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Conway v. Larry TT.

State of New York Supreme Court, Appellate Division Third Judicial Department


December 3, 2009

IN THE MATTER OF LARRY TT. JAMES CONWAY, AS SUPERINTENDENT OF ATTICA CORRECTIONAL FACILITY, ET AL., RESPONDENTS;
v.
LARRY TT., APPELLANT.
IN THE MATTER OF STATE OF NEW YORK, RESPONDENT, V LARRY TT., APPELLANT.

The opinion of the court was delivered by: Lahtinen, J.

(Proceeding No. 1.)

MEMORANDUM AND ORDER

(Proceeding No. 2.)

Calendar Date: October 21, 2009

Before: Cardona, P.J., Peters, Lahtinen, Kane and Stein, JJ.

Appeals (1) from an order of the Supreme Court (Garry, J.), entered September 19, 2008 in Tompkins County, which, in proceeding No. 1 pursuant to Mental Hygiene Law article 9 and/or Correction Law § 402, denied respondent's motion to dismiss, among other things, an application to have respondent involuntarily admitted to a psychiatric facility, and (2) from an amended order of said court (Mulvey, J.), entered July 2, 2009 in Tompkins County, which, among other things, in proceeding No. 2 pursuant to Mental Hygiene Law article 10, denied respondent's motion to dismiss the petition.

The extensive procedural background of these two related proceedings in which respondent, a convicted sex offender, was admitted to Central New York Psychiatric Center at the end of his prison term is set forth in the detailed decision of Supreme Court (Matter of Larry TT., 24 Misc 3d 1206[A], 2009 NY Slip Op 51286[U] [2009]). The record supports Supreme Court's determination that respondent's transfer -- which fell during the few months between the Court of Appeals' decision in State of N.Y. ex rel. Harkavy v Consilvio (7 NY3d 607 [2006]) and the effective date of the Sex Offender Management and Treatment Act (see L 2007, ch 7, §§ 1-2, codified as Mental Hygiene Law art 10) -- took place under the emergency provision of Correction Law § 402 (9). The required medical opinions were provided to support an emergency transfer and, notwithstanding the apparent mislabeling of some of the paperwork (cf. Matter of Thomas S., 58 AD3d 1063, 1065 [2009]), an Assistant Attorney General asserted the emergency provision as the ground for the transfer at a court appearance immediately following the transfer.

We further agree with Supreme Court that respondent is a "[d]etained sex offender" as defined in Mental Hygiene Law § 10.03 (g) (5) (see State of N.Y. ex rel. Harkavy v Consilvio, 8 NY3d 645, 651-652 [2007]; Matter of State of New York v Blair, ___ AD3d ___, ___, 887 NYS2d 389, 392 [2009]; People ex rel. David NN. v Hogan, 53 AD3d 841, 844 [2008], lv denied 11 NY3d 708 [2008]). Accordingly, the provisions of Mental Hygiene Law article 10 apply to respondent and a hearing should be held expeditiously as provided by that statute.

Cardona, P.J., Peters, Kane and Stein, JJ., concur.

ORDERED that the order and amended order are affirmed, without costs.

20091203

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