Opinion
3713-2014 and 3714-2014
09-16-2019
The PEOPLE of the State of New York, Plaintiff, v. STEVEN W., Defendant.
For Defendant: Andrea Yacka-Bible of the Legal Aid Society For the People: Assistant District Attorney Jill Starishevsky
For Defendant: Andrea Yacka-Bible of the Legal Aid Society
For the People: Assistant District Attorney Jill Starishevsky
Miriam R. Best, J.
As defendant is the subject of an Article 10 petition for civil management that is referenced in this decision, the court has redacted his last name and used only his last initial.
Defendant moves for an order dismissing without prejudice the pending risk level hearing pursuant to the Sex Offender Registration Act (SORA), or in the alternative for an order to stay, adjourn, or hold open the pending SORA hearing until within 30 days of the date when he is scheduled to be released into the community (Def Notice of Motion p 1). For the reasons that follow, defendant's motion is denied in its entirety.
Background
In December 2014, defendant pleaded guilty to two counts of Sexual Abuse in the First Degree (PL § 130.65[3] ) and was sentenced to concurrent determinate terms of four years' imprisonment followed by 10 years' post-release supervision (Def Aff ¶ 3). The maximum expiration date of defendant's prison sentence was July 11, 2018 (id ¶ 4). On April 11, 2018, the Board of Examiners of Sex Offenders generated a Risk Assessment Instrument (RAI) and case summary regarding defendant. A SORA hearing was originally scheduled for June 8, 2018, before the Honorable Raymond Bruce. On July 6, 2018, however, the Attorney General filed a petition for civil management pursuant to Mental Hygiene Law Article 10. On November 27, 2018 and December 21, 2018, this court held a hearing pursuant to MHL 10.06(g) to determine whether there was probable cause to believe that defendant is a sex offender requiring civil management. On May 2, 2019, this court issued an oral decision finding that such probable cause does exist. That same day, this court issued an order pursuant to MHL § 10.06(k), ordering that upon his release from custody of the New York State Department of Corrections and Community Supervision (DOCCS), defendant be committed to a secure treatment facility designated by the Commissioner of the New York State Office of Mental Health (OMH) and further ordering that defendant may not be released from custody pending the outcome of the Article 10 proceeding (order attached as Exhibit A). The Article 10 proceeding is still pending and a trial date has not yet been selected.
The total risk factor score in the RAI is 135, resulting in a Risk Level 3 (Def Exh B).
A written decision, dated June 12, 2019, was distributed to the parties on June 17, 2019 via email and USPS mail. In the decision and order, defendant is referred to as Respondent.
Defendant's SORA hearing was adjourned a number of times on consent. Shortly after resolution of the Article 10 probable cause hearing, defendant filed the instant motion.
The Parties' Contentions
Defendant argues that the "SORA statute's procedures are organized around the release of a sex offender from state custody into the community for the purpose of community notification" (Def Aff ¶ 12). Therefore, defendant claims, when there is no release date, conducting a risk level hearing is "premature, and violates the plain meaning of SORA" (id. ). In support of this claim, defendant notes that the definition of "hospital" found in Correction Law § 168-a(6)(b) was amended in 2007 to include "a secure treatment facility as defined in section 10.03 of the mental hygiene law and applies to persons committed to such facility by an order made pursuant to article ten of the mental hygiene law" (Def Mem of Law p 4). Accordingly, this "2007 amendment to the SORA statute thus reiterated the application of SORA to when an individual is released from confinement, recognizing that release can take place from state prison or after civil confinement due to MHL Art. 10" (id. p 5). Defendant also argues that a premature SORA hearing "frustrates the purpose and intent of SORA, and is likely to lead to an erroneous and unreliable outcome, in violation of [defendant's] State and federal constitutional due process rights" (id ¶ 9 [sic ] ).
The People claim that the definition of "hospital" "does not include individuals awaiting an order pursuant to Article 10" and that "defendant has not been committed to a facility pursuant to Article 10" (Peo's Aff in Opp p 3), but these claims fail. Defendant has been committed to a secure psychiatric facility by this court pending the outcome of the Article 10 proceedings (see Exh A).
The People oppose defendant's motion, arguing that his release or confinement is completely uncertain because the outcome of the Article 10 proceeding is uncertain (Peo's Aff in Opp p 3). A jury may conclude that he does not suffer from a mental abnormality, in which case he would be released. And even if a jury concludes that he suffers from a mental abnormality, the court could release him to Strict and Intensive Supervision and Treatment (SIST) or order that he be confined to a secure psychiatric facility (Def Memo of Law pp 1-2). Moreover, the Board's assessment was based on defendant's original July 2018 release date; therefore their assessment included the necessary information and was not premature (id. ). Relying on People v. Powell , 170 AD3d 413 (1st Dept 2019), lv denied , 33 NY3d 908 (2019), People v. Norris , 168 AD3d 1003 (2nd Dept 2019), lv denied , 33 NY3d 904 (2019), and People v. Blum , 166 AD3d 571 (1st Dept 2018) lv denied , 32 NY3d 918 (2019), the People argue that the court has the discretion to deny defendant's motion to adjourn the SORA proceeding indefinitely and they urge this court to do.
Analysis
This court has the discretion the grant or deny defendant's motion to adjourn the SORA hearing indefinitely. People v. Norris , 168 AD3d at 1004 ("Contrary to the defendant's contention, neither SORA nor the constitutional guarantee of due process required the Supreme Court to postpone the hearing and the determination of his risk level designation pending the resolution of the civil management proceeding, or his release from any resulting confinement."); People v. Powell , 170 AD3d at 413 (court providently exercised discretion in declining to grant indefinite adjournment of SORA hearing based on pendency of Article 10 civil commitment proceeding); People v. Blum , supra (to the same effect); see also People v. Arrahman , 144 AD3d 1009 (2d Dept 2016) (SORA hearing conducted while defendant was confined in secure treatment facility after having been found to be a dangerous sex offender requiring confinement), lv denied , 29 NY3d 902 (2017). Moreover, defendant may seek a modification of his SORA risk level designation in the future, after the civil management proceeding and any confinement that may be ordered as a result of that proceeding. Norris, supra; Powell, supra; Blum, supra .
Defendant argues that Powell and Blum were wrongly decided and urges the court not to follow them, because, he claims, requiring him to move for a modification later will reverse the burdens of proof (Def Mem p 13; Def Aff in Reply pp 8-9). These decisions were wrong, defendant claims, because they failed to consider the Court of Appeals' decision in People v. David W. , 95 NY2d 130 (2000). But David W. is inapposite because its facts are entirely unlike the facts here. David W. held that a person convicted of a sex offense has a constitutional right to notice and an opportunity to be heard before being classified as a sexually violent predator under SORA, id. at 133. In that case, "[a]t no time before the risk level determination was made did [David W.] receive notice that a determination was being made, he was not notified of the information relied upon to make the determination, nor did he receive a hearing or any opportunity to be heard," id. at 134. Moreover, "[t]he review procedures provided to [David W.] ... [did] not bridge the due process gap" because they "did not provide defendant with any meaningful way to voice his objections since [he] was not provided a hearing or any opportunity to present evidence," id. at 139. Here, in sharp contrast, defendant has been notified of the Board's risk assessment before the SORA hearing and may be heard at the hearing before the court makes a determination of his risk level. I therefore decline the invitation to ignore controlling precedent from both the First and Second Departments directly applicable to the present case.
Defendant does not address Norris at all.
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Moreover, I decline to exercise my discretion to dismiss the SORA hearing or to adjourn it indefinitely. Defendant may benefit from sex offender treatment and other types of treatment if he is found to suffer from a mental abnormality and is either confined as a dangerous sex offender or released to the community under SIST, which might affect the calculation of his risk level (Def Mem p 9). But to conclude at this point that after the conclusion of Article 10 proceedings his risk level will be different from what it has been calculated to be now is entirely speculative. After all, as the Board set forth in its case summary, defendant started a sex offender treatment program in DOCCS in August 2015 but was enrolled and removed four times for poor participation or disciplinary reasons. He also had two Tier III Lewd Conduct sanctions stemming from incidents in December 2016 and November 2017 (Def Exh B [Case Summary p 2] ). To assume that his risk level may be reduced in future for participating meaningfully in treatment is entirely theoretical and hardly mandates adjournment of the SORA hearing any longer.
For all of these reasons, defendant's motion is denied.
The foregoing constitutes the decision and order of this court.