Opinion
No. 250763–2008.
2012-01-9
The STATE of New York, Petitioner, v. Bernard DEVEAUX, Respondent.
Don Graham, Esq., Mental Hygiene Legal Service, Marvin Bernstein, Director, New York City. Russell Seeman, Esq., Office of Eric T. Schneiderman, Attorney General of the State of New York, White Plains.
Don Graham, Esq., Mental Hygiene Legal Service, Marvin Bernstein, Director, New York City. Russell Seeman, Esq., Office of Eric T. Schneiderman, Attorney General of the State of New York, White Plains.
COLLEEN D. DUFFY, J.
On May 5, 2011, a Bronx jury declared that, pursuant to Article 10 of the Mental Hygiene Law (“MHL”), Bernard Deveaux (“Respondent”) is a detained sex offender requiring civil management.
Respondent now moves to dismiss the matter for lack of jurisdiction, contending that the State of New York, through its Attorney General (“Petitioner”), commenced the action against him in violation of the terms of the governing statute, The Sex Offender Management and Treatment Act (“SOMTA”). Respondent contends that, at the time Petitioner filed the Article 10 civil management petition, no jurisdiction existed, as required by the statute, because his term of incarceration already had been completed and he was being detained by the Department of Corrections (“DOCS”)
beyond the period of incarceration he should have served. According to Respondent, DOCS erred by not giving Respondent credit for each leap year day served during his term. Respondent contends that, but for such alleged error, he would not have been incarcerated when the Petitioner filed this petition and thus is not within the group of persons against whom such petitions may be filed.
At the time this action was commenced, in 2008, Respondent was detained by the Department of Corrections (“DOCS”). In 2011, the Legislature combined DOCS with the Division of Parole to form a new entity, the Department of Corrections and Community Supervision (“DOCCS”). L.2011, ch 62, § 118–a; MHL § 10.03(a).
For the reasons set forth below, Respondent's motion to dismiss is denied.
I. BACKGROUND
In 1978, Respondent was convicted of Rape in the First Degree and Attempted Rape in the First Degree and two counts of Criminal Possession of a Weapon in the Fourth Degree, and was sentenced to two consecutive indeterminate terms of incarceration-twelve and a half to twenty five years for Rape in the First Degree and seven and a half to fifteen years for Attempted Rape.
These terms of incarceration included credit to Respondent from the date he was first incarcerated on the matters, April 21, 1978, the date of Respondent's arrest. Respondent's maximum expiration date, as calculated by DOCS, was April 16, 2008.
Pursuant to PL § 70.35, Defendant's sentences on the misdemeanor charges of Criminal Possession of a Weapon were merged into his felony sentence.
See CPL 70.30(1)(e)(i)(maximum aggregate term of imprisonment for two or more felonies, one of which is a B felony, is 30 years).
The Court notes that Respondent actually served a term of imprisonment 5 days shy of 30 years. Neither party has articulated a reason why DOCS credited Respondent those 5 days.
On April 15, 2008, Petitioner filed the petition at issue, contending that Respondent is a detained sex offender requiring civil management.
A jury trial in this matter began on April 25, 2011, and was continued on April 26–29, May 2–5, 2011, and concluded on May 5, 2011.
After Petitioner rested its case, it sought summary judgment on the issue of whether Defendant was a detained sex offender, as that term is defined in the statute.
Petitioner contended that there was no issue of material fact or dispute of law as to that issue. Petitioner contended that Exhibit B in evidence, a Certificate of Incarceration issued by DOCS, dated December 15, 2008, established that Respondent had been incarcerated, under the jurisdiction of DOCS, on the underlying sex offenses from the time of his conviction to April 16, 2008.
SeeMHL 10.03(g) and Section II, infra.
December 6, 1978, is the date of Respondent's conviction; Respondent was arrested and had been incarcerated since April 21, 1978.
Respondent opposed summary judgment on the issue, contending that the issue should go to the jury and that he was not lawfully detained at the time the Article 10 petition was filed.
Although Respondent does not dispute that he was incarcerated on the dates set forth in Exhibit B, Respondent claims that DOCS had calculated his period of incarceration incorrectly by failing to give him credit for eight days to which Respondent claims he was entitled. According to Respondent, there were eight February 29ths over the course of his 30 year incarceration for which he claims he should have been credited but was not.
With respect to Petitioner's motion, neither party raised any issue of law or fact. With respect to Respondent's contention, the Court found such “leap year argument” to be spurious and, accordingly, granted summary judgment to Petitioner on the issue of “detained sex offender.”
On May 5, 2011, the jury rendered a unanimous verdict that Respondent is a detained sex offender who now suffers from a mental abnormality in that he has a congenital or acquired condition, disease or disorder that affects his emotional, cognitive or volitional capacity in a manner that predisposes him to commit a sex offense and results in his having serious difficulty in controlling such conduct.
As a result of the jury verdict, pursuant to MHL § 10.07(f), the Court provided the parties an opportunity to present additional evidence with respect to whether Petitioner has proven by clear and convincing evidence that Respondent is a dangerous sex offender requiring confinement or whether he is a sex offender requiring strict and intensive supervision. That proceeding (the “Dispositional Hearing”) commenced on August 30, 2011, and was completed on September 1, 2011.
The Court found that Respondent is a detained sex offender who suffers from a mental abnormality, but that the State had not proven by clear and convincing evidence that Respondent is a dangerous sex offender requiring confinement. Accordingly, the Court determined that, pursuant to MHL § 10.11(2), Respondent should be released into the community under strict and intensive supervision. See Decision and Order, dated December 20, 2011.
After the trial and before the Dispositional Hearing, on September 23, 2011, Respondent filed this motion seeking dismissal of the proceeding on jurisdictional grounds.
On October 6, 2011, the State filed an opposition to the motion. For the reasons set forth below, Respondent's motion is denied in its entirety.
II. RELEVANT STATUTORY PROVISIONS
A respondent may be subject to civil management, Pursuant to Article 10, only if he is a “detained sex offender,” as that term is defined in the Mental Hygiene Law. MHL 10.03(q).
A “detained sex offender,” is defined, in relevant part, as, 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, 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).
An “agency with jurisdiction” is defined as “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 corrections and community supervision [DOCCS], the office of mental health, and the office for people with developmental disabilities.” MHL 10.03(a).
With respect to calculation of time, General Construction Law § 58 provides, in relevant part, that, “in a statute, contract and public or private instrument [the term “year”] means three hundred and sixty-five days, but the added day of a leap year and the day immediately preceding shall for the purpose of such computation be counted as one day.”
Although General Construction Law § 20 provides, in relevant part, that the “number of days specified as a period from a certain day within which or after or before which an act is authorized or required to be done means such number of calendar days exclusive of the calendar day from which the reckoning is made,” as noted further herein, infra. at 7, this statute is not relevant to the calculation of Respondent's term of incarceration.
Penal Law § 70.00, “Sentence of Imprisonment for Felony,” provides, in relevant part, that “[t]he maximum term of an indeterminate sentence shall be at least three years [emphasis added] and the term shall be fixed as follows: (a) For a class A felony, the term shall be life imprisonment; (b) For a class B felony, the term shall be fixed by the court, and shall not exceed twenty-five years [emphasis added]; (c) for a class C felony, the term shall be fixed by the court and shall not exceed fifteen years; (d) for a class D felony, the term shall be fixed by the court, and shall not exceed seven years; and (e) for a class E felony, the term shall not exceed four years.”
The other provisions of PL § 70.00, et seq., also set forth the periods of time for incarceration in “years.”
III. CONCLUSIONS OF LAW
For the reasons set forth below, the Court denies Respondent's motion to dismiss. The Court notes that, during the trial, it previously denied Respondent's “leap year credit” contention and Respondent has presented no new law or facts to renew or reargue the motion.
Moreover, even if the Court were to reconsider Respondent's contention, it is meritless. It is well established, both in case law and statute, that the leap year days which occurred during Respondent's incarceration do not constitute “extra days” to which Respondent is entitled to credit in calculating his term of incarceration. Accordingly, Respondent's motion fails.
Finally, even if Respondent's “leap year argument” had some merit, which it does not, it still would have no effect on the jurisdiction of the Article 10 petition filed against Respondent.
1. No Issue of Fact or Law Has Been Overlooked or New Issue of Fact or Law Presented
When the Court granted Petitioner summary judgment on the issue of detained sex offender at trial, the Court determined that there was no material issue of law or fact and that Respondent's contention about “leap year credit” was a spurious argument. Respondent does not contend that the Court overlooked issues of law or fact and has presented no new issues of law or fact to grant any motion to renew and reargue this “leap year credit” contention.
A motion to reargue is granted only if it is “based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion.” C.P.L.R. § 2221(d)(2); see also Andrea v. E.I. DuPont de Nemours Co., 89 A.D.2d 1039, 1040–1041, 735 N.Y.S.2d 683 (4th Dep't 2001), app. denied,97 N.Y.2d 609, 765 N.E.2d 853, 739 N.Y.S.2d 357 (2002). “Its purpose is not to serve as a vehicle to permit the unsuccessful party to reargue once again the very questions previously decided.” Foley v. Roche, 68 A.D.2d 558, 567, 418 N.Y.S.2d 588 (1st Dep't 1979).
A motion to renew must be “based upon new facts not offered on the prior motion that would change the prior determination or [the party] demonstrate that there has been a change in the law that would change the prior determination.” CPLR 2221(e)(2); Elbaz v. N.Y.C. Housing Auth., 2011 N.Y. Slip Op. 9589 (2d Dept.2011)(court should have denied motion to renew where no new facts or change in law was presented).
Here, Respondent simply has rehashed issues which he previously had argued unsuccessfully to this Court; he has failed to offer new facts or show in any way that the Court overlooked any material fact or misapprehended any matter of law. Accordingly, the motion is denied on that ground.
2. The Statutory Definition of “Year” Excludes Counting Leap Year Days for Calculation of Time
Even if the Court were to allow Respondent to renew or reargue his motion to dismiss this action, such motion still would be denied because the term “year” is statutorily defined to exclude calculation of leap year days as extra days. GCL § 58. Indeed, the New York statutes that construe time periods belie Respondent's contention.
Penal Law § 70.00 sets forth the sentences of imprisonment required for classes of felony cases in terms of years, not days. The Penal Law itself does not define the term “year”; this term is defined in New York State General Construction Law.
The General Construction Law provides that, for purposes of determining a “year,” a leap year day shall not be counted. Specifically, GCL § 58 provides, in relevant part, that, “in a statute, contract and public or private instrument [the term “year”] means three hundred and sixty-five days, but the added day of a leap year and the day immediately preceding shall for the purpose of such computation be counted as one day.”
According to such statute, a year' for the purposes of Penal Law § 70.00, defined as 365 days, can be either 365 days or 366 days in leap years. Respondent has failed to set forth any relevant legal precedent for his contention that he served extra days of imprisonment due to the leap years in which he was incarcerated.
The one case, Meadows v. Ternullo, 73 Misc.2d 163 (Sup.Ct., New York Co.1973), cited by Respondent in support of his contention that he should have received “credit” for leap year days is wholly inapposite. Meadows dealt with the calculation of jail time credit for a sentence of less than one year of incarceration, which calculation is governed by GCL § 20, not § 58.
In Meadows, the defendant was serving two separate sentences, each less than one year, which were to run concurrently. The court included a day for February 29 in calculating the jail period of December 7, 1971, to March 10, 1972. In that case, the court added up each individual day to calculate a period of time of less than a year. Such calculation, governed by GCL § 20, not GCL § 58, is the correct tabulation. See Popruzuk v. City of Yonkers, 2010 N.Y. Slip Op. 50817U, *3, 27 Misc.3d 1220A (Sup.Ct., Westchester Co.2010)(calculation of years is governed by GCL § 58; calculation of 90 day period is governed by GCL § 20 and is calculated by adding the number of calendar days); Decicco v. City of Syracuse, 68 AD3d 1771, 1772 (4th Dept.2009).
Thus, Respondent's motion is without legal basis and is denied.
3. Court of Appeals Precedent Also Requires Dismissal
Even if there were some merit to Respondent's contention that his incarceration was longer than it should have been, a recent Court of Appeals case, People ex rel. Joseph II v. Southport Correctional Facility, 15 NY3d 126 (2010), requires that the motion be denied.
In Joseph II, the Court of Appeals held that Article 10 jurisdiction vests even in cases where a Respondent is a detained prisoner as a result of a procedural error. 15 NY3d at 135. There, two respondents sought dismissal of the Article 10 petitions against them, contending that they were not lawfully detained at the time the Article 10 petitions were filed, and thus were not “detained sex offenders” subject to Article 10.
In Joseph II, the Article 10 action was commenced against each respondent after each respondent had served his sentence, had begun serving an improperly-imposed period of post-release supervision, had violated this post-release supervision, and was returned to prison. Id. at 131. The respondents contended that they were not “detained sex offenders” because their post-release supervision terms, and thus their imprisonment resulting from violations of the post-release supervision conditions, were unlawful. Id. at 130.
The Court of Appeals rejected respondents' argument that “custody” must mean lawful custody and held that such respondents nevertheless could be subject to Article 10, as such respondents were in “the care, custody, control, or supervision of an agency with jurisdiction”—namely DOCS—at the time that the Article 10 proceeding was commenced. Id. at 135.
Likewise, even if Respondent's argument that he was unlawfully detained because he didn't get credit for leap year days had some sort of merit, Joseph II dictates that such claim, even if valid, would not erase Article 10 jurisdiction over him.
For all of these reasons, Defendant's motion to dismiss is denied.
The Court considered the following in addressing the motion: Notice of Omnibus Motion, filed September 23, 2011, and Affirmation of Don Graham, Esq., in Support of Motion; Affirmation of Russell T. Seeman, Esq., Assistant District Attorney, in Opposition to Motion, submitted October 6, 2011.
This constitutes the Decision and Order of this Court.