Matter of Providence v Annucci

[*1] Matter of Providence v Annucci 2016 NY Slip Op 26472 Decided on August 18, 2016 Supreme Court, Wyoming County Mohun, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on August 18, 2016
Supreme Court, Wyoming County

In the Matter of the Application of Joel Providence, Petitioner,

against

Anthony Annucci, Acting Commissioner, New York State Department of Corrections and Community Supervision, Respondent.



21,724-16



For the Petitioner

WYOMING COUNTY-ATTICA LEGAL AID BUREAU, INC.

Norman P. Effman, Director

by Leah Rene Nowotarski

Staff Attorney

For the Respondent

ERIC T. SCHNEIDERMAN, Attorney General

by Darren Longo

Assistant Attorney General
Michael M. Mohun, J.

By petition pursuant to Article 78 of the CPLR verified on April 1, 2016, Joel Providence seeks review of the denial of his inmate grievance which challenged the respondent's decision to require him to participate in the Sex Offender Counseling and Treatment Program [SOCTP]. Petitioner is represented by counsel assigned by the order to show cause dated May 9, 2016. Respondent requests that the petition be denied or dismissed upon the answer dated June 10, 2016. Petitioner's counsel has submitted a reply to the answer dated June 28, 2016.

The petitioner, contending that he was not convicted of a "sex offense," claims that he should not have been assigned to participate in the SOCTP. It appears that the petitioner's conviction for Kidnapping 2nd does, in fact, fulfill the definition of a "sex offense" stated in [*2]Correction Law §168-a(2)(a) — because his victim was "less than seventeen years old and the offender is not the parent of the victim" (see, Respondent's Answer, Exhibit A, page 3, 9/17/15 email from Diana Bourgeois, Offender Rehabilitation Counselor, to Alyson Romesser). As petitioner's counsel correctly points out, however, a somewhat different definition of "sex offense" is given in Mental Hygiene Law §10.03(p). That section — which the eligibility guidelines for the SOCTP reference — does not include Kidnapping 2nd as a "sex offense" unless the defendant is convicted of the crime as a sexually motivated felony pursuant to Penal Law §130.91. Thus, although the petitioner's crime is a "sex offense" under the Article 6-C of the Correction Law, it is not a "sex offense" under the definition given in Article 10 of the Mental Hygiene Law. This fact did not preclude the respondent from assigning the petitioner to SOCTP pursuant to the regulations, however.

The respondent's eligibility guidelines for the SOCTP contain a list of eleven "circumstances" which are to be used to determine placement in the program. If one or more of the "circumstances" apply to an inmate, the inmate will be required to take the SOCTP. "Circumstance" number one reads as follows:

The offender is serving a sentence for a sex offense, attempted sex offense or conspiracy to commit a sex offense as defined by Section 10.03 (p) of the NYS Mental Hygiene Law including a sentence for a specified offense as a sexually motivated felony under Penal Law Section 130.91 (ATTACHMENT 1 — SOMPTA — Article 10 — Sexual Offenses) or any Article 130 sex offense (ATTACHMENT 2) [emphasis added]

Attachment 2 is entitled "New York State Sex Offender Registry Registerable Offenses," and lists not only offenses found in Article 130 of the Penal Law, but also various other offenses which require the offender to register as a sex offender pursuant to Article 6-C of the Correction Law. Kidnapping 2nd is among the crimes listed in Attachment 2, with a footnote stating that it is "[a] registerable offense only if the victim is less than seventeen years old and the offender is not the parent of the victim."

Although the reference to "any Article 130 sex offense" in the text of "circumstance" number one suggests that only offenses found in Penal Law Article 130 are intended to be included, this incorrect impression is immediately dispelled by an examination of Attachment 2. The actual basis for the list in Attachment 2 is clearly Correction Law §168-a(2) and (3), not Penal Law Article 130. Furthermore, it is not unreasonable for the respondent to use the definition of "sex offense" found in the Correction Law in producing a list of offenses which will automatically require placement of an inmate in the SOCTP. With the inclusion of Attachment 2, the respondent has made it clear that the intention of the regulation is to automatically assign to SOCTP all inmates who have been convicted of a "sex offense" as that term is defined either by Mental Hygiene Law §10.03(p) or by Correction Law §168-a(2) and (3).

Since the petitioner's conviction is a registerable "sex offense" listed on Attachment 2 (as noted above, according to Ms. Bourgeois, the petitioner's victim was less than seventeen years old and was not the petitioner's child), he was properly assigned to SOCTP. The petitioner has not shown that the determination was an abuse of discretion or contrary to the applicable regulations. The petitioner's grievance was properly denied.

NOW, THEREFORE, it is hereby

ORDERED that the petition is dismissed.

August 18, 2016