The opinion of the court was delivered by: Kavanagh, J.
Calendar Date: January 15, 2010
Before: Cardona, P.J., Mercure, Malone Jr., Kavanagh and McCarthy, JJ.
Appeal from an order of the Supreme Court (Egan Jr., J.), entered October 23, 2008 in Albany County, which, in a proceeding pursuant to Mental Hygiene Law article 10, found respondent to be a dangerous sex offender and confined him to a secure treatment facility.
In March 1983, respondent was convicted by verdict in Albany County of rape in the first degree and subsequently sentenced to 121/2 to 25 years in prison.*fn1 While incarcerated, defendant, as a result of mental health issues, was transferred to psychiatric hospitals operated by the Office of Mental Health (hereinafter OMH) on nine separate occasions where he received in-patient care and treatment.*fn2 On each occasion, while at an OMH facility, respondent was charged with engaging in inappropriate sexual behavior and later returned to the custody of the Department of Correctional Services (hereinafter DOCS). Finally, on May 20, 2004, respondent was transferred for the last time by DOCS to OMH and admitted to the Central New York Psychiatric Center on an involuntary basis.
Two months later, respondent, while still a patient at Central New York Psychiatric Center, was conditionally released by DOCS to the Division of Parole and, as a condition of his parole, placed in the Capital District Psychiatric Center on an involuntary basis pursuant to Mental Hygiene Law § 9.27. In 2005, while still on parole, respondent's patient status was converted from involuntary to voluntary pursuant to Mental Hygiene Law §§ 9.13 and 9.21. Two years later, in August 2007, the Division of Parole notified the Attorney General and the Commissioner of Health that respondent was a sex offender about to be released from parole supervision and, due to his psychiatric history, may require civil confinement (see Mental Hygiene Law § 10.05 [b]). In response to this notification, a licensed psychologist, on behalf of OMH, examined respondent and diagnosed him with a mental abnormality based upon his finding that respondent suffered from an antisocial personality with a schizoaffective bipolar disorder.*fn3 When OMH's case review team determined that respondent was a sex offender requiring civil confinement, petitioner commenced this proceeding pursuant to Mental Hygiene Law article 10 to have respondent adjudicated a dangerous sex offender and committed to a secure treatment facility (see Mental Hygiene Law § 10.06 [a]).
While not disputing his status as a detained sex offender (see Mental Hygiene Law § 10.03 [g]), respondent moved to dismiss this petition on the ground that when the petition was filed, he was a sex offender who had been admitted pursuant to Mental Hygiene Law article 9 to an OMH psychiatric hospital near the completion of his term of imprisonment and, as long as he retained that status, he could not be subject to Mental Hygiene Law article 10 civil confinement. Respondent also argues that petitioner has failed to demonstrate that his treatment needs would be met by placing him in a secure treatment facility pursuant to such a proceeding. Supreme Court held a probable cause hearing (see Mental Hygiene Law § 10.06 [g]) and, at the end of that proceeding, found that there was "no inherent incompatibility" between articles 9 and 10, and denied respondent's motion to dismiss the petition. It also found that there was probable cause to believe that respondent was a sex offender requiring civil management and ordered that he be placed in a secure treatment facility to await trial (see Mental Hygiene Law § 10.06 [k]).
A trial was subsequently conducted and a jury found that it had been established by clear and convincing evidence that respondent was a detained sex offender who suffered from a mental abnormality (see Mental Hygiene Law § 10.07). Supreme Court then conducted a dispositional hearing and concluded that respondent had a mental abnormality involving a strong predisposition to commit sex offenses, such that he was likely to be a danger to others if not confined to a secure facility (see Mental Hygiene Law § 10.07 [f]). Respondent now appeals from the order that incorporated that finding and directed his commitment to a secure treatment facility.
To qualify as a dangerous sex offender requiring civil confinement, an individual must be "a detained sex offender suffering from a mental abnormality involving such a strong predisposition to commit sex offenses, and such an inability to control behavior, that the person is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility" (Mental Hygiene Law § 10.03 [e]).*fn4
Respondent, as previously noted, does not dispute that he is a detained sex offender. However, he claims that since he is a convicted sex offender who was admitted directly from prison to an OMH psychiatric hospital for treatment pursuant to Mental Hygiene Law article 9, petitioner may not seek to alter that status by commencing a Mental Hygiene Law article 10 civil confinement proceeding. In that regard, respondent relies on a provision in article 10 classifying him as a detained sex offender based on his article 9 patient status, which specifically provides that "the provisions of this article shall not be deemed to shorten or lengthen the time for which such person may be held pursuant to [article 9]" (Mental Hygiene Law § 10.03 [g] ).
Initially, we note that the statute establishing the criteria by which an individual may be subjected to Mental Hygiene Law article 10 civil confinement does not, by its terms, exclude sex offenders who have been admitted to OHM psychiatric hospitals pursuant to Mental Hygiene Law article 9.*fn5 In addition, the provision relied upon by respondent in his motion to dismiss was part of a statutory scheme specifically enacted by the Legislature to address due process issues caused by the method employed by the state in dealing with detained sex offenders who were about to be released from prison and posed a serious threat to the public (see State of N.Y. ex rel. Harkavy v Consilvio, 7 NY3d 607 ). Nothing in this statute indicates any intent to exempt from civil confinement detained sex offenders simply because they had been admitted to an OMH psychiatric hospital pursuant to article 9 to receive treatment for their psychiatric disorders.
In addition, there are six categories by which an individual can be classified as a detained sex offender who then may be subject to civil confinement (see Mental Hygiene Law § 10.03 [g] -). These provisions are not mutually exclusive and respondent, based upon his criminal record and institutional history, qualifies as a detained sex offender under at least two of them. In one he qualifies because he was convicted of a sex offense and, at the time the petition was brought, was "a patient in a hospital operated by [OMH], and who was admitted directly to such facility pursuant to [Mental Hygiene Law] article 9" (Mental Hygiene Law § 10.3 [g] ). In another, he qualifies as a detained sex offender because he was convicted of a designated sex offense and, at the time this petition was commenced, was "subject to supervision by the division of parole" (Mental Hygiene Law § 10.3 [g] ). Since the provision relied upon by respondent in his motion to dismiss only applies to detained sex offenders hospitalized pursuant to article 9, it cannot serve as a bar to an article 10 civil confinement proceeding based on respondent's status as a detained sex offender because he is a convicted rapist under parole supervision (Mental Hygiene Law § 10.3 [g] ).
In any event, we are unpersuaded by respondent's argument that the language of Mental Hygiene Law § 10.03 (g) (5) somehow limits petitioner's ability to commence this civil confinement proceeding.*fn6 Such an interpretation is, in our view, inconsistent with State of N.Y. ex rel. Harkavy v Consilvio (8 NY3d 645 ; see generally People ex rel. David NN. v Hogan, 53 AD3d 841 , lv denied 11 NY3d 708 ; see also Matter of Larry TT., 68 AD3d 1229, 1229-1230 ), and would, if adopted, severely limit and, in many instances, completely eliminate any application of the civil confinement process to parolees who remain under the supervision of the Division of Parole but have been admitted for treatment to OMH psychiatric hospitals pursuant to Mental Hygiene Law article 9. To so limit the application of this statute would be at odds with the legislative objective of providing the public with a measure of protection from dangerous sex offenders and, at the same time, insure that these offenders receive treatment designed to reduce their risk of recidivism (see generally People v Buss, 11 NY3d 553, 558 ).
Turning to respondent's arguments regarding his placement at a secure treatment facility, he does not challenge the sufficiency of the proof submitted by petitioner establishing that he was a dangerous sex offender requiring confinement, but argues that he should have been allowed to introduce expert testimony to the effect that his clinical needs would best be served by placement at an OMH psychiatric hospital as opposed to a Mental Hygiene Law article 10 secure treatment facility. However, once Supreme Court determined that respondent was a dangerous sex offender requiring confinement -- and we find that it did not err in making that determination (see Matter of State of New York v Derrick B., 68 AD3d 1124, 1127 ) -- it was required to commit respondent "to a secure treatment facility for care, treatment, and control until such time as he or she no longer requires confinement" (Mental Hygiene Law § 10.07 [f]; see Matter of State of New York v ...