NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT
December 22, 2009
IN RE THE STATE OF NEW YORK, PETITIONER-APPELLANT,
MUSTAFA RASHID, RESPONDENT-RESPONDENT.
Order, Supreme Court, New York County (Daniel P. Conviser, J.), entered on or about July 1, 2009, which granted respondent's motion to dismiss the petition, unanimously affirmed, without costs.
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 Official Reports.
Tom, J.P., Buckley, Catterson, Freedman, Abdus-Salaam, JJ.
Respondent was not subject to civil management pursuant to Mental Hygiene Law Article 10 where he had served his sentence for a 1988 rape and sodomy and was on parole for a non-sexual offense and, in September 2008, the Division of Parole gave notice identifying him as a possible "detained sex offender" nearing release from custody. The different consequences of a Sexual Offender Registration Act determination and the possibility of involuntary civil commitment under Mental Hygiene Law Article 10 (compare People v Knox, 12 NY3d 60 , with Mental Hygiene Legal Servs. v Spitzer, 2007 WL 4115936 [SD NY 2007], affd 2009 WL 579445 [2d Cir 2009]), as well as the specific definition in the latter regarding which sentences other than those for sex offenses may be considered in determining an offender's eligibility for civil management (see generally People v Finley, 10 NY3d 647, 655 ), render Penal Law § 70.30 inapplicable for the purpose of merging the sentence for the rape into respondent's subsequent sentence for the non-sexual offense (cf. People v Buss, 11 NY3d 553 ). Contrary to the State's contention, Penal Law § 70.30 and Mental Hygiene Law Article 10 are not so related that they must be harmonized (cf. Rector, Church Wardens & Vestrymen of St. Bartholomew's Church v Committee to Preserve St. Bartholomew's Church, 84 AD2d 309, 313 , appeal dismissed 56 NY2d 645 ).
We have considered the State's remaining contentions and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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