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State v. DJ

New York Supreme Court, Bronx County

February 9, 2009


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:

Procedural Time Line

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 pursuant to § 10.05(b).

4/14/08 Notice to respondent of referral to Case Review Team (CRT) received by respondent. See MHL § 10.05(e).

4/23/08 OMH psychiatric interview held. See MHL § 10.05(e).

5/2/08 OMH psychiatric report completed; notice given to respondent that he is a sex offender in need of civil management under MHL § 10.05(g)

5/20/08 PRS expires.

Respondent remains voluntary patient in BPC.

Article 10 petition filed before Justice Joseph Dawson in Bronx County.

7/10/08 Petition dismissed by Justice Dawson without prejudice to an application to vacate the prior "with prejudice" dismissal in Oneida County.

9/8/08 Hon. Justice Siegal (Oneida County) vacates stipulation of 10/11/2007 and substitutes dismissal "without prejudice" nunc pro tunc by stipulation.

10/2/08 The instant Article 10 petition is filed.

Petitioner thus filed the current petition after obtaining vacature of the October 11, 2007 stipulation which erroneously recited that the Oneida County petition was withdrawn "with prejudice." However, clearly no "new" 10.05 (b) notice was filed. Respondent argues that the present petition is defective in that no new notice was given by OMH*fn1 under MHL § 10.05 (b) before the instant petition was filed instead, the petition is predicated on the April 8, 2008 notice provided to OMH and the Attorney General's Office by the Division of Parole, which preceded the petition filed before Justice Dawson. In addition, respondent argues that the petition does not state a cause of action, and is not ripe for review, because the respondent is not "nearing an anticipated release date" within the meaning of MHL § 10.05 (b).

In arguing that the petition is not defective, petitioner asserts that the present petition is properly predicated upon the earlier MHL § 10.05 (b) notice. The crux of the divergent arguments raised here is that respondent argues that there is no statutory basis for allowing multiple petitions to be based on a single prior MHL § 10.05(b) notice, whereas the petitioner contends that there is no impediment to doing so. Under respondent's view of the statutory scheme, each 10.05 (b) notice should result in only one petition, and if a need arises for a second petition to be brought, that second petition should be based on a second MHL § 10.05 (b) notice, the convening of a second case management team, the conducting of a second psychiatric interview and assessment, and only after complying with the foregoing, the filing of a subsequent petition.

This Court need not determine whether an Article 10 proceeding is "commenced" by the service of the notice under MHL § 10.05, or whether an MHL § 10.05 (b) notice must precede the filing of an Article 10 petition in court. It was conceded by respondent, and the court finds, that with respect to the proceeding before Justice Dawson, the MHL § 10.05 (b) notice was given properly and timely by the Division of Parole, which was an agency with jurisdiction, and the petition was timely filed on the day that respondent's post release supervision expired. Respondent does not contend that this prior proceeding was in any way procedurally defective, or that the Court lacked jurisdiction. The petition brought before Justice Dawson was dismissed only because the prior Article 10 proceeding in Oneida County was erroneously dismissed with prejudice. Again, it is beyond peradventure that the prior proceeding in Oneida County should have been dismissed without prejudice. Justice Dawson thus dismissed the petition without prejudice to an application to correct the prior order, and it was clear that a further petition could be filed once the error was rectified.

In the present context, and under the peculiar facts of this case, where the previous petition before Justice Dawson was dismissed due to a mutual error by petitioner's and respondent's counsel in mis-designating the dismissal in Oneida County as "with prejudice," and where it is conceded that the prior petition before Justice Dawson was properly brought following the statutory review process including the service of a 10.05 (b) notice by an agency with jurisdiction, the State should not be required to commence the entire review process anew from the point of service of a new 10.05 (b) notice. No rational purpose would be served by requiring it. The filing and service of the instant petition is sufficient under the peculiar facts of this proceeding.

Because no "new" MHL § 10.05 (b) notice needed to be served nor the entire review process be repeated under the facts of this case, this court need not reach the argument raised by respondent that since OMH is currently the only agency with jurisdiction (due to the fact that respondent is a voluntary patient under its care, and that the post-release supervision has expired), this petition can not be served based on the April 8, 2008 10.05 (b) notice served by the Division of Parole, an agency with jurisdiction during respondent's period of post release supervision.*fn2

Lastly, respondent argues that no Article 10 proceeding can lie at this juncture, as respondent is not nearing an anticipated release date. Respondent contends that as a voluntary patient under Article 9, who has not sought release under MHL § 9.13 (b), there is no anticipated release date. Respondent maintains that should he seek release, BPC would in all likelihood seek to retain him for treatment for an additional one year period under provisions of Article 9 which allow for involuntary retention. The statute defines release (see MHL 10.01 [m]), but does not define what is meant by "nearing" an anticipated release date. The statute, as noted above, contains some precatory language requiring a 10.05 (b) notice to be served at least 120 days before the anticipated release date, but does not specify the earliest date upon which such a notice may be served. At least one court has held that the fact that respondent was several years from anticipated release did not prohibit the commencement of the proceeding, nor divest the court of jurisdiction. (Matter of State of New York v Swartz, 18 Misc 3d 594[Sup. Ct., Chenango County (Garry, J.).]) Indeed, precisely because respondent, as a voluntary patient, could seek release at any time, it is impossible to state that this proceeding was brought prematurely. As respondent maintains, upon respondent's request for release, BPC would have only 72 hours to seek to retain respondent, and certainly respondent could be released should BPC fail to take action to retain him, or should a court deny BPC's application. Petitioner's right to proceed under MHL Article 10 should not depend upon whether BPC may or may not seek, or obtain, an involuntary retention order under MHL Article 9.

The remaining arguments are found to be without merit.

The motion to dismiss is denied in its entirety.

This is the order of the Court.

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