The opinion of the court was delivered by: Smith, J.
This opinion is uncorrected and subject to revision before publication in the New York Reports.
Article 10 of the Mental Hygiene Law, enacted in 2007, provides that certain imprisoned sex offenders may be transferred to mental hospitals, rather than being released, when their prison terms expire. The statute raises important questions concerning the procedural and substantive rights of the prisoners to whom it applies, but those questions are not before us in this case. We have here the narrower issue of whether the statute applies to a particular class of prisoners: those who were incarcerated for violating the conditions of a term of post release supervision (PRS) that was improperly added to their sentences by the Department of Correctional Services (DOCS) without court authorization. We hold that these prisoners are within the coverage of the statute, which we read as applying to offenders actually imprisoned, even if the procedure that led to their imprisonment was flawed.
Both of these cases involve men convicted of serious sex crimes -- assaults of vulnerable strangers on the street. Joseph II assaulted a child, Humberto G. a developmentally disabled adult. Both were sentenced to imprisonment. Both were required by statute to be sentenced also to a term of PRS (see Penal Law § 70.06 ; § 70.45). However, as happened in a number of cases before our decisions in Matter of Garner v New York State Dept. of Correctional Servs. (10 NY3d 358 ) and People v Sparber (10 NY3d 457 ), the sentencing court failed to impose the PRS term. DOCS nevertheless included PRS in its record of each man's sentence -- a practice we decided in Garner was unlawful.
Joseph completed his prison sentence in August 2006, and Humberto completed his in January 2007. Both men began their improperly-imposed PRS terms -- not in the community, but in a psychiatric hospital. Mental Hygiene Law article 10 had not then been enacted, but Joseph was involuntarily committed to a hospital under article 9 of the Mental Hygiene Law (Mental Hygiene Law § 9.27), and Humberto committed himself voluntarily, also under article 9 (Mental Hygiene Law § 9.13). Both, while in the hospital, violated the terms of their PRS -- Joseph by trying to escape, Humberto by assaulting a fellow patient -- and both were returned to prison.
Article 10, which created a new procedure for the confinement of sex offenders on the expiration of their prison terms, became effective on April 13, 2007. At first the State took no action under the new statute in either Joseph's or Humberto's case, presumably because there seemed no imminent prospect that either would be released. But our April 2008 decision in Garner changed that, making clear that the PRS terms that had allowed the State to reincarcerate Joseph and Humberto were unlawful. Correction Law § 601-d and Penal Law § 70.85, enacted in response to Garner and Sparber and effective June 30, 2008, effectively give prosecutors in such cases a choice either to seek resentencing or to forego PRS, and in the autumn of 2008 the prosecutors in Joseph's and Humberto's cases chose the latter option. Faced with the prospect that the men would soon be freed, the State began article 10 proceedings, asking that each man be found "a sex offender requiring civil management" and be held in custody past his scheduled release date.
Joseph and Humberto contended that article 10 did not apply to them. They asserted that they were not "detained sex offenders" within the meaning of that article, because their PRS terms, and thus their imprisonment resulting from violations of PRS conditions, were unlawful. Both succeeded below, using different procedural vehicles. Joseph, after his release from custody was stayed under article 10, began a habeas corpus proceeding, which Supreme Court dismissed; the Appellate Division reversed and granted the writ (People ex rel. Joseph II v Superintendent of Southport Correctional Facility, 59 AD3d 921 [3d Dept 2009]). Humberto made a motion to dismiss the article 10 proceeding against him, which Supreme Court granted; the Appellate Division affirmed (Matter of State of New York v Humberto G., 65 AD3d 690 [2d Dept 2009]). We granted leave to appeal in both cases, and we now reverse.
As these cases illustrate, the State's efforts to confine certain sex offenders whose prison terms have expired predate the enactment of Mental Hygiene Law article 10. The State formerly proceeded in a number of cases, as it did in Joseph's, under Mental Hygiene Law article 9, which contains provisions for the involuntary admission to mental hospitals of people who are mentally ill and in need of involuntary care and treatment (see Mental Hygiene Law §§ 9.27, 9.31). We held, however, in State of N.Y. ex rel. Harkavy v Consilvio (7 NY3d 607 ) (Harkavy I) that the State was required to proceed in such cases under Correction Law § 402, a statute applicable to prison inmates believed to be mentally ill, rather than the more general provisions of article 9.
Evidently believing that section 402 procedures were inadequate to protect the public, the Legislature responded to Harkavy I by enacting article 10, a statute specifically designed to deal with sex offenders who are completing their prison terms. The statute sets out procedures for determining whether a "detained sex offender" is a "sex offender requiring civil management" -- a term defined as "a detained sex offender who suffers from a mental abnormality" (Mental Hygiene Law § 10.03 [q]). A subcategory of "sex offender requiring civil management" is a "dangerous sex offender requiring confinement" -- i.e., one whose mental abnormality involves "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]; see Mental Hygiene Law §§ 10.05-10.08; § 10.03 [q]). In State of N.Y. ex rel. Harkavy v Consilvio (8 NY3d 645 ) (Harkavy II), we decided that, as to the prisoners involved in Harkavy I, the new statute had superseded Correction Law § 402 and that future proceedings concerning those prisoners should be held under article 10.
Under article 10, a prisoner can be found to be a "sex offender requiring civil management" (and thus perhaps a "dangerous sex offender requiring confinement") only if he or she is a "detained sex offender" (see Mental Hygiene Law § 10.03 [q] ["'Sex offender requiring civil management' means a detained sex offender who . . . ."]). The main issue in these cases is whether Joseph and Humberto were detained sex offenders when the State began proceedings against them under article 10.
Mental Hygiene Law § 10.03 (g) defines "detained sex offender." The part of the definition that is relevant to this case says:
" (g) 'Detained 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, in that the person is . . .
" (5) A person convicted of a sex offense who is, or was at any time after September first, two thousand five, a patient in a hospital operated by the office of mental health, and who was admitted directly to such facility pursuant to article nine of this title or section four hundred two of the ...