Appeal from an order (denominated order and judgment) of the Supreme Court, Allegany County (Timothy J. Walker, A.J.), entered June 12, 2009 in a proceeding pursuant to Mental Hygiene Law article 10. The order granted respondent's motion to dismiss the petition and ordered respondent's release.
The opinion of the court was delivered by: Peradotto, J.
PRESENT: MARTOCHE, J.P., SMITH, PERADOTTO, CARNI, AND GREEN, JJ.
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is denied, the petition is reinstated, and the matter is remitted to Supreme Court, Allegany County, for a trial in accordance with Mental Hygiene Law § 10.07.
In this appeal, we are confronted with the issue whether respondent is a detained sex offender within the meaning of Mental Hygiene Law § 10.03 (g) (5). Our resolution of the issue requires consideration of the interplay between articles 9 and 10 of the Mental Hygiene Law and the implications of the decisions of the Court of Appeals in State of N.Y. ex rel. Harkavy v Consilvio (7 NY3d 607) (hereafter, Harkavy I) and State of N.Y. ex rel. Harkavy v Consilvio (8 NY3d 645) (hereafter, Harkavy II). Supreme Court concluded that respondent was not a detained sex offender within the meaning of Mental Hygiene Law § 10.03 (g) (5) because he was not "legally detained." We conclude that reversal is required because respondent is a detained sex offender under a plain reading of the statute.
Factual Background and Procedural History
In May 1997, respondent was convicted upon a plea of guilty of one count of sexual abuse in the first degree (Penal Law § 130.65 ) and was sentenced to a term of imprisonment, to be followed by a period of probation. Respondent thereafter violated the conditions of his probation, whereupon his probation was revoked and he was sentenced to a term of imprisonment of 31/2 to 7 years on the sexual abuse conviction.
Shortly before he completed serving his prison term, respondent was examined by two physicians from the Office of Mental Health (OMH) for the purpose of determining whether he was subject to involuntary commitment at an OMH facility pursuant to article 9 of the Mental Hygiene Law. The OMH physicians determined that respondent suffered from pedophilia, a mental illness; that he posed a substantial threat of harm to others; and that involuntary hospitalization was warranted. Thereafter, the prison superintendent completed an application for involuntary admission on medical certification, pursuant to Mental Hygiene Law § 9.27. When his prison term expired, in July 2006, respondent was released and was transferred directly to the Central New York Psychiatric Center (CNYPC), where he was involuntarily committed for an initial period of 60 days (see § 9.31 [a]).
In August 2006, OMH notified respondent that it intended to seek court authorization to retain him for an additional six-month period and, on September 5, 2006, CNYPC made an application in Supreme Court for a retention order (see Mental Hygiene Law § 9.33 [a]). In response, respondent requested a hearing to determine the need for his continued involuntary hospitalization, and sought discovery and the appointment of a medical expert.
During the pendency of the article 9 proceeding, the Legislature enacted the Sex Offender Management and Treatment Act, codified as article 10 of the Mental Hygiene Law, which became effective on April 13, 2007 (see L 2007, ch 7). On June 5, 2007, the Court of Appeals issued its decision in Harkavy II (8 NY3d at 651-652), determining that convicted sex offenders who were directly transferred to psychiatric hospitals under article 9 at the conclusion of their sentences were entitled to the procedural protections set forth in the newly-enacted article 10. Approximately two weeks after the decision in Harkavy II was issued, an OMH case review team referred respondent for a psychiatric evaluation to determine whether he was a "sex offender requiring civil management" under Mental Hygiene Law article 10 (§ 10.05 [e]). The OMH psychiatrist concluded that respondent suffered from a mental abnormality as that term is defined in Mental Hygiene Law § 10.03 (i), i.e., pedophilia, and that he was likely to commit another sex offense in the future.
In October 2007, OMH provided the Attorney General with notice that respondent may be a detained sex offender who was nearing anticipated release (see Mental Hygiene Law § 10.05 [b]) and, on January 10, 2008, the Attorney General commenced this article 10 proceeding by filing a sex offender civil management petition (see § 10.06 [a]). Following a hearing, Supreme Court, Oneida County, determined that there was probable cause that respondent was a sex offender requiring civil management under article 10, and the court set a date for trial. The matter was subsequently transferred to Allegany County, upon respondent's request. While the article 10 proceeding was pending, the article 9 proceeding was discontinued by stipulation of the parties.
Respondent then moved to dismiss the article 10 petition contending, inter alia, that he was not a detained sex offender within the meaning of Mental Hygiene Law § 10.03 (g) (5) because he was not lawfully in the custody of OMH at the commencement of the proceeding. The court granted respondent's motion and ordered respondent's release, based on its conclusion that article 10 applies only to sex offenders who are legally detained. We conclude that the order should be reversed.
The Legislature enacted Mental Hygiene Law article 10, which governs the involuntary commitment of certain sex offenders to psychiatric facilities upon the conclusion of their incarceration (§ 10.01 [b]), in response to the decision of the Court of Appeals in Harkavy I (see Sponsor's Mem, Bill Jacket, L 2007, ch 7, at 8). In Harkavy I (7 NY3d at 610), the Court of Appeals invalidated the practice of involuntarily transferring convicted sex offenders directly from prison to mental health facilities pursuant to Mental Hygiene Law article 9. The Court wrote that, "[i]n the absence of specific statutory authority governing the release of felony offenders from prison ...