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State v. K.A.

Other Lower Courts

January 16, 2008

In the Matter of the Application of The State of New York, Petitioner
v.
K.A., Respondent.

Editorial Note:

This case is not published in a printed volume and its disposition appears in a table in the reporter.

COUNSEL

The attorneys in this proceeding are Anthony Miller, Esq. (from the Attorney General's Office) and David Tull, Esq. (from Mental Hygiene Legal Services).

OPINION

Eileen Bransten, J.

The State of New York moves to establish probable cause to believe that K.A. is a "sex offender requiring civil management" pursuant to Mental Hygiene Law ("MHL") Article 10, 10.06(k).

K.A. opposes the motion.

Background

As a result of the New York State Legislature's failure to pass one of five separate bills for the involuntary civil confinement of sex offenders, then-Governor George Pataki urged state officials to "push the envelope" as it concerned about-to-be-released state prisoners who had been incarcerated for sexual offenses. State ex rel. Harkavy on behalf of John Does 1 through 12 v. Consilvio, 10 Misc.3d 851, 853 (Sup.Ct. NY County 2005) ("Harkavy I"), revd. 29 A.D.3d 221 (1st Dept. 2006), revd. 7 N.Y.3d 607 (2006). State correction and mental health authorities, at the Governor's bidding, began evaluating inmates who were convicted of sexual offenses to determine if they should be civilly confined after their sentences expired. Harkavy I, 10Misc.3d, at 852. Initially, after their sentences were complete, 12 individuals were transferred from the New York State Department of Corrections to Manhattan Psychiatric Center ("Manhattan Psychiatric"), a non-secure Office of Mental Hygiene ("OMH") facility, and later more were sent to Kirby Forensic Psychiatric Center ("Kirby"), a secure facility.

The Deputy Director of the Mental Hygiene Legal Services ("MHLS"), Stephen J. Harkavy, brought a writ of habeas corpus pursuant to CPLR Article 70 on behalf of the 12 former inmates being held at Manhattan Psychiatric. Supreme Court (Silbermann, J.) sustained the writ of habeas corpus, conditionally discharged John Does 1 through 12 from further detention; and directed the Executive Director of Manhattan Psychiatric to allow for the examination of each of the petitioners by two independent court-appointed examining physicians. The court held that unless both examining physicians certified that petitioners were "mentally ill, in need of care and treatment at a psychiatric hospital, and [posed] a substantial threat of physical harm to themselves or others," they were to be immediately released. Harkavy I, 10Misc.3d, at 858.

The Appellate Division, First Department reversed, vacated the conditional release of John Does 1 through 12 and dismissed the petition. See, State ex rel. Harkavy on behalf of John Does 1 through 12 v. Consilvio, 29 A.D.3d 221 (1st Dept. 2006) .

The Court of Appeals thereafter reversed, fashioning a different remedy than that imposed by Supreme Court. The Court of Appeals explained: " * * * [W]e understand how in an attempt to protect the community from violent sexual predators, the State proceeded under the Mental Hygiene Law. We do not propose that these petitioners be released, nor do we propose to trump the interests of public safety. Rather we recognize that a need for continued hospitalization may well exist. We therefore order that those petitioners remaining in OMH custody be afforded an immediate retention hearing pursuant to article 9 of the Mental Hygiene Law - now controlling since they are no longer serving a prison sentence ( see Correction Law 404 [1]). As to future candidates for immediate psychiatric hospitalization, prior to the expiration of their term of imprisonment, the State must proceed pursuant to Correction Law 402, with all its attendant procedural requirements including court supervision, pretransfer notice and an opportunity to be heard within a reasonable period of time prior to the inmate's proposed release date." State of NY ex rel. Harkavy v. Consilvio, 7 N.Y.3d 607, 614 (2006).

While Harkavy I was still on appeal, MHLS brought a second habeas corpus petition on behalf of John Does 13 through 22, who alleged that they were illegally transferred to Kirby ostensibly to "receive treatment for mental illnesses which may have contributed to their predatory behavior." State of NY ex rel. Harkavy v. Consilvio, 11 Misc.3d 1053 (A), 814 N.Y.S.2d 892, 2006 WL 346534 (Sup.Ct. NY County 2006) ("Harkavy II"), revd. 34 A.D.3d 67 (1st 2006), revd. 8 N.Y.3d 645 (2007). Respondent Eileen Consilvio, Executive Director of Kirby opposed the application, asserting that petitioners were properly transferred to Kirby pursuant to Article 9 of the Mental Hygiene Law. Id., at * 1.

Once again, Supreme Court (Silbermann, J.) sustained the writ of habeas corpus, this time, however, ordering that petitioners were to receive expedited individual hearings "on the issue of the Petitioners' alleged need for continued psychiatric hospitalization." In addition, the court ordered that if respondent refused to produce petitioners for hearings, they would be discharged from further detention. State of NY ex rel. Harkavy v. Consilvio, 2006 WL 346534, at * 7.

The Appellate Division, First Department once again reversed, only itself to be reversed again by the Court of Appeals. See, State of NY ex. rel. Harkavy v. Consilvio, 34 A.D.3d 67 (1st Dept. 2006), revd. 8 N.Y.3d 645 (2007). The Court of Appeals explained that after issuance of the lower court decisions, the legislature passed the "Sex Offender Management and Treatment Act,"

"which creates a new Mental Hygiene Law article 10 [providing] that offenders convicted of enumerated crimes, including sex offenses, may be transferred to psychiatric hospitals after their release from prison if certain procedures are followed. Article 10 establishes a multi-step process that may lead to the civil commitment of some offenders and the outpatient supervision and treatment of others."

State of New York ex rel. Harkavy v. Consilvio, 8 N.Y.3d, at 651.

In remanding the matter to Supreme Court for further proceedings, the Court of  Appeals held:

"Like the Harkavy I patients, the petitioners here were improperly committed under Mental Hygiene Law article 9. As the State concedes, based on our Harkavy I precedent, the order of the Appellate Division must be reversed and the matter remitted to Supreme Court to give petitioners appropriate commitment hearings. In light of the new legislation, we conclude that those hearings will be conducted in accordance with article 10; petitioners are entitled to have a jury determine the issue of mental abnormality' and, if necessary, a court will decide if civil confinement is warranted * * * ."

State of NY ex rel. Harkavy v. Consilvio, 8 N.Y.3d, at 652.

The Court of Appeals, in a footnote, added: "We express no view on the propriety of the standards or procedures adopted in the new legislation. Petitioners are free to raise any objections they deem appropriate upon remittal." State of ...


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