Opinion
3009/21
06-17-2021
In the Matter of the Application of The State of New York, Petitioner, v. Lance S., Respondent, For Commitment Under Article 10 of the Mental Hygiene Law.
New York State Attorney General Letitia James (Jeffrey Jackson, of counsel) for the State. Mental Hygiene Legal Services, First Department (Rachel S. Martin, of counsel) for the Respondent.
New York State Attorney General Letitia James (Jeffrey Jackson, of counsel) for the State. Mental Hygiene Legal Services, First Department (Rachel S. Martin, of counsel) for the Respondent. Daniel Conviser, J.
The Respondent is the subject of a petition for sex offender civil management pursuant to Article 10 of the Mental Hygiene Law ("Article 10"). He moves here to dismiss the petition alleging that it did not adequately allege he is a "Detained Sex Offender" under the statute. For the reasons which follow, that motion is denied.
Statement of Facts
The petition in this case was filed on August 12, 2020 (the "Petition"). According to the Petition, the Respondent was incarcerated on the petition date based on two separate convictions. On August 8, 2013 he pled guilty to one count of Assault in the Second Degree and one count of Unlawful Imprisonment in the First Degree, both felonies. On September 19, 2013, he was sentenced to a determinate sentence of 7 years followed by 5 years of post-release supervision for the assault conviction and to an indeterminate sentence of 2-4 years on the unlawful imprisonment conviction, to run concurrently.
According to the Petition, the Respondent's assault plea was in satisfaction of charges including Attempted Rape in the First Degree for a crime which occurred on July 18, 2013. The unlawful imprisonment conviction concerned a different victim where the Defendant was initially charged with Rape in the Third Degree for a crime which occurred on June 16, 2013. It is clear that neither of these convictions were for a "sex offense" as defined by Article 10. MHL §10.03 (p).
About a decade earlier, on April 7, 2004, the Defendant pled guilty to Rape in the First Degree, a sex offense under Article 10. He was sentenced to a determinate sentence of 10 years on May 7, 2004. He was resentenced on May 25, 2011 to add a period of 5 years post-release supervision. He was placed on post-release supervision for this crime on April 13, 2012. The Defendant's plea in that case arose from charges he raped two different victims. At the time Mr. S. was convicted of the assault and unlawful imprisonment crimes, he was serving the period of post-release supervision for this rape conviction.
In 1997, according to the Petition, the Defendant was alleged to have anally raped a another victim when he was 21 years old and convicted of a sodomy crime in North Carolina. While awaiting an adjudication of that case, he was arrested for the rape of a different victim but the charges were dismissed. He was also previously convicted of a number of financial and forgery crimes. According to the Petition, the Defendant's instant assault and unlawful imprisonment convictions arose when he was on sex offender specific parole, subject to GPS monitoring, receiving sex offender treatment and, according to the State, was a Level 3 offender deemed at high risk to re-offend under the Sex Offender Registration Act.
Conclusions of Law
In order to be subject to civil management, a respondent must be a "Detained Sex Offender" (MHL § 10.03 (g)) who suffers from a Mental Abnormality. As relevant here, a "Detained Sex Offender" includes "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 . . . [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) (1).
This provision contains an ambiguity, since it starts with two statutorily defined terms under Article 10, "sex offense" (MHL § 10.03 (p)) and "designated felony" (MHL § 10.03 (f)), then provides a definition which diverges from these defined terms preceded by the phrase: "in that the person is". The further definition of these defined terms includes, consistently, the term "sex offense" then inconsistently excludes "designated felony" and then adds "related offense". Since the Legislature appeared to intend the clause "in that the person is" to describe the controlling definition, this Court believes the words following this phrase are controlling. That also appears to be how this clause has been interpreted by appellate courts.
"Related offenses" under Article 10 "include any offenses that are prosecuted as part of the same criminal action or proceeding, or which are part of the same criminal transaction, or which are the bases of the orders of commitment received by the department of correctional services in connection with an inmate's current term of incarceration". MHL § 10.03 (l). Italics are added here since these words are the crux of the statutory construction question at issue on this motion.
The "department of correctional services" was merged with the division of parole after the enactment of Article 10 and is now the Department of Corrections and Community Supervision ("DOCCS"). Although the Legislature modified agency names in numerous statutes following the merger, it was not modified in this provision of Article 10. In this Court's view, however, that is not material to the issue here.
The facts underlying this motion are clear. It is clear that the Respondent was convicted of a sex offense as defined by Article 10, his 2004 conviction for Rape in the First Degree. It is further clear that the Respondent was incarcerated by the New York State Department of Corrections and Community Supervision on the date the petition was filed. The State must file an Article 10 petition at a time when the respondent is either in state custody or, if not in custody, still subject to state supervision. Matter of State of New York v. Rashid, 16 NY3d 1, 16-17 (2010). The question is whether he was incarcerated for a "Related Offense" under the statute at the time the Petition was filed. In this Court's view, he was.
That is clear from the definition of "Related Offenses". "Related offenses" include those which are "the bases of the orders of commitment received by the department of correctional services in connection with an inmate's current term of incarceration". MHL § 10.03 (l). Under this clause's plain meaning, the Defendant's conviction for Assault in the Second Degree meets that test. It is undisputed that the Defendant was serving a sentence in state prison based on a commitment order for at least this offense at the time the Petition was filed.
When interpreting statutory language, the Court must give effect to the intent of the Legislature. "Because the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof. Where the statutory language at issue is but one component in a larger statutory scheme, it must be analyzed in context and in a manner that harmonizes the related provisions and renders them compatible." Matter of Marian T., 36 NY3d 44, 49 (2020) (citations and internal quotations omitted).
The Respondent's argument, in this Court's view, depends on imputing an additional requirement into this clear definition: the requirement that the service of the state prison sentence for this assault conviction was also "related" in some additional sense to the Respondent's 2004 rape conviction. But no such additional requirement is provided by the statute. Nor is there any reason to presume the Legislature intended to insert any such additional requirement into Article 10. The Respondent argues that his assault and unlawful imprisonment convictions were not "related offenses", inter alia, because the orders of commitment received by DOCCS for these crimes did not include "any reference to the 2004 rape conviction". But no such reference is required by the statute.
Respondent's Affirmation, ¶ 21.
In this Court's view, the statute means what it says and its plain meaning is rational and consistent with Article 10's purpose. The statute bars the State for seeking civil management once a respondent is no longer subject to the service of a criminal sentence. As the Rashid Court explained, "[a]rticle 10 was not designed to cover such individuals [Article 10 respondents] once they pass beyond the purview of the criminal justice system". Rashid, 16 NY3d at 17. But, as relevant here, the statute allows, without limitation, the filing of a civil management petition at the time a respondent is confined in DOCCS based on orders of commitment for any crime, so long as the respondent also was previously convicted of a sex offense as defined by the statute.
Article 10 also provides the State greater authority to bring a petition against a respondent who is in physical DOCCS custody than it does for persons on supervision. As the Rashid Court further explained, "[t[his third category of 'related offenses' [the category of inmates in DOCS custody] is broadly worded, reflecting the Legislature's apparent decision to give the State more leeway to pursue civil commitment against soon-to-be released DOCS inmates than parolees (citations omitted). . . . A DOCS inmate does not even have to have been committed to DOC's custody for a sex offense in order to be a "detained sex offender". Rashid, n. 12 (citation omitted).
This Court ruled on the initial motion dismissing the petition in Matter of State of New York v. Rashid, 25 Misc 3d 318 (Sup Ct. NY County 2009). That decision was affirmed by the First Department (68 AD3d 615 (1st Dept 2009)) and the First Department's decision was affirmed by the Court of Appeals. The acronym "DOCS" (Department of Correctional Services) rather than "DOCCS" (Department of Corrections and Community Supervision) was used in Rashid since the decision was published prior to the agency merger.
This Court has construed the statute in the manner outlined here since first reviewing it in 2009. In this Court's decision in Matter of State of New York v. Rashid, it said that even where a defendant was not serving a sentence for a sex offense under Article 10, "civil management notice could still be given if the defendant was actually incarcerated under a commitment order to the State Department of Correctional Services for any crime". 25 Misc 3d at 333.
The instant case, moreover, demonstrates why the statute's boundaries further a reasonable policy. The State did not bring a petition in this case following the Respondent's conviction for first degree rape after allegedly raping two victims, even though he had earlier been convicted of a sodomy crime for a sexual assault in North Carolina and arrested for yet a fourth sexual assault for which charges were dismissed. Only after the Respondent was charged with multiple additional rapes and imprisoned did the State apparently came to the conclusion that Mr. S.'s extensive sexual assault criminal history warranted the filing of a petition. Article 10 allowed this and reasonably so. Had Mr. S. not committed additional crimes warranting incarceration in state prison after his rape conviction, he would have fallen outside the bounds of the statute upon the completion of the sentence for that rape.
The Legislature apparently determined, however, that an offender convicted of a qualifying sex offense might demonstrate additional criminality after the completion of a sentence for a sex crime, and that, in such circumstances, the State should be entitled to review such respondents for Article 10 coverage. As the Court of Appeals opined in People ex rel. Joseph II. v. Superintendent of Southport Correctional Facility, 15 NY3d 126, 135 (2010) the Legislature may have limited the State's ability to subject sex offenders to Article 10 to those who were detained "because it thought those who were detained present a more serious threat to public safety". That is what occurred here.
The Rashid case did not directly address the circumstance at issue on this motion: a case where the State was entitled to subject a respondent to civil management because he was in prison for a non-sexual crime. A number of appellate cases have considered such circumstances, however, and in each case have found the respondent was a Detained Sex Offender. These cases are briefly outlined here.
In the first decision, Matter of State of New York v. Williams, 92 AD3d 1274, 1276 (4th Dept 2012), the Fourth Department analyzed the issue as this Court understands it. That decision, however, did not provide a detailed analysis. The remaining three decisions from the Second Department, while reaching the same conclusion as this Court and the Williams Court, introduced what this Court respectfully believes were unnecessary complexities and layers of analysis which suggest the statute is imbued with requirements which, in this Court's view, do not exist. Both parties on this motion made similar arguments, parsing the relationship between prior sexual and non-sexual convictions and sentences in a manner which this Court believed was unnecessary.
In this Court's view, the issue here is simple and was simply explained in Rashid. Where a respondent was previously convicted of a qualifying sex offense and is subject to orders of commitment to DOCCS for any crime, he may be subject to civil management. The fact that the statute uses the term "related offenses" doesn't change the legislative definition of what those two words mean. The term is not colloquial. It is precisely defined.
Article 10 trials generally consider whether a respondent suffers from a "Mental Abnormality", a determination which requires expert opinion evidence, discretion and judgement. But the determination of a whether a respondent is a "Detained Sex Offender" under the statute simply defines the category of offenders who are eligible for potential civil management. It is an issue which is not contested in the vast majority of cases. It is a threshold requirement. But applying that requirement is almost always mechanical — determining whether an offender fits within the clearly defined parameters of the Article 10 eligibility rules. The issue is generally not contested because the State generally follows those rules.
In Williams, the Court held that a respondent serving a prison sentence for reckless endangerment (a non-sexual offense under Article 10) which had commenced consecutively to sentences for second degree rape (sex offenses under the statute) was a Detained Sex Offender. The Court said that since the Respondent was in DOCCS custody for the reckless endangerment crime, the offense had been "the bases of the orders of commitment received by [DOCCS] in connection with an inmate's current term of incarceration". MHL § 10.03 (l). In this Court's view, this brief holding clearly stated the controlling principle.
In Matter of State of New York v. Robert F., 101 AD3d 11133 (2nd Dept 2012) the Court similarly found the Respondent was a Detained Sex Offender while serving a prison sentence for a prison contraband offense (a non-sex offense under Article 10). In doing so, however, in this Court's view, the Court added an unnecessary component to its determination, outlining what it believed was the relationship between the respondent's prior sex offense and subsequent prison contraband conviction. The Court said the respondent was "incarcerated for a 'related offense' because the appellant was convicted of attempted promoting prison contraband in the first degree, and sentenced thereon, while still incarcerated upon his underlying sex offense conviction, and there was no interruption in his incarceration between the terms imposed for his underlying sex offense conviction and the promoting prison contraband conviction". In this Court's view, whether the respondent in Robert F. had been sentenced while incarcerated on his prior sex offense conviction or whether there had been any "interruption" between his sex and prison contraband convictions was irrelevant. The respondent was a Detained Sex Offender because he was subject to orders of commitment in DOCCS at the time the petition was brought as required by the statute.
In State v. Claude McC. 122 AD3d 65 (2nd Dept 2014), app dismissed, 24 NY3d 1030, the respondent was convicted and sentenced to DOCCS for Criminal Possession of Stolen Property (a non-sex offense under Article 10) shortly after being released to post-release supervision for a sex offense conviction. The trial court found the stolen property conviction was not a "related offense" because the connection between the two crimes was "tenuous". 122 AD3d at 69. The Second Department found that the Respondent was serving a sentence for a "Related Offense" since he was in DOCCS custody for the stolen property crime on the date of the petition.
The Court then went on, however, to outline how the offenses were "related" because the stolen property crime occurred while the respondent was still serving a sentence for the sex offense and described how the sentence calculations for the initial sex crime and later property crime "retained a connection". 122 AD3d at 72-73. In this Court's view, as in the Second Department's decision in Robert F., which the Claude McC. Court relied on, most of this analysis was unnecessary. Pursuant to the plain terms of the statute and as the Court of Appeals explained in Rashid, the respondent in McC. was eligible for civil management because he was subject to orders of commitment to DOCCS at the time the petition was brought.
Finally, in State v. Phillip B., 138 AD3d 1124 (2nd Dept 2016) the Court touched on the same issue finding an assault conviction (which was a sex offense under Article 10 because of the allegation that it was sexually motivated) was a "related offense" to an earlier manslaughter conviction (which was also a sex offense under Article 10 because it was alleged to be sexually motivated) since the assault conviction was the basis for a DOCCS commitment order. Here, the Court's brief foray into the mechanics of these sentences was, in this Court's view, even more clearly unnecessary, since the Court said the Defendant was in custody for an Article 10 sex offense (Assault in the Second Degree as a sexually motivated felony) at the time the petition was brought. He was therefore clearly a Detained Sex Offender regardless of whether any of the offenses at issue were "related".
A "designated felony" committed after Article 10's effective date in 2007, which includes Assault in the Second Degree (MHL § 10.03 (f)), is a "sex offense" under Article 130 of the Penal Law (PL § 130.91) and a "sex offense" under Article 10 (MHL § 10.03 (p)) if it is "sexually motivated". A person serving a sentence for a sex offense is a Detained Sex Offender, regardless of the relationship of such a crime and sentence to any other crime or sentence. MHL § 10.03 (g) (1).
To summarize, the portion of the definition of "Related Offenses" which defines them as those "which are the bases for the orders of commitment received by the department of correctional services in connection with an inmates current term of incarceration" is not ambiguous. This Court's holding here is consistent with the plain meaning of the statute, its obvious policy rationale, the only Court of Appeals decision to address this issue, State v. Rashid, and the Fourth Department's holding in State v. Williams This Court's conclusion is also identical to that reached by the three appellate courts to have considered whether previously convicted sex offenders incarcerated in state prison for non-sex offenses are Detained Sex Offenders under Article 10.
To the extent the Second Department has suggested that the statute contains additional requirements beyond its plain terms and the Respondent argues that these additional requirements were not met in this case, this Court respectfully disagrees. Even presuming, however, that the additional requirements the Second Department has imposed in order for a Related Offense to be established are controlling, the result here would be the same. The instant case presents the same general fact pattern as what occurred in Claude McC.: a petition filed against a respondent who was incarcerated for the commission of a non-sex offense which was committed at the time he was serving a period of post-release supervision for a sex offense under Article 10. Under the holding in Claude McC., the non-sexual crime here was a Related Offense to the Respondent's earlier rape conviction.
The Respondent also points out what he contends is problematic language in the Petition. The Petition refers to the Defendant's assault and unlawful imprisonment convictions as "qualifying offenses" and at one point describes his assault conviction as a "qualifying sex offense" under Article 10. Petition, ¶ 14. The term "qualifying offenses" is not defined by Article 10. An offender must be "a detained sex offender who suffers from a Mental Abnormality" to be covered by the statute. MHL §10.03 (q). The Petition asserts that the Defendant qualifies for civil management in this case both because he was convicted of a sex offense under the statute (rape) and is a detained sex offender by virtue of his assault and unlawful imprisonment crimes.
The Petition's language describing Mr. S.'s non-sex offense convictions as qualifying offenses could have been clearer, since this language appears to connote that these crimes were sex offenses under Article 10, when they were obviously not. But that language clearly informs the Respondent what the basis of the Petition is by outlining how the rape, assault and unlawful imprisonment convictions qualify the Respondent for civil management. In this Court's view, the Respondent was not prejudiced by the use of the term "qualifying offenses" to describe Mr. S.'s most recent assault and unlawful imprisonment convictions, rather than, for example, "offenses qualifying the Respondent for sex offender civil management as a Detained Sex Offender."
The parties in this case and the Court are all well aware that Mr. S. must have been convicted of a sex offense to qualify for Article 10, that these two non-sexual offense felonies are not sex offenses and that the Respondent was convicted of a sex offense in 2004. Nor, in this Court's view, is the Respondent's argument that the State missed multiple opportunities to bring a petition prior to the date it was brought persuasive. In this Court's view, the Petition was timely.
For all those reasons, the motion is denied. Dated: June 17, 2021 Daniel Conviser, A.J.S.C.