The opinion of the court was delivered by: Dineen Riviezzo, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
In this proceeding brought under Article 10 of the Mental Hygiene Law, respondent moves to dismiss the petition pursuant to CPLR 3211. For the reasons which follow, the motion is denied.
Respondent argues that this court lacks jurisdiction, that the petition fails to state a cause of action, and that the proceeding is not ripe for review. Respondent maintains that because a MHL §10.05 (b) notice did not precede the filing of the current petition, the proceeding is defective under Article 10 of the Mental Hygiene Law. Under Article 10, when a sex offender is nearing an anticipated release from an agency with jurisdiction, that agency "must" give notice of the impending release (or, in the case of the Division of Parole, "may" give notice) to the Attorney General and Office of Mental Health (OMH) (Mental Hygiene Law § 10.05 [b]). The statutory 10.05 (b) notice is required to be served at least 120 days prior to the anticipated release, although the statute expressly provides that no penalty or invalidity will result from a failure to comply with that time period (Mental Hygiene Law § 10.05 [b]; see Mental Hygiene Law § 10.08 [f]). After receiving the 10.05 (b) notice, OMH staff interviews the person and reviews the person's records to determine whether the matter should be referred to a case review team for further evaluation (see Mental Hygiene Law § 10.05 [d]). The case review team is required to make a recommendation to the Attorney General with notice to respondent within 45 days (see Mental Hygiene Law § 10.05 [g]). Within 30 days of receiving the case review team's findings, the Attorney General's Office determines whether a sex offender civil management petition should be filed(see Mental Hygiene Law § 10.06 [a]).
Because the timing of the events at issue here is crucial to the arguments raised and the determination of the motion, the court has reconstructed the relevant events, which are set forth as follows:
8/4/04 Respondent convicted of attempted sexual abuse in the first degree and sentenced to a term of incarceration of 2 to 4 years.
9/19/06 Respondent transferred from Mid-State Correctional Facility to Central New York Psychiatric Center (CNYPC) under Corrections Law § 402.
4/19/07 Petition for MHL Art. 10 relief is filed in Oneida County. Respondent is committed under MHL Art 9. (Oneida County Petition)
4/20/07 Post release supervision (PRS) commences, respondent in custody of Office of Mental Health (OMH) under MHL Article 9 as permitted by Corrections Law § 404.
9/10/07 Respondent transferred to Bronx Psychiatric Center (BPC) under MHL § 9.27.
10/11/07 Stipulation filed in Oneida County withdrawing first Art. 10 proceeding "with prejudice." (October 11, 2007 Stipulation)
11/20/07-Respondent's application for conversion of his status from involuntary to voluntary granted. See MHL §§ 9.13, 9.23.
4/8/08 Division of Parole gives notice to Attorney General and OMH of anticipated release to community ...