Appeal from an order of the Supreme Court, Chautauqua County (Timothy J. Walker, A.J.), entered June 8, 2008 in a proceeding pursuant to Mental Hygiene Law article 10. The order denied respondent's motion to dismiss the petition.
The opinion of the court was delivered by: Pine, 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 Official Reports.
PRESENT: CENTRA, J.P., FAHEY, CARNI, GREEN, AND PINE, JJ.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
At issue on this appeal is the constitutionality of Mental Hygiene Law article 10 as applied to persons such as respondent who were convicted of certain designated felonies that were sexually motivated and were committed before the effective date of article 10 (§ 10.03 [f], [g] ). Because sexual motivation was not an element of the underlying designated felonies, article 10 requires that the sexual motivation be established at the civil commitment trial (§ 10.07 [c]), where the standard of proof is clear and convincing evidence (§ 10.07 [d]). Respondent contends that the application of the clear and convincing standard instead of the reasonable doubt standard to the determination of the issue of sexual motivation violates his constitutional rights to due process of law and equal protection of the laws (US Const Amend XIV; NY Const, art I, §§ 6, 11). We reject those contentions and conclude that Supreme Court properly denied his motion to dismiss the article 10 petition.
Effective April 13, 2007, the New York Legislature enacted the Sex Offender Management and Treatment Act ([SOMTA] L 2007, ch 7). Section 10.01 of the Mental Hygiene Law, entitled "Legislative findings," states that the Legislature finds "[t]hat recidivistic sex offenders pose a danger to society that should be addressed through comprehensive programs of treatment and management. Civil and criminal processes have distinct but overlapping goals, and both should be part of an integrated approach that is based on evolving scientific understanding, flexible enough to respond to current needs of individual offenders, and sufficient to provide meaningful treatment and to protect the public."
The specified goals of the legislation were "to protect the public, reduce recidivism and ensure [that] offenders have access to proper treatment" (§ 10.01 [c]), and the Legislature recognized "[t]hat sex offenders in need of civil commitment are a different population from traditional mental health patients, who have different treatment needs and particular vulnerabilities" (§ 10.01 [g]).
In his Program Bill Memorandum, Governor Spitzer summarized the purpose of SOMTA: "This bill enacts [SOMTA], which establishes comprehensive reforms to enhance public safety by allowing the State to continue managing sex offenders upon the expiration of their criminal sentences, either by civilly confining the most dangerous recidivistic sex offenders, or by permitting strict and intensive parole supervision of offenders who pose a lesser risk of harm. Treatment is mandated during both criminal and civil confinement and during the period of strict supervision. It also creates a new crime of a Sexually Motivated Felony,' and provides for enhanced terms of post-release [sic] supervision for all persons who commit felony sex offenses" (Bill Jacket, L 2007, ch 7, at 5; see also Senate Introducer Mem in Support, Bill Jacket, L 2007, ch 7, at 19).
Pursuant to Mental Hygiene Law § 10.07, a detained sex offender may be civilly committed if it is determined by clear and convincing evidence after a trial that the offender suffers from a mental abnormality, and the court thereafter concludes that the offender is a dangerous sex offender requiring confinement (§ 10.07 [d], [f]). "A [d]etained sex offender' means a person who is in the care, custody, control, or supervision of an agency with jurisdiction, with respect to a sex offense or designated felony," including individuals who have been convicted of a sex offense as defined in section 10.03 (p), and those convicted of a designated felony that was sexually motivated and committed prior to the effective date of article 10 (§ 10.03 [g] , ). A sex offense as defined in section 10.03 (p) (1) includes an act or acts that constitute any felony defined in article 130 of the Penal Law, and a designated felony includes burglary in the second degree (§ 10.03 [f]). "[A] [d]angerous sex offender requiring confinement' means a person who is 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" (§ 10.03 [e]).
At the same time that the Legislature enacted article 10, it created a new crime under article 130 of the Penal Law, entitled sexually motivated felony (§ 130.91 [L 2007, ch 7, § 29]). That legislation also became effective on April 13, 2007, and subdivision (1) of section 130.91 provides that "[a] person commits a sexually motivated felony when he or she commits [any of the designated felonies set forth in section 10.03 (f)] for the purpose, in whole or substantial part, of his or her own direct sexual gratification." Those individuals who commit any of the designated felonies after the effective date of article 10 will be included in the scope of article 10 only if they were convicted of the newly enacted sexually motivated felony (see Mental Hygiene Law § 10.03 [g] ; [p]). For those individuals, the element of sexual motivation, as with any element of a criminal offense, will have to be established beyond a reasonable doubt. With respect to those individuals who committed designated felonies before the effective date of article 10, however, the element of sexual motivation will have to be established at the civil commitment trial, where the applicable standard of proof is the lower clear and convincing standard (see § 10.03 [g] ; § 10.07 [d]).
The facts of this case are not in dispute and may be stated briefly. On June 20, 2005, respondent was convicted upon a plea of guilty of two counts of burglary in the second degree (Penal Law § 140.25 ) and was sentenced to concurrent terms of incarceration. As respondent neared his release date, petitioner filed a sex offender civil management petition contending, inter alia, that the underlying facts of respondent's crimes revealed a sexual motivation. Petitioner alleged that respondent had admitted that he burglarized various homes with the intent to molest young children. Although respondent never actually molested the children, he admitted that, on one occasion, he had removed the clothes and diaper from a two-year-old child, but fled the scene when the child began to cry.
Respondent has a criminal history replete with evidence of sexually motivated offenses. At age 15, he sexually abused two eight-year-old boys in his neighborhood. At age 19, he was observed masturbating in front of young boys while at a YMCA, and he violated his sentence of probation by refusing sex offender treatment. When respondent was 21, he was arrested for trespassing at a church and daycare facility and was found to be in possession of a photo album containing the pictures of small children who attended the church and daycare. Shortly after that arrest, respondent engaged in the conduct that resulted in the burglary ...