a combined sentence of 10 to 20 years that
would not be completed until November 2008.
Rashid was paroled a second time in 2006, but parole
supervision was revoked that July after Rashid was arrested for
criminal possession of stolen property and larceny.
He was given
a third opportunity at parole, which he failed by using cocaine
and not participating in drug treatment.
After being paroled
again in February 2008, a few months later Rashid was caught
shoplifting and was charged with petit larceny.
Since he pleaded
guilty to that crime in return for a one-year sentence to be
served at Riker's Island, and his sentence for the 1988 sex
offenses and 2000 robberies was due to expire in November 2008,
DOCS decided not to pursue revocation of his parole.
On September 29, 2008, the Division of Parole began an
article 10 civil management review by notifying OMH that Rashid
was a detained sex offender who was nearing the end of his
sentence.
On October 6th, OMH notified Rashid that his case had
been referred to a review team to determine whether it would be
- 7 -
- 8 recommended that he required civil management.
No. 205
Later that month,
the review team informed the Attorney General that it had
concluded that Rashid required civil management.
Rashid was released from Riker's Island on October 31,
2008.
His parole for the 1988 and 2000 offenses ended on
November 4th.
The Attorney General filed an article 10 petition
in Supreme Court the next day.
Because Rashid was at liberty,
the court ordered his return to custody pursuant to Mental
Hygiene Law § 10.06 (h) pending a hearing to determine whether
there was probable cause to believe that Rashid was a sex
offender requiring civil management.
At the probable cause hearing, a psychologist for the
State testified about the evaluation of Rashid.
He stated that
Rashid had denied the sexual components of his crimes despite his
prior guilty pleas and that he suffered from two psychological
disorders that caused him to have trouble controlling his
tendencies and behavior, and that a particular component of his
personality disorder involved the acting out in a "sexually
aggressive manner" when he was given the opportunity during the
commission of non-sexual crimes.
The psychologist also believed
that Rashid showed "significant traits" of being a psychopath and
that Rashid's poly-substance abuse contributed to his difficulty
maintaining "independent impulse control" over his sexual
predispositions while under the influence of narcotics.
The psychologist used an actuarial instrument called
- 8 -
- 9 -
No. 205
the Static 99 to assess Rashid's likelihood of committing another
sex offense.
He assigned Rashid a raw score of 7 out of 10,
which placed him in "a high risk category for future sexual
recidivism" that made him 46 times more likely than the average
individual to commit a sex crime in the next five years and 66
times more likely over a 10-year span.
The expert also noted
that Rashid had never completed a sex offender treatment program.
Based on all of these factors, the psychologist concluded that
releasing Rashid without any restrictions "would be a serious
danger to the community" and that he needed to be "in a secured
treatment facility" pending the article 10 trial.
Supreme Court
found probable cause to believe that Rashid was a sex offender
requiring civil management and therefore ordered that he be
confined until trial.
In the petition underlying the trial, the State alleged
that Rashid was a "detained sex offender" at the time the Mental
Hygiene Law § 10.05 (b) notice was issued by the Division of
Parole to OMH in September 2008.
Although the maximum 16-year
sentence for the 1988 sex offenses had been set to expire in
2004, the State maintained that because that sentence ran
consecutively to the sentence for the 2000 convictions, and in
accordance with People v Buss (11 NY3d 553 [2008]), the total
aggregate sentence was 10 to 20 years.
Consequently, the State
asserted that the sentence for the sex offenses did not expire
until November 2008 and, therefore, Rashid remained detained for
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No. 205
a sex crime when the article 10 notice was issued regarding civil
commitment review.
The State alternatively contended that the
2000 convictions were "related offenses" that could serve as a
predicate for an article 10 petition because they were referenced
in the DOCS commitment orders and those sentences related to the
earlier sex crimes since the prison terms ran consecutively.
Prior to trial, Rashid moved to dismiss the petition,
claiming that the reasoning of Buss did not apply to his case
because it dealt with the requirements of the Sex Offender
Registration Act (SORA) and, furthermore, his 2000 convictions
were not "related offenses" since the commitment orders did not
cite the sentence for the 1988 sex crimes.
that the petition was untimely.
Rashid maintained
He asserted that even if Buss
applied, he was not a "detained" sex offender when the State
instituted the article 10 proceeding since his criminal sentence
expired the day before the first petition had been filed.1
As the
majority notes, Supreme Court granted Rashid's motion and
dismissed the petition (25 Misc 3d 318 [Sup Ct, NY County,
2009]), and the Appellate Division affirmed (68 AD3d 615 [1st
Dept 2009]).
III
I am dissenting in this case because I agree with the
1
Rashid's argument was directed at the third article 10
petition. The first petition was dismissed for improper service;
the second was dismissed because it was erroneously premised on a
misdemeanor offense.
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No. 205
State's contention that Rashid was a detained sex offender when
the article 10 process commenced.
The different actors in the
article 10 process -- the case review team, the Attorney General
and the probable cause court -- must all decide whether a person
is a "sex offender requiring civil management" (Mental Hygiene
Law §§ 10.05 [e]; 10.06 [a], [k]), a phrase that requires the
offender to be "detained" (id. § 10.03 [q]).
As relevant to this
appeal, a sex offender is defined as detained under the statute
if the person "stands convicted of a sex offense" and is
"currently serving" a sentence, PRS or parole for that offense or
a related offense (id. § 10.03 [g] [1]).
The threshold issue,
and the basis of my disagreement with the majority and the courts
below, is at what operative point must an offender be "currently
serving" a sentence for a sex crime to qualify for civil
management review.
Textually, the statutory language employs the present
tense (see id.).
The majority concludes that this requires the
Attorney General to allege in an article 10 petition that the sex
offender is serving a sentence and remains "detained" at the time
the petition is filed.
Certainly, the words used by the
Legislature in a statutory enactment usually provide the initial
basis for analyzing its intended scope (see e.g. Matter of M.B.,
6 NY3d 437, 447 [2006]).
The majority's interpretation is
probably not untenable if the language is viewed in isolation.
But there are instances when a strictly textual analysis of an
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No. 205
isolated phrase cannot be harmonized with other parts of a
comprehensive legislative scheme and would produce results that
are so fundamentally inconsistent with the overarching purpose of
the statute that it must yield to reasonableness and common sense
in order to truly effectuate the Legislature's intent (see e.g.
Long v State of New York, 7 NY3d 269, 273 [2006]; People v Santi,
3 NY3d 234, 242 [2004]).
This is one of those cases.
The majority's holding
that a petition must be filed before a sex offender completes a
sentence cannot be reconciled with other provisions of the Act's
text, its structure or its underlying legislative purpose.
The
majority's analysis will also give rise to a conundrum because a
simplistic definitional analysis of "currently serving," carried
to its logical conclusion, will render article 10 inapplicable in
many cases that the Legislature intended to reach.
Based on my
reading of article 10 as a whole, I believe that the crucial
juncture for determining whether an offender is "detained" and
"currently serving" a sentence for a sex crime occurs at the time
the offender is first notified that his case is being reviewed
under article 10.
I offer several reasons for this conclusion.
Nothing in the civil management act expressly imposes a
strict time limitation on the Attorney General's ability to file
a petition and commence the court proceeding.
Rather, the Act
establishes advisory time frames for each of the early stages in
the article 10 process.
The initial notice to OMH and the
- 12 -
- 13 -
No. 205
Attorney General is supposed to occur at least 120 days before a
sex offender's anticipated release (see Mental Hygiene Law
§ 10.05 [b]).
The case review team's notice of its determination
is to be issued within 45 days after OMH was first notified (see
id. § 10.05 [g]).
If the Attorney General decides that a
petition will be filed, it should be done within 30 days after
receiving notice of the case review team's finding (see id.
§ 10.06 [a]).
Each of these statutes emphasize that the failure
to meet these time frames "shall not affect the validity of [any]
notice or any subsequent action, including the filing of a sex
offender civil management petition" by the Attorney General (id.
§ 10.05 [b] [emphasis added]; see id. § 10.05 [g]; § 10.06 [a]).
Under the majority's rationale, the latter phrase is rendered
superfluous and it ignores the catch-all provision that
emphasizes that the "[t]ime periods specified" in article 10 "for
actions by state agencies are goals that the agencies shall try
to meet, but failure to act within such periods shall not
invalidate later agency action except as explicitly provided by
the provision in question" (id. § 10.08 [f]).
The majority overlooks three important factors in
finding the petition here untimely.
The most obvious is that the
Legislature expressed an unmistakable intent throughout article
10 not to impose rigid deadlines for taking action, up to and
including the filing of the petition.
Second, the Attorney
General is given 30 days to consider the OMH review team's
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No. 205
finding before deciding whether to file a petition (see id.
§ 10.06 [a]).
The Attorney General's office received Rashid's
case on October 17, 2008 and made a decision on November 5th -less than 30 days later -- yet it is being penalized by the
majority for fulfilling its responsibility to properly review a
case before deciding to proceed with a petition.
Third, even if
the petition had been filed more than 30 days after receipt of
the referral, article 10 expressly provides that no sanction may
be imposed, but that is effectively what the majority has done by
dismissing the petition.
There was undoubtedly a practical reason for the
Legislature to adopt advisory time guidelines rather than
mandatory directives.
It recognized that the number of cases and
the time necessary to engage in adequate review would vary.
For
the 12-month period from November 2007 to the end of October
2008, OMH reviewed 1581 sex offenders for possible civil
management2 and from November 2008 to the end of October 2009, the
agency reviewed 1798 cases.3
From the large pool of cases
2
See New York State Office of Mental Health, 2008 Annual
Report on the Implementation of Mental Hygiene Law Article 10, at
8, available at
http://www.omh.state.ny.us/omhweb/resources/publications/2008_SOM
TA_Report.pdf (accessed October 29, 2010) (hereinafter 2008 OMH
Report).
3
See New York State Office of Mental Health, 2009 Annual
Report on the Implementation of Mental Hygiene Law Article 10, at
8, available at
http://www.omh.state.ny.us/omhweb/statistics/SOMTA_Report.pdf
(accessed October 29, 2010) (hereinafter 2009 OMH Report).
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No. 205
reviewed between the enactment of article 10 through April 2010,
OMH referred 383 cases to the Attorney General for civil
management consideration.4
Although OMH is to make a determination 75 days before
the anticipated release date of each offender (see Mental Hygiene
Law §§ 10.05 [b], [g]), it's not unreasonable to expect that this
extensive caseload has made compliance with that time frame
difficult.
On average, the Attorney General receives a referral
from OMH only about 19 days before the respondent's release date
(see 2009 OMH Report at 11; 2008 OMH Report at 7).
In this case,
consistent with that time frame, the Attorney General had a mere
18 days before Rashid was scheduled to finish his sentence.
This
not only made it difficult for the Attorney General to meet the
goal of filing a petition within 45 days of Rashid's release (see
Mental Hygiene Law § 10.06 [a]), it also increased the likelihood
that the Attorney General would need additional time beyond
Rashid's release date to investigate and reach an appropriate
decision on whether to file an article 10 petition.
Prior to
today, the Attorney General had no reason to believe that there
was a need to hastily file article 10 petitions to stop the clock
from running out before it had an adequate opportunity to conduct
thorough reviews of all the facts and circumstances of each
4
See New York State Office of the Attorney General, 2010
Report on Civil Management for Sex Offenders, at 11, available at
http://www.ag.ny.gov/bureaus/sexual_offender/pdfs/April%202010%20
Yearly%20Report.pdf (accessed October 29, 2010) (hereinafter 2010
OAG Report).
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offender's background when making critical determinations to seek
civil commitments.
After all, article 10 repeatedly advises that
its time frames are advisory and that a failure to meet them will
have no jurisdictional effect on the outcome of the proceedings.
The Legislature anticipated these difficulties and
devised two safety-valve provisions to prevent a person who may
be a dangerous sex offender from being immunized from article 10
review as a result of being released into the community.
Section
10.06 (f) allows the Attorney General to file a securing petition
if it appears that the offender may be released before the case
review team can make its determination and where the Attorney
General believes that public safety requires continued detention.
This procedure was obviously not available to the Attorney
General in this case since the OMH review team completed its
assessment prior to the completion of Rashid's sentence.
Second, subdivision (h) of section 10.06 states that if
a sex offender "was released" from custody after the initial
10.05 (b) notice to OMH and "is therefore at liberty when the
petition is filed," a court is required to order the person back
into custody upon the filing of the petition for the purpose of a
probable cause hearing (id. § 10.06 [h] [emphasis added]).
This
statutory provision expressly contemplates that a petition can be
filed after a respondent has completed a sentence (see People ex
rel. David NN. v Hogan, 53 AD3d 841, 843 [3d Dept 2008], lv
denied 11 NY3d 708 [2008]; Matter of State of New York v Millard,
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No. 205
19 Misc 3d 283, 287-288 [Sup Ct, Broome County, 2008]).
Contrary
to the majority's suggestion, "release" is not just limited to
the completion of a term of imprisonment -- it also encompasses
an individual who has completed a term of parole (see Mental
Hygiene Law § 10.03 [m] [defining the term to include "discharge
from confinement" or "from supervision by the division of
parole"]).
That is what happened here.
When Rashid completed
parole on November 4, 2008, he was released within the meaning of
section 10.03 (m) and was therefore "at liberty when the petition
[wa]s filed" under section 10.06 (h).
Consequently, the Attorney
General permissibly sought Rashid's return to confinement and
Supreme Court granted that relief.
Although the majority reasons
that section 10.06 (h) only applies to individuals who remain on
parole when the petition is filed (see majority op at 19), this
conflicts with the fact that being "at liberty" can arise from a
discharge from parole (see Mental Hygiene Law § 10.06 [h] ["the
respondent was released . . . and is therefore at liberty"]) and
that a release based on the expiration of a term of parole is
treated the same as release from incarceration -- in both
situations, the Act provides a means for returning the person to
State custody.
Thus, the majority's holding that a petition
cannot be filed after a sex offender is released (despite
receiving notice while serving the sentence) unequivocally
contradicts the language of sections 10.03 (m) and 10.06 (h) and
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No. 205
disregards the rule that courts should not read legislative
enactments in a manner that causes them to become superfluous
(see e.g. Amorosi v South Colonie Ind. Cent. School Dist., 9 NY3d
367, 373 [2007]).
The majority's belief that "at liberty" refers only to
individuals who are on parole when the petition is filed is
further at odds with one of the important reasons the Legislature
enacted article 10 -- to reach the most serious sex offenders who
are so dangerous that they cannot be conditionally released
during the term of their sentences and therefore remain
incarcerated for the entire duration of their sentences.
Under
the majority's reading of section 10.06 (h), the commencement of
an article 10 process while a person is still imprisoned, as
opposed to being on parole like Rashid was, and the filing of an
article 10 petition the day after the completion of the maximum
prison sentence would bar the return to custody that is permitted
by subdivision (h), regardless of how dangerous the person may
be.
It is precisely because the criminal justice system can "no
longer exert[] authority" over such a sex offender (majority op
at 17 n 9) that the Legislature authorized the Attorney General
to seek relief in the civil courts without the unduly burdensome
jurisdictional filing requirement that the majority has imposed.
Aside from the implications of Mental Hygiene Law
§ 10.06 (h), I believe that the majority's strict textual
application of "detained" and "currently serving" cannot be
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No. 205
reconciled with the time frame set forth in article 10 for the
civil management trial.
The finder of fact cannot render a
determination that a sex offender has a mental abnormality
requiring civil management unless it also decides that the
respondent is still "detained" under a sentence for a sex crime
(Mental Hygiene Law § 10.07 [d]; see id. § 10.03 [g] [1]).
Similarly, if the fact-finder rules in the State's favor, the
court must then assess whether the respondent is a "dangerous sex
offender requiring confinement" or a "sex offender requiring
strict and intensive supervision" (id. § 10.07 [f]), both of
which require current detention for a sex crime (see id. § 10.03
[e], [r]).
Yet article 10 contemplates that a trial will
generally occur after a sentence has expired:
the statute
provides that the probable cause hearing be conducted
approximately 15 days before an anticipated release date (see id.
§ 10.06 [g]) and the trial is supposed to commence no more than
60 days later (see id. § 10.07 [a]) -- i.e., 45 days after the
offender's scheduled release.
Even if the trial begins before a
respondent's sentence is completed, it is doubtful that the
offender will still be serving the sentence by the time the jury
begins deliberations since article 10 litigation "is often
protracted" and almost half of all cases take more than a year
from the probable cause determination to reach conclusion (2009
OMH Report at 13).
How, then, will it ever be possible for a fact-finder
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No. 205
or a judge to say that a sex offender with a mental abnormality
is "currently serving a sentence for" a sex crime?
In reaching
its holding in this case, the majority does not appear to have
contemplated how its strict textual approach will apply in future
article 10 cases that are timely commenced but cannot be
completed before the respondent's underlying sentence expires.
Ultimately, the majority's decision will either create
interpretative inconsistencies within the Act or result in
different meanings of the same statutory language at various
stages of the proceedings.
In my opinion, since "detained" and "currently serving"
cannot realistically be interpreted as referring to the present
tense throughout the statutory process, the rule for determining
civil management eligibility should be whether the offender was
serving a sentence on the day the case is assigned to an OMH
review team because that is when the offender first receives
notice that an article 10 civil commitment process has been
initiated (see Mental Hygiene Law § 10.05 [e]) and the offender
is first denoted as a "respondent" (see id. § 10.03 [n]).
I am
not alone in this analysis, as other judges contemplating the
meaning of article 10 have similarly held (see People ex rel.
David NN. v Hogan, 53 AD3d at 843-844 [3d Dept 2008] ["The
statutes only require the detained person to be in the agency's
custody and nearing release when the initial notice is given, []
not when the petition is filed . . . . a petition could have been
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No. 205
filed even had [the] petitioner been at liberty" ]).
Thus, an
article 10 petition will be untimely only if the sentence expires
before notice is issued (see generally Joseph II, 15 NY3d at 134135).
I therefore conclude that the article 10 proceeding in
this case was timely commenced against Rashid because he was
under parole supervision at the time he was notified that his
case was being referred to an OMH review team for possible civil
management consideration.
By finding Rashid's petition to be untimely, the
majority necessarily rules that section 10.06 (h) does not mean
what it plainly says; it adopts a new jurisdictional timing rule
that cannot be found elsewhere in article 10; it disregards the
Legislature's decision to create non-mandatory time periods that
do "not affect the validity of the petition" if they are not met
(see Mental Hygiene Law § 10.06 [a]); it penalizes the Attorney
General for undertaking the obligation to consider a case within
30 days; and it fails to recognize that article 10 court
proceedings will generally occur after a criminal sentence is
completed.
Broad ramifications may flow from this decision --
article 10 court proceedings have been commenced against over 300
sex offenders (see 2010 OAG Report at 14) and we have no
information about how many of those respondents were serving
their sentences when the petitions were filed.
Based on the
plain language of section 10.06 (h), it was reasonable for the
Attorney General to believe -- not only in this case but in
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No. 205
others as well -- that completion of parole by a person who had
been living in the community would not be an insurmountable
impediment to the filing of a petition providing that the notice
to the respondent occurred before that person completed the
sentence.
For all of these reasons, I would hold that the
petition was timely filed because Rashid was under parole
supervision when he was informed that his case would be subject
to article 10 review procedures.
IV
Because I have concluded that Rashid was "detained" as
defined by Mental Hygiene Law § 10.03 (g) (1) when the article 10
process began, it is also necessary for me to consider whether
that detention was for a sex offense.
Penal Law § 70.30 is the only New York statute
supplying the rules for how to calculate multiple terms of
imprisonment.
Under subdivision (1) (b), if two indeterminate
prison terms run consecutively, the minimums are added together
to produce the new minimum and the maximums are added to produce
the new maximum.
Because Rashid was serving 8 to 16 years for
the 1988 sex offenses when he committed the 2000 robberies and
received a new 2 to 4-year sentence, those terms had to run
consecutively, even though the sentencing court in the more
recent proceeding did not formally make that pronouncement (see
Penal Law § 70.25 [2-a]; People ex rel. Gill v Greene, 12 NY3d 1,
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- 23 6 [2009]).
No. 205
Thus, Rashid's total sentence was 10 to 20 years,
which meant that the sentence (including parole) would not be
fully completed until November 2008.
The majority concludes that Penal Law § 70.30 (1) (b)
does not apply to the determination of whether a person was
serving a sentence for a sex offense for article 10 purposes.
It
reasons that the statute is irrelevant because article 10 has its
own rule for examining whether a sentence for a sex crime is
still being served and therefore concludes that Rashid finished
his sex offense sentence in 2004, rendering him ineligible under
article 10.
I disagree.
Article 10 states that a person must be "currently
serving" a sentence for a sex offense (see Mental Hygiene Law
§ 10.03 [g] [1]), but it does not contain any provision that
directs how to make the "currently serving" determination when an
offender is subject to multiple terms of imprisonment, as Rashid
was.
Nor does article 10 preclude a court from considering the
otherwise generally applicable provisions of Penal Law article
70.
In the absence of such a restriction, the default
calculation rule of Penal Law § 70.30 (1) (b) should govern.
Our decision in People v Buss (11 NY3d 553 [2008]) -which dealt with the Sex Offender Registration Act (SORA) -supports this conclusion.
In Buss, the defendant had committed a
sex offense in 1983 (before SORA was enacted) and was sentenced
to 2 to 6 years.
While on parole in 1987, he tried to murder a
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No. 205
woman and was charged with attempted murder and first-degree rape
and sodomy, among other offenses.
He pleaded guilty to attempted
murder in satisfaction of the indictment and received a
consecutive sentence of 10 to 20 years (producing an aggregate of
12 to 26 years).
The issue was whether the new sentence had to
be added to the earlier one for the purpose of SORA eligibility,
meaning the defendant was still serving a sentence for the 1983
sex offense when SORA was enacted in 1996.
We held that the calculation rule of Penal Law § 70.30
(1) (b) was applicable and that the defendant was therefore
subject to SORA.
Our analysis was straightforward:
"the Penal
Law provides for a method whereby two or more sentences are made
into one" and "the result . . . is a single, indeterminate
sentence" (11 NY3d at 557) whenever a person is subject to more
than one term of imprisonment.
We observed that one of the
primary goals of SORA was "to protect the public from the danger
of recidivism posed by sex offenders" and explained that the
advancement of this legislative purpose was "best served by
recognizing that a person who is returned to prison while on
parole for a sex offense continues to be subject to his sex
offense sentence for the duration of the aggregate sentence"
since "[c]ommon sense and experience dictate that a defendant's
conduct while on parole is a reliable predictor of the risk he
poses to society" (id. at 558 [citations and internal quotation
marks omitted]).
Hence, we held that section 70.30 applies to
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No. 205
"the question of whether a prisoner who has been given multiple
sentences is subject to all his sentences for the duration of his
term of imprisonment" (id. at 557).
Under a comparable analysis, I believe that the
reasoning of Buss applies with equal force to article 10
proceedings.
Like SORA, article 10 was designed to address
public safety concerns (see Mental Hygiene Law § 10.01 [d]) -the Legislature declared that "recidivistic sex offenders pose a
danger to society" (id. § 10.01 [a]).
As in Buss, advancement of
this legislative objective is best served by recognizing that sex
offenders "continue[] to be subject to the [the] sex offense
sentence for the duration of the aggregate sentence" (Buss, 11
NY3d at 558).
Nothing in article 10 convinces me that the
Legislature intended to create a different and more favorable
sentence calculation rule for dangerous sexual predators with
mental abnormalities than for other categories of sex offenders
who are required to register under SORA.
If that was what the
Legislature wanted to accomplish, it would have said so in
article 10.
Furthermore, contrary to the majority's conclusion (see
majority op at 23-25), the definition of "related offenses" does
not prevent the rationale of Buss from pertaining to this
situation.
To be sure, that phrase expands the application of
the civil management act to individuals who are serving time for
non-sex offenses (see Mental Hygiene Law § 10.03 [l]).
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But
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No. 205
incarceration for a "related offense" is irrelevant to assessing
whether a person is still serving a sentence for a "sex offense"
-- a different and independent category that defines eligibility
for civil management.
The only way to make the latter
determination is to refer to Penal Law § 70.30 (1) (b).
Tellingly, the majority never says that Rashid was not, in fact,
on parole for the 1988 sex offenses when the article 10 process
began.
Certainly he was.
I would therefore hold that Rashid was
still serving his sentence for the 1988 sex offenses when the
article 10 process began, which qualified him as a "detained sex
offender" within the meaning of Mental Hygiene Law § 10.03 (g)
(1).5
V
As a final point, we held in Harkavy I that the State
could not apply article 9 of the Mental Hygiene Law to sex
offenders who were serving a sentence when that process began
(see 7 NY3d at 613-614).
But we also explained that article 9
could be used in situations where sentences had expired (id. at
614).
Thus, although the majority now concludes that article 10
cannot be used against Rashid because his sentence was completed
before the petition was filed, nothing prevents the State from
seeking to have him involuntarily hospitalized under Mental
Hygiene Law article 9 as a mentally ill person who is in need of
5
In light of this conclusion, it is unnecessary for me to
address whether the 2000 robberies were "related offenses" that
would provide an independent basis for an article 10 petition.
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No. 205
treatment and is a danger to society (see Mental Hygiene Law
§ 9.27).
If Rashid is as impaired and dangerous as the State has
alleged, the ironic result here may be commitment proceedings
under article 9 in which Rashid will not be entitled to many of
the significant procedural and substantive protections that apply
in article 10 cases.
* * *
Based on my reading of the civil management act and our
decision in Buss (11 NY3d 553 [2008]), I would reverse the order
of the Appellate Division and allow the article 10 trial to
proceed.
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State of New York v Mustafa Rashid
No. 205
SMITH, J.(dissenting):
This case, like People ex rel. Joseph II. v
Superintendent of Southport Correctional Facility (15 NY3d 126
[2010]), presents narrow issues of statutory construction, not
the substantive question of how far Mental Hygiene Law article 10
goes, or constitutionally may go, in permitting what amounts to
preventive detention for dangerous sex offenders.
I join Judge
Graffeo's dissent because I believe she has correctly analyzed
the issues that are before us.
In doing so, I do not necessarily
imply that I think Article 10 does, or constitutionally may,
permit the detention of Rashid or other prisoners similarly
situated.
Neither of the main opinions in this case, as I read
them, addresses that issue.
*
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Order
Judge
Judge
which
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affirmed, without costs. Opinion by Judge Read. Chief
Lippman and Judges Ciparick, Pigott and Jones concur.
Graffeo dissents and votes to reverse in an opinion in
Judge Smith concurs in a separate opinion.
Decided November 23, 2010
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