State of New York v Robert V.

[*1] State of New York v Robert V. 2011 NY Slip Op 51819(U) Decided on September 29, 2011 Supreme Court, Bronx County Duffy, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 29, 2011
Supreme Court, Bronx County

The State of New York, Petitioner,

against

Robert V., Respondent.



251233-2010

Colleen D. Duffy, J.

On July 1, 2011, Respondent filed a motion seeking to reargue his motion to

dismiss the petition in this case on the grounds that Section 10.07(c) of the Mental

Hygiene Law ("MHL") is unconstitutional, which the Court had denied on April 11,

2011.[FN1] [*2]

On August 1, 2011, Petitioner Attorney General of the State of New York filed an opposition to Respondent's motion to reargue.

In support of his motion to reargue, Respondent contends that a decision by the United States District Court for the Southern District of New York ("Southern District"), in Mental Hygiene Legal Service v. Cuomo, No. 07 Civ. 2935, 2011 WL 1344522, 2011 U.S. Dist. Lexis 40434 (March 29, 2011)(hereinafter "MHLS II"),[FN2] which was not considered by this Court in its April Decision, supports a finding that MHL § 10.07(c), which authorizes sex offender civil management for persons not previously convicted of a sex offense, is excessive in relation to the Legislature's stated goals (Affirmation in Support of Motion to Reargue, at ¶ 8). Respondent requests that this Court reconsider the factor — whether the statutory provision appears excessive in relation to stated goals of the legislation — consistent with the holding in MHLS II in the context of whether MHL § 10.07(c) violates the Ex Post Facto Clause.

According to Respondent, upon the Court's consideration of MHLS II, it should find that MHL § 10.07(c) is so punitive as to negate the Legislature's civil intent in enacting it.

For the reasons set forth below, Respondent's motion to reargue is granted. Nonetheless, although the Court now has considered the Southern District's decision in MHLS II with respect to Respondent's contentions in this case, for all the reasons discussed below as well as in the April Decision, the Court still finds that MHL §10.07(c) does not violate the Ex Post Facto Clause of the United States Constitution. Thus, Respondent's motion to dismiss upon re-argument is denied.

I.RESPONDENT'S MOTION TO REARGUE IS GRANTED

A motion to reargue pursuant to CPLR § 2221(d)(2) must be "based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion. . . ." CPLR § 2221(d)(2); see also Andrea v. E.I. DuPont de Nemours Co., 289 AD2d 1039, 1040-1041 (4th Dept. 2001), app. denied, 97 NY2d 609 (2002). It also must be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry. CPLR § 2221(2)(d).

In this case, Respondent's motion to reargue is timely, as it was filed before service of notice of entry of the April Decision. Webb v. Smith, 2010 NY Slip Op. 51814U, *5, n3, 29 Misc 3d 1213A (Sup. Ct., New York Co. 2010) (where movant not served with notice of entry, thirty day clock did not start); People v. Davis, 2010 NY Slip Op. 50919U, *6, 27 Misc 3d 1226A (Sup. Ct., Bronx Co. 2010) (thirty day clock did not start where defendant not served with notice of entry). [*3]

Respondent's contention that reargument should be granted because the Court overlooked the decision in MHLS II, a recent decision by a federal district court relevant to the issues on Respondent's motion to dismiss, has merit. Although the decision in MHLS II does not address whether MHL § 10.07(c) violates the Ex Post Facto Clause, it does examine the constitutionality of the clear and convincing standard of proof set forth in MHL § 10.07(c) for determining whether a prior non-sex crime was sexually motivated in the context of due process. The analysis undertaken by the Southern District on that issue is relevant to this Court's determination of Respondent's motion in this action.

Indeed, the Southern District's earlier decision on a preliminary injunction that had been filed in that action, Mental Hygiene Legal Service v. Spitzer, No. 07 Civ. 2935, 2007 WL 4115936, 2007 U.S. Dist. Lexis 85163 (S.D.NY 2007), aff'd, 2009 WL 57945 (2009)(hereinafter "MHLS I"), already had been considered by this Court in its analysis of Respondent's motion.[FN3]

MHLS II preceded this Court's April Decision in this case by 13 days and was not reported until after the April Decision already had been issued. Had MHLS II been reported prior to the time the Court issued its April Decision,[FN4] it would have been considered by this Court, just as the Court had considered MHLS I, in making its determination.

For these reasons, Respondent's motion to reargue is timely made and is based upon matters of law overlooked by this Court in determining the prior motion. Therefore, the Court grants the motion to reargue.

II.THE COURT STILL FINDS THAT MHL § 10.07(c) DOES

NOT VIOLATE THE EX POST FACTO CLAUSE

Upon consideration of the decision in MHLS II in the context of Respondent's motion, as set forth below, the Court still finds that the clear and convincing burden of proof with respect to "sexual motivation" as set forth in MHL § 10.07(c) does not violate the Ex Post Facto Clause of the United States Constitution.

As an initial matter, the determination of a sister court on the federal level is not binding on this Court. People v. Kin Kan, 78 NY2d 54, 60 (1991)(interpretation of a federal constitutional question by lower federal courts may serve as useful and persuasive authority on New York courts but is not binding). On the other hand, a determination of a state appellate court is binding. Mountain View Coach Lines, Inc. v. [*4]Storms, 102 AD2d 663, 664 (2nd Dept 1984) (New York trial courts are bound to follow the decisions of the United States Supreme Court, the New York Court of Appeals, and the Appellate Division within the trial court's own judicial department); People v. Turner, 5 NY3d 476, 482 (2005)(where there is no binding precedent from the United States Supreme Court, New York Court of Appeals or the Appellate Division in a court's own judicial department, the decisions of the Appellate Divisions of other judicial departments are binding).

Here, the determination of the Southern District in MHLS II that the requirement of MHL § 10.07(c) that the clear and convincing standard of proof to determine whether a prior felony was "sexually motivated" violates a respondent's due process rights is in direct contrast to the determination of that same issue by the Fourth Department in State v. Farnsworth, 75 AD3d 14 (4th Dept.), app. dismissed, 15 NY3d 848 (2010).

Moreover, even if this Court were not bound by the constitutional analysis in Farnsworth, that portion of the decision in MHLS II pertaining to the clear and convincing standard of proof set forth in 10.07(c) does not persuade this Court that it should reverse its April Decision that 10.07(c) does not violate the Ex Post Facto Clause.

A.Binding New York Precedent Contravenes the

Determination in MHLS II and Holds that

MHL § 10.07(c) is Constitutional

The decision in MHLS II that the clear and convincing standard of proof in MHL § 10.07(c) for determining whether a prior felony was "sexually motivated" violates a respondent's due process is not binding upon this Court (see Kin Kan at 60), and directly contradicts the holding of the Fourth Department in State v. Farnsworth, a decision which is binding on this Court. Mountain View Coach Lines, Inc. v Storms, 102 AD2d at 664; People v. Turner, 5 NY3d at 482.

In MHLS II, the Southern District's analysis with respect to MHL § 10.07(c) was focused on whether the clear and convincing standard of proof for sexual motivation meets due process requirements. 2011 WL 1344522, *16-17. This same analysis was undertaken by the Fourth Department in State v. Farnsworth, a decision which was considered and discussed by this Court in its April Decision.[FN5]

In Farnsworth, the Fourth Department found that the clear and convincing standard of proof as to whether a crime committed prior to the enactment of The Sex Offender Management and Treatment Act ("SOMTA"), that was not a sex offense, was "sexually motivated" meets constitutional due process under both state and federal law. 75 AD3d at 27-29. That determination is in direct contrast to the conclusion of the Southern District in MHLS II. See 2011 WL 1344522, *17. [*5]

Both the MHLS II court and the Farnsworth court undertook the requisite due process analysis articulated by the Supreme Court in Mathews v. Eldridge, 424 U.S. 319, 335 (1976) with respect to the three factors required to be considered in identifying the specific dictates of due process in a particular situation: (1) examining the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute safeguards; and (3) the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Mathews at 335.

Notably, the Farnsworth court's analysis of the Mathews factors closely mirrored the initial analysis conducted by the federal court in MHLS I in denying a preliminary injunction on this issue, finding that Mental Hygiene Legal Service had not demonstrated a likelihood of success on the merits.[FN6] MHLS I, 2007 WL 4115936, *21-26.

Like the federal court in MHLS I, the Farnsworth court held that the first Mathews factor - significance of the personal interests affected - did not mandate application of the reasonable doubt standard, reasoning that the Supreme Court, in Addington v. Texas, 441 U.S. 418 (1979), had established that while those interests are fundamental in nature, they are subordinate to the interests of protecting society from those deemed mentally ill and dangerous based upon clear and convincing evidence. 75 AD3d at 27.With respect to the second Mathews factor, the Farnsworth court held that the risk of erroneous deprivation is low considering that each of the individuals who would be subject to the standard of proof set forth in MHL § 10.07(c) already have been found guilty of a serious felony and the only remaining issue is whether the crime was sexually motivated.[FN7] Id. at 27-28.

As for the last Mathews factor, the Farnsworth court concluded that while the application of the higher standard would not seriously impede the State's goal of committing sex offenders who pose a threat to society, New York's failure to provide for this higher standard did not violate the due process rights of the individuals involved. Id. at 28.

This Court is bound by Farnsworth, not MHLS II, and thus, to the extent that the due process analysis in Farnsworth is applicable to this Court's analysis of MHL § [*6]10.07(c) in the context of the Ex Post Facto Clause, the Court's determination that MHL § 10.07(c) meets constitutional muster remains unchanged.

B.Even If Farnsworth Were Not Binding Precedent,

MHLS II Does Not Persuade this Court That MHL § 10.07(c)

Violates the Ex Post Facto Clause

This Court's determination in its April Decision that MHL § 10.07(c) does not violate the Ex Post Facto Clause was based upon the two step analysis formulated by the Supreme Court as the framework to evaluate an ex post facto claim. Smith v. Doe, 538 U.S. at 97. For the reasons set forth below, even if Farnsworth were not binding precedent with respect to an Ex Post Facto analysis, this Court is unpersuaded by the analysis of the MHLS II court that the clear and convincing standard of proof set forth in MHL § 10.07(c) to determine whether a prior felony was sexually motivated violates the Constitution either via due process or the Ex Post Facto Clause.

In its April Decision, this Court held that MHL § 10.07(c) satisfied the first prong of the Smith v. Doe analysis set forth by the Supreme Court, in that the Legislature intended the statute to be civil, rather than penal, in nature. 2011 NY Slip Op. 50552(U), *10-11.

Noting the Legislature's purpose, the way in which the law was codified in the Mental Hygiene Law, rather than the Penal Law, and the outcome of the proceeding - civil management and sex offender treatment rather than prison - this Court determined that the purpose of that provision in the statute was civil rather than penal. Id.

The Court's consideration of MHLS II does not change its view that, pursuant to the Smith v. Doe first prong analysis, MHL § 10.07(c) was intended by the Legislature to be civil, rather than penal, in nature.

With respect to the second prong of the Smith v. Doe analysis — whether the statute is so punitive, either in purpose or effect, as to negate the intended civil purpose, the decision by the MHLS II court that MHL § 10.07(c) violates due process weighs into an analysis of only one of the seven factors that the Supreme Court has said should guide this second step of the inquiry whether the statutory provision appears excessive in relation to the alternative purpose assigned.[FN8] Smith v. Doe, 538 U.S. at 97; Mendoza-Martinez, 372 U.S. 144, 168-69 (1963).

In its April Decision, this Court concluded that the State's legitimate purpose in enacting MHL § 10.07(c) was to define the type of individual who may be subject to civil management, and that attempting to include persons who committed crimes prior to the [*7]law's effective date is a rational, not excessive, means to accomplish this end.

The Court is unpersuaded by Respondent's contention that the holding in MHLS II with respect to MHL § 10.07(c) shows that the "statute's authorization of sex offender' commitment for persons never convicted of sex offenses" is excessive in relation to the State's stated goals. Affirmation of Charles Hargreaves, Esq., in Supp. of Motion to Reargue, dated July 1, 2011, ¶ 8.

As an initial matter, Respondent's contention that the statute authorizes " sex offender' commitment for persons never convicted of sex offenses," ignores the goals and a key element of the statutory scheme of Article 10 - treatment and strict and intensive supervision. Pursuant to its own terms, Article 10, which includes both civil and criminal aspects, was created to manage sex offenders through treatment and supervision. Civil confinement is limited to "extreme" cases for those individuals who are found to be dangerous sex offenders as defined in the statute. MHL §§ 10.01(b), 10.07(f).

Additionally, Respondent's contention that the clear and convincing standard of proof to determine whether a prior crime was sexually motivated is excessive in relation to the state's goals ignores the non-penal nature of the civil management scheme. While the comprehensive approach which the Legislature took to managing sex offenders includes penal aspects, the issue in this case relates to a part of the civil management scheme.[FN9]

The civil aspects of Article 10 are numerous and varied and are intended to cover many different types of sex offender cases. MHL § 10.01(a) - (f). Once a person is determined to be subject to civil management, such management can take the form of treatment programs aimed at reducing recidivism and treating offenders, numerous types of supervision within the community, and, only in the case of the worst offenders, civil confinement in an institutional setting for some period of time, at which time the community is protected and the offender receives treatment. See MHL §§10.07(f), 10.10(a), 10.10(b), 10.10(e), 10.11(a)(1), 10.11(b)(1), and 10.11(2).

The Legislature's determination to include those persons who were convicted of a non-sex offenses, which were sexually motivated, at a time before SOMTA was enacted, is entirely legitimate and use of the standard of clear and convincing evidence, in this civil context, to determine whether such non-sex crime was sexually motivated, is not excessive. Farnsworth, 75 AD3d at 27-29.

The risk of an erroneous deprivation of liberty is low for civil commitment cases where the only issue to be determined regarding the prior non-sex crime is whether it was sexually motivated. The persons covered by MHL § 10.07(c) already have been found to have committed a serious felony, using a beyond a reasonable doubt standard required in all criminal case, an important point noted by both the MHLS I and Farnsworth courts, and ignored by the MHLS II court. MHLS I, 2007 WL 4115936, *24; Farnsworth, 75 AD3d 25. [*8]

In the Article 10 civil management proceeding, the question to be determined using the clear and convincing standard is quite narrow - whether that crime was sexually motivated.

"[T]here is no chance of error about the perpetrator's identity, or about whether the basic underlying crime was in fact committed: those facts have already been found by a jury beyond a reasonable doubt. In many cases, the sexual aspect of the case may be apparent, or, conversely, clearly absent."

MHLS I, 2007 WL 4115936, *24. The narrowness of the question to be determined by clear and convincing evidence - whether the crime was sexually motivated - reduces the risk of an erroneous deprivation of liberty.

Other than making a finding without explanation that the risk of erroneous deprivation in this context is high, the MHLS II court did not address the second factor in the Mathews due process analysis. 2011 WL 1344522, *16. The court focused instead upon the liberty interests that are affected by a finding of mental abnormality versus a finding of mental illness. The determination by MHLS II that the consequences of a finding of mental abnormality are more severe than a finding of mental illness does not make the risk of error greater.The MHLS II court seems to conclude that if the stakes are higher, so is the risk. That is not analytically consistent with Mathews, MHLS I or Farnsworth.

In contrast, the MHLS I court determined, in light of the Supreme Court's holding in Addington (a person may be committed based only upon a finding of mental illness and dangerousness by clear and convincing evidence), that it would be "somewhat anomalous to hold that a state may not civilly commit or subject to an extended treatment regime an individual who has already been convicted of a serious crime based on clear and convincing evidence that he is mentally abnormal and dangerous, along with the additional finding that his previous crime was committed with a sexual motivation." 2007 WL 4115936, at *26.

For the reasons set forth above, this Court denies Respondent's motion on reargument to dismiss the petition against Respondent. The Court is bound by Farnsworth and, even if it were not, the Court is unpersuaded that the decision by the Southern District in MHLS II - that the clear and convincing standard of proof to determine whether a prior non-sex crime was sexually motivated violates due process - changes the analysis applied by this Court.

III.CONCLUSION

For the reasons set forth above, the motion to reargue is granted. Upon reconsideration, Respondent's motion to dismiss again is denied.

The Court considered the following in deciding the motion: Notice of Motion and Memorandum of Law in Support of Motion, dated February 7, 2011, and exhibits thereto; Affirmation of Russell T. Seeman, Esq., Assistant Attorney General, dated March 1, 2011; and Reply Memorandum of Law, dated March 28, 2011; Notice of Motion to Reargue and Affirmation of Charles Hargreaves, Esq., in Support of Motion to Reargue, dated July 1, 2011; Affirmation of Russell T. Seeman, Esq., in Opposition to Respondent's Motion to Reargue, dated August 1, 2011; and Reply Affirmation of Charles Hargreaves, Esq., in Support of Motion to Reargue, filed August 5, 2011. [*9]

This constitutes the Decision and Order of this Court.

Dated: Bronx, New York

September 29, 2011

E N T E R:

_________________________

COLLEEN D. DUFFY

Justice of the Supreme Court

Distribution:

Charles Hargreaves, Esq.

Mental Hygiene Legal Service

Marvin Bernstein, Director

41 Madison Avenue, 26th Floor

New York, New York 10010

Russell T. Seeman, Esq.

Eric T. Schneiderman

Attorney General of the State of New York

Westchester Regional Office

101 East Post Road

White Plains, New York 10601 Footnotes

Footnote 1: See State v. Robert V., 2011 NY Slip Op. 50552(U) (hereafter "April Decision"), incorporated herein as if set forth in full. The procedural history of this case, as well as the legislative intent behind Article 10, are discussed at length in the Court's April Decision wherein the Court rejected Respondent's contention that MHL § 10.07(c) (and the definitional paragraphs relevant to that section) serve to "retroactively transform" a non-sex crime into a new "sexually motivated felony" and that it increases the punishment for the prior crime.

In its April Decision, the Court determined that MHL § 10.07(c) of Article 10 does not violate the Ex Post Facto Clause of the United States Constitution, in that the proviso meets the two-step inquiry, set forth by the United States Supreme Court in Smith v. Doe, 538 U.S. 84, 97 (2003), for examining a challenged statute on the grounds that it violates the Ex Post Facto Clause.

With respect to the first step, which requires an examination of whether the Legislature's intent with respect to the provisions at issue was to create civil or criminal provisions, the Court had determined that the Legislature's intent was civil in nature. 2011 NY Slip Op. 50552(U), *10-11, citing Smith v. Doe, 538 U.S. at 92; Kansas v. Hendricks, 521 U.S. 346, 361 (1997).

As to the second step, which requires the Court to determine whether the statutory provisions at issue, first determined to be civil in nature, were not so punitive, either in purpose or in effect, as to negate the State's intent that it be a civil proceeding, the Court found that the provisions were not. 2011 NY Slip Op. 50552(U), *11-16, citing Hendricks, 521 U.S. at 361, Smith, 538 U.S. at 92.

Footnote 2: The Southern District held that Article 10's proviso that sexual motivation be determined by "clear and convincing" evidence violates the United States Constitution and that due process requires that sexual motivation be proven "beyond a reasonable doubt." MHLS II, 2011 WL 1344522, *17.

Footnote 3: In its earlier decision in MHLS I, the Southern District had denied a preliminary injunction seeking a stay of the implementation of MHL § 10.07(c), holding that the plaintiffs had not demonstrated a likelihood of success on the merits. 2007 WL 4115936, *26. That decision had been issued by the Honorable Gerald Lynch, then United States District Judge for the Southern District (now Judge on the United States Court of Appeals for the Second Circuit). The case subsequently was presided over by the Honorable Deborah Batts, United States District Judge for the Southern District, who, in her decision in MHLS II adopted much of the analyses articulated in MHLS I but declined to adopt the analysis of MHLS I with respect to the constitutionality of the clear and convincing standard of proof set forth in MHL § 10.07(c).

Footnote 4: The decision was available on Westlaw on April 11, 2011, and on Lexis on April 15, 2011.

Footnote 5: The Fourth Department also analyzed whether MHL § 10.07(c) violated a respondent's constitutional right to equal protection, concluding that it did not. The court held that a strict scrutiny analysis was required since, although the respondent did not belong to a suspect class, a fundamental right - liberty - was implicated, but that the State also had a compelling interest in committing and treating those who are mentally ill and dangerous to themselves or others, which MHL § 10.07(c) was narrowly tailored to serve. 75 AD3d 30-31.

Footnote 6: In contrast, while the MHLS II court agreed with the MHLS I court that the individual interest at stake was of the "highest level" and includes both physical liberty and the stigma of being branded a sex offender, it disagreed as to the risk of erroneous deprivation, finding that it was high. 2011 WL 1344522, *16. The court failed to explain that determination. Instead, the court pointed to the potential consequences of a finding of mental abnormality and said that civil commitment as a sex offender subjects a person to impositions of personal liberty not present in the more traditional civil commitment circumstances. Id. The MHLS II court also linked the legislative intent behind the criminal provisions of SOMTA with the legislative intent behind MHL § 10.07(c). Id. at *17. As set forth in Section II.B, the Court finds that the analysis in MHLS II, which reaches a conclusion as to the constitutionality of MHL § 10.07(c) contrary to that reached by either the Farnsworth court or the federal court in MHLS I, is not persuasive.

Footnote 7: As noted in footnote 7, supra, although the MHLS II court found risk of erroneous deprivation to be high, it did not explain why it did so. See MHLS II, 2011 WL 1344522, *16.

Footnote 8: The other six factors identified by the Supreme Court which this Court considered with respect to this second prong are: (1) whether the sanction involves an affirmative disability or restraint; (2) whether it has historically been regarded as a punishment; (3) whether it comes into play only upon a finding of scienter; (4) whether its operation will promote traditional aims of punishment-retribution and deterrence; (5) whether the behavior to which it applies is already a crime; (6) whether an alternative purpose to which it may rationally be connected is assignable for it. See 2011 NY Slip Op 50552(U), at 10-16, citing Smith v. Doe, 538 U.S. at 97, and Mendoza-Martinez, 372 U.S. 144, 168-69 (1963).

As noted above, the MHLS II decision pertains only to the seventh factor whether the provision at issue appears excessive in relation to the alternative purpose assigned.

Footnote 9: The penal aspects of the plan include new penalties for sexual crimes, and a new crime itself, all of which are codified in the Penal Law. PL § 130.91.