Opinion
251397/08.
Decided October 15, 2008.
The State of New York ("petitioner") has filed a Petition for Civil Management for respondent pursuant to Article Ten of the Mental Hygiene Law ("MHL"). In response, respondent has moved, by order to show cause, to dismiss the petition on the ground that he is not a "detained sex offender" as defined in MHL § 10.03, and, therefore, is "ineligible for civil management." For the reasons set forth below, respondent's motion is granted, and the petition is hereby dismissed.
Procedural Background
Under Bronx County Indictment Number 4153/99, respondent was charged with Rape in the First Degree and other related charges. On May 18, 2000, respondent pleaded guilty to Sexual Abuse in the First Degree. He was sentenced by the Honorable Barbara F. Newman to a determinate term of incarceration of six years. The sentencing court did not state that respondent's sentence included a period of post-release supervision as mandated under P.L. § 70.45. The clerk of the court also failed to record any period of post-release supervision as part of respondent's sentence on the commitment papers submitted to the New York State Department of Correctional Services ("DOCS").
On July 8, 2005, respondent was released from the custody of DOCS on the condition that he submit to a five-year period of post-release supervision to be overseen by the New York State Division of Parole. On April 19, 2006, the Division of Parole issued a parole warrant against respondent, declaring him delinquent under the conditions of his release. On June 20, 2006, following a final revocation hearing, respondent was found to have violated the conditions of post-release supervision, and a time assessment of thirty-six months was imposed upon him. Respondent was returned to the custody of DOCS.
Respondent subsequently moved by writ of habeas corpus for an order vacating his parole warrant based upon his claim that he was illegally sentenced to post-release supervision. Specifically, petitioner claimed that post-release supervision was not imposed by the sentencing judge but had been "unlawfully imposed by DOCS." On July 29, 2008, the court sustained respondent's writ (the "writ decision"), and ordered his immediate release from custody. In a written opinion, filed August 7, 2008, the court (the "writ court") held that because the judicially-imposed sentence failed to mention post-release supervision, DOCS had "no authority" to impose any period of post-release supervision. Accordingly, the court found that the "putative period of [post-release supervision] to which DOCS unlawfully compelled [respondent] to submit in exchange for his release from incarceration was a nullity ab initio" ( see People ex rel. Robinson v. Warden, Index No. 340625/08 [Sup. Ct. Bronx County, August 2008] [Newman, J.]).
DOCS gave notice that same date to the Attorney General pursuant to MHL § 10.05 that respondent might be a detained sex offender nearing release. In view of the writ decision and DOCS' notice, petitioner moved for a securing order to provide additional time to evaluate respondent pursuant to Article Ten. Upon petitioner's motion, a securing order was issued, directing respondent to remain in the custody of DOCS pursuant to MHL § 10.06(f). On August 6, 2008, petitioner filed a Petition for Civil Management for respondent pursuant to MHL Article Ten.
The parties disagree as to whether the writ decision was issued before or after the MHL § 10.05 notice letter was mailed by DOCS to the Office of Mental Health ("OMH") and the Attorney General. Based on the evidence submitted by the parties, this Court is unable to resolve which event occurred first on July 29, 2008. However, resolution of this issue is not germane to this Court's decision, as discussed infra.
On September 15, 2008, a hearing was held pursuant to Corrections Law § 601-d, to determine whether the sentencing court would resentence respondent to a period of post-release supervision. At that time, the Bronx County District Attorney's Office declined to have respondent resentenced to post-release supervision.
Respondent's Claim
By papers dated September 16, 2008, respondent moved by order to show cause for dismissal of the petition. Respondent claims that the Article Ten petition must be dismissed because it fails to establish that he is a "detained sex offender" within the meaning of MHL § 10.03. Specifically, respondent argues that the petition was filed during a period of illegal incarceration by DOCS, which the writ court ruled was a " nullity ab initio." Accordingly, respondent claims that he "is not now, nor was he ever, a detained sex offender' under MHL 10.03(g)(1)" since his last day of lawful detention was July 8, 2005, well before the enactment of Article Ten, and thus, is "ineligible for civil management."
In response, petitioner argues that the Article Ten proceeding was properly commenced because DOCS had lawful custody of respondent when notice was given, and therefore, was an "agency with jurisdiction" under Article Ten. Alternatively, petitioner argues that even if DOCS did not have lawful custody of respondent, DOCS "remained the appropriate agency with jurisdiction'" that was responsible for releasing respondent. In support of this claim, petitioner asserts that "[n]othing in Article [Ten] suggests that DOCS' custody must be lawful at the time . . . notice is issued."
Legal Discussion
Under Article Ten, when a "detained sex offender" is nearing release from "an agency with jurisdiction," that agency must give notice of the impending release to the Attorney General and OMH (MHL 10.05[b]). The Attorney General may then file a Sex Offender Civil Management Petition (MHL § 10.06[a]). The petition must "contain a statement or statements alleging facts of an evidentiary character tending to support the allegation that the respondent is a sex offender requiring civil management" (MHL § 10.06[a]). A "sex offender requiring civil management" is defined as a "detained sex offender who suffers from mental abnormalities" (MHL § 10.03[q]). A "detained sex offender" is defined as "a person in the care, custody, control or supervision of an agency with jurisdiction," having been convicted of a sex offense as defined under MHL § 10.03(p) 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" (MHL § 10.03[g][1]). At trial, petitioner has the burden of establishing by clear and convincing evidence that respondent is a "detained sex offender" who suffers from a mental abnormality (MHL § 10.07[d]).
Here, petitioner has failed to meets its burden of establishing that respondent is a "detained sex offender" within the meaning of MHL § 10.03(g). Upon careful analysis of the statutory language, it is clear that Article Ten applies only to a "detained sex offender" who is legally detained ( see State v. Colon, Index No. MH43878/08 [Sup. Ct. Erie Co., August 2008] [Michalski, J.]; see also People ex rel David N.N. v. Hogan , 53 AD3d 841 [3d Dept. 2008] [detained sex offender must be in agency's authorized custody when notice given]). If this Court were to find that the definition of a "detained sex offender" included an inmate who was being unlawfully detained "long after he has fully served the only sentence lawfully imposed," it "would make a mockery of due process and fundamental fairness" ( Colon at 6). Thus, petitioner's claim that respondent's custody need not be lawful is rejected.
Moreover, such an interpretation of the statute would be contrary to its legislative intent. Upon enacting Article Ten, the legislature limited its purview to "detained" sex offenders "in the care, custody, control or supervision of an agency with jurisdiction" (MHL § 10.03[g]). The statute certainly could have authorized management and treatment petitions for all sex offenders, including those who had been released from custody prior to the enactment of Article Ten. However, as the plain reading of the statute manifests, Article Ten was limited in its applicability to those sex offenders who are "detained." Indeed, the statutory intent would clearly be circumvented if a convicted offender who had completed service of a lawful sentence could be illegally detained simply to subject him to an Article Ten petition.
Since the United States Supreme Court has held that sex offender management and treatment proceedings are not criminal in nature, ex post facto prohibitions have no applicability ( see Kansas v. Hendricks, 521 U.S. 346 [1997]; see also Allen v. Illinois, 478 U.S. 364 [1986]).
In this case, respondent was being illegally detained by DOCS when the Article Ten review process was commenced. After serving a determinate term of incarceration as a convicted sex offender, respondent was released from prison on July 8, 2005. From June 2006 until July 2008, respondent was incarcerated for violating post-release supervision, which had been unlawfully imposed by DOCS. Because DOCS had no authority to impose post-release supervision, the writ court found that the period of post-release supervision "to which DOCS unlawfully compelled [respondent] to submit in exchange for his release from incarceration was a nullity ab initio." Accordingly, the court found respondent's detention to be "unlawful" and directed his release "forthwith."
Petitioner's claims that the writ court erred in its ruling, and that respondent should have been resentenced by the sentencing court to post-release supervision are unpersuasive. First, if petitioner believed the writ was wrongly decided, the proper remedy is direct appeal, not an attempt to relitigate the issue before a court of coordinate jurisdiction. Furthermore, when respondent was returned to the sentencing court pursuant to Corrections Law § 601-d to determine if he would be resentenced to a mandatory period of post-release supervision, the Bronx County District Attorney's Office declined to have respondent resentenced.
Presumably, the District Attorney's decision to decline to have respondent resentenced to post-release supervision was due to the case law which permits respondent to withdraw his plea where he was not advised of post-release supervision at the time of his plea ( see People v. Louree , 8 NY3d 541 [2007] [defendant not advised of required post-release supervision during a plea allocution may challenge validity of plea on direct appeal]).
During oral argument, petitioner further urged this Court to reject the writ court's decision because "the Article Ten proceeding is separate . . . and distinct from the proceeding that was before [the writ court]." Petitioner's claim is rejected. This Court is bound by the writ court's decision under settled principles of collateral estoppel. Collateral estoppel, also referred to as issue preclusion, precludes the parties from relitigating an issue already decided in a prior action by a court of coordinate jurisdiction ( see People v. Evans, 94 NY2d 499; Staatsburg Water Co. v. Staatsburg Fire Dist., 72 NY2d 147 [collateral estoppel prevents party from relitigating issues in subsequent actions previously decided in earlier adjudications]; see also Ashe v. Swenson, 397 U.S. 436, 443 [issue determined by final judgment can not be litigated between same parties in future lawsuit]). Indeed, the issue regarding post-release supervision has been previously decided by the writ court in a proceeding involving the same parties involved in this case. Thus, despite petitioner's claim to the contrary, this Court is bound by the decision of the writ court that DOCS could not impose post-release supervision on respondent and that his detention was unlawful ( see People ex rel. Garner v. Warden , 40 AD3d 243 [1st Dept. 2007]).
Since he was being held illegally, respondent was not a "detained sex offender" within the meaning of MHL § 10.03(g)(1). First, he was not in the control or custody of an agency with jurisdiction as required by the statute. An "agency with jurisdiction" is defined as an "agency responsible for supervising or releasing such person" (MHL § 10.03[a]). While Article Ten does not require that respondent be in the custody of an agency with jurisdiction at the time the Article Ten petition is filed, it does require that "the detained sex offender [must] be in the agency's custody and nearing release when the initial notice is given" pursuant to MHL § 10.05(b) ( see David N.N., 53 AD3d at 843). Here, since respondent was unlawfully detained by DOCS and his two-year period of incarceration was declared a " nullity ab initio," respondent was not legally in the custody of DOCS at the time it gave notice pursuant to MHL § 10.05(b) on July 29, 2008. Indeed, even if the writ court's oral decision were rendered after DOCS had filed notice, that would not moot the illegality of his detention. Since the writ court found that respondent's entire two-year period of imprisonment was a "nullity ab initio," the entire period of detention was unlawful including the date on which notice was filed.
Since DOCS had no legal authority to hold respondent, it was not an "agency with jurisdiction" within the meaning of the statute. Indeed, the last day he was legally within the custody or control of DOCS was July, 8, 2005, more than twenty-one months before the enactment of Article Ten.
Second, at the time notice was given, respondent was not "currently serving a sentence for, or subject to supervision by the Division of Parole, whether on parole or on post-release supervision, for [a sex] offense or for a related offense" ( see MHL § 10.03[g][1]). Defendant had completed his prison sentence pursuant to his sex offense conviction in July 2005. At the time notice was served, respondent was incarcerated for violating post-release supervision. The writ court found that DOCS had no authority to impose post-release supervision upon respondent, and therefore, had unlawfully detained him. It further held that the entire period of post-release supervision that DOCS had unlawfully imposed upon respondent was a "nullity ab initio." Accordingly, at the time notice was given, respondent was not "currently serving a sentence for, or subject to supervision by the division of parole, whether on parole or on post-release supervision, for [a sex] offense or for a related offense" pursuant to MHL § 10.03(g)(1). Therefore, he was not a "detained sex offender" within the meaning of MHL § 10.03(g)(1).
Petitioner's claim that respondent was legally in custody based on the securing order issued on July 29, 2008, is rejected. First, the securing order was issued after DOCS filed notice, and after the writ decision finding respondent's post-release supervision invalid. Moreover, the securing order would not be a sufficient basis to characterize respondent as a "detained sex offender" pursuant to MHL § 10.03(g)(1) since at that time, he was not serving a sentence for, or subject to supervision by the Division of Parole for a sex offense or related offense as required by the statute.
The facts here are nearly identical to those in State v. Colon, Index No. MH43878/08 (Sup.Ct. Erie Co. August 2008) (Michalski, J.). In Colon, the respondent had been convicted of a sex crime and was released from prison in 2005. Upon his release, DOCS illegally imposed a term of post-release supervision. During the respondent's incarceration for a violation of post-release supervision, an Article Ten petition was filed. The respondent moved to dismiss that petition, claiming that Article Ten was limited to legally detained sex offenders and that his detention was unlawful because it was the result of an illegally imposed period of post-release supervision. The court granted the respondent's motion, holding that the term "designated sex offender presumably refers to an inmate who is lawfully detained" ( Colon at 5). Similar to the respondent in Colon, respondent in the instant case can not be considered a "detained sex offender" because he was not lawfully detained by DOCS since it had illegally imposed post-release supervision.
In contrast to Colon, a similar motion was denied in Matter of State v. Washington, Index No. 08-3758 (Sup.Ct. Ulster Co. 2008), where respondent had been incarcerated for violating post-release supervision, which had been unlawfully imposed by DOCS at the time notice was given. However, Washington is distinguishable from this case. In Washington, the respondent had been resentenced to a lawful period of post-release supervision before he filed his writ of habeas corpus. Further, to the extent Washington is some authority for the proposition that an illegally detained person may nevertheless be a "detained sex offender" for purposes of Article Ten, this Court declines to adopt this case as persuasive authority.
The cases cited by petitioner are clearly distinguishable from the instant case. In People ex rel David N.N. v. Hogan , 53 AD3d 841 (3d Dept. 2008), the respondent had been transferred from a correctional facility to an OMH facility for an Article Ten examination. When the examination was not completed by the release date, the respondent filed an Article 78 petition, pursuant to which the respondent was ordered released. However, the State obtained an order, detaining the respondent pending an Article Ten hearing. The respondent moved to dismiss the petition, claiming that OMH had no jurisdiction under Article Ten because the respondent had already been released from its custody when the petition was filed. In denying the respondent's motion, the Appellate Division held that Article Ten requires only that the "detained person to be in the agency's custody and nearing release when the initial notice is given, however, not when the petition is filed" ( David N.N., 53 AD3d at 843). Since the respondent had been in the lawful custody of OMH at the time the initial notice was given as the respondent was nearing anticipated release, OMH was found to be an agency with jurisdiction ( id. at 844). This is clearly distinguishable from the instant case because respondent was never in the lawful custody of DOCS for a violation of post-release supervision. Thus, David N.N. actually supports respondent's claim since it established that the agency must have legal custody over respondent when notice is given.
Similarly, Matter of State v. Millard, 19 Misc 3d 283 (Sup.Ct. Broome Co. 2008) is also distinguishable. In Millard, the respondent was detained under MHL § 10.03(g)(5), which defines a "detained sex offender" as a person convicted of a sex offense who was a patient at an OMH hospital any time after September 1, 2005, and was admitted upon "release or conditional release from a correctional facility." In Millard, while the respondent had been released from OMH's custody before the State had filed its petition, the respondent, having been a patient at an OMH facility after September 1, 2005, upon his conditional release from prison, fell within the alternative definition of a "detained sex offender" under
MHL § 10.03(g)(5). Here, on the contrary, respondent did not fall within the applicable definition of "detained sex offender" under MHL § 10.03(g)(1). Since DOCS had no authority to impose post-release supervision, respondent was not "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." Thus, despite its claim to the contrary, Millard does not support petitioner's claim.
Accordingly, because petitioner has failed to establish that respondent is a detained sex offender within the meaning of MHL § 10.03(g)(1), respondent's motion is granted. Therefore, the Article Ten petition is hereby dismissed.