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State v. Rashid

November 23, 2010

IN THE MATTER OF THE STATE OF NEW YORK, APPELLANT,
v.
MUSTAFA RASHID, RESPONDENT.



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

This opinion is uncorrected and subject to revision before publication in the New York Reports.

In this appeal, we are called upon to resolve issues of interpretation of article 10 of the Mental Hygiene Law, the key component of the recently enacted Sex Offender Management and Treatment Act (SOMTA) (L 2007 ch 7). We hold that in order to pursue civil management under article 10, the Attorney General must file the required petition against an individual in a court of competent jurisdiction before that individual's release from State custody or supervision. We also hold that Penal Law § 70.30 is not relevant to the question of which sentences make someone eligible for civil management under article 10.

I.

On January 6, 1992, respondent Mustafa Rashid pleaded guilty to two counts of first-degree robbery (Penal Law § 160.15), and single counts of first-degree burglary (Penal Law 140.30), first-degree rape (Penal Law § 130.35), and first-degree sodomy (former Penal Law § 130.50). This plea satisfied charges arising from two separate criminal incidents -- the robbery of a gas station attendant and a home invasion -- for which Rashid was arrested and indicted separately in 1988. He was sentenced to an indeterminate term of imprisonment of 8 to 16 years, running from his arrest.

Rashid was released to parole supervision in July 1999, after serving 11 years and eight months of his sentence. But on May 19, 2000, he was arrested and indicted separately for three robberies. On December 12, 2001, he pleaded guilty to two counts of third-degree robbery (Penal Law § 160.05), for each of which he was sentenced to an indeterminate term of 2 to 4 years, and one count of criminal possession of a weapon in the fourth degree (Penal Law § 265.01), for which he was sentenced to prison for one year. The indictment satisfied by Rashid's plea to the weapon-possession count also accused him of sexual abuse. These sentences ran concurrently to each other but consecutively to the undischarged portion of the indeterminate sentence imposed on Rashid in 1992 (see Penal Law § 70.25 (2-a); see also People ex rel. Gill v Greene, 12 NY3d 1, 6 [2009]). He was subsequently released to parole supervision on January 6, 2006.

Rashid was returned to prison for violating the conditions of his parole in July 2006. He was released to parole supervision again in April 2007, but went back to prison after violating the conditions of his parole in August of that year. Rashid was next released to parole supervision in early 2008. He was arrested for the misdemeanor crimes of petit larceny (Penal Law § 155.25) and criminal possession of stolen property in the fifth degree (Penal Law § 165.40) on May 6, 2008. Upon pleading guilty to petit larceny, Rashid received a definite sentence, which he served at Rikers Island, a local correctional facility. Rashid remained subject to the supervision of the State Division of Parole (the Division)throughout his time at Rikers Island, but his parole was not revoked, apparently because his jail sentence ended days before his parole expiration date: Rashid was freed from Rikers Island on October 31, 2008, and his parole supervision ended on November 4, 2008, when he reached the maximum term (20 years) of his consecutive indeterminate sentences.

On November 5, 2008, the Attorney General filed a petition in Supreme Court seeking sex offender civil management of Rashid pursuant to article 10 of the Mental Hygiene Law.

SOMTA and Article 10 are designed to reduce the risks posed by and to address the treatment needs of those sex offenders who suffer from mental abnormalities that predispose them to commit repeated sex crimes (see Mental Hygiene Law §§ 10.01, 10.03 [i]). To these ends, whenever an individual "who may be a detained sex offender" is "nearing an anticipated release"*fn1 into the community, an "agency with jurisdiction"*fn2 other than the Division must notify the Attorney General and the Commissioner of Mental Health (the Commissioner), while the Division may elect to do so (Mental Hygiene Law § 10.05 [b]). As relevant to this appeal, a "detained sex offender" is "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 either: "(1) A person who stands convicted of a sex offense as defined in subdivision (p) of this section [10.03], and is currently serving a sentence for, or subject to supervision by the division of parole, whether on parole or on post-release supervision, for such offense or for a related offense; . . . "(4) A person who stands convicted of a designated felony that was sexually motivated and committed prior to the effective date of this article [10]." (Mental Hygiene Law § 10.03 [g] [1], [4]).

Again as relevant to this appeal, a "sex offense" includes felonies defined in article 130 of the Penal Law and any felony attempt or conspiracy to commit those crimes, as well as "a designated felony . . . if sexually motivated and committed prior to" article 10's effective date (Mental Hygiene Law § 10.03 [p]). The list of "designated felon[ies]" encompasses a broad range of felony crimes, including assault, gang assault, stalking, manslaughter, murder, kidnaping, burglary, arson, robbery, various prostitution and obscenity offenses, crimes involving sexual performance by a child, and any felony attempt or conspiracy to commit the enumerated crimes. "Related offenses" include "any offenses that are prosecuted as part of the same criminal action or proceeding, or which are part of the same criminal transaction, or which are the bases of the orders of commitment received by the department of correctional services in connection with an inmate's current term of incarceration" (Mental Hygiene Law § 10.03 [l]).

Upon receipt of section 10.05 (b) notice, the Commissioner is authorized to "designate multidisciplinary staff" at the Office of Mental Health (OMH) to conduct "a preliminary review" of the need for "the person who is the subject of the notice" to be evaluated by a three-member "case review team" at least two of whose members must be "professionals in the field of mental health or the field of developmental disabilities, as appropriate, with experience in the treatment, diagnosis, risk assessment or management of sex offenders" (Mental Hygiene Law § 10.05 [a], [e]). If the staff decides after preliminary review to make a referral to a case review team, notice must be given to the individual whose case is to be referred, whom the statute identifies as "the respondent" at this point)*fn3 (Mental Hygiene Law § 10.05 [e]).

The case review team considers a variety of records, may arrange for a psychiatric examination, and ultimately determines whether the respondent is a "sex offender requiring civil management" -- i.e., is both "detained" within the meaning of section 10.03 (g) and suffers from a "mental abnormality" as defined by section 10.03 (i)*fn4 (see Mental Hygiene Law § 10.03 [q]). If the case review team determines that the respondent is not a sex offender requiring civil management, it notifies the respondent and the Attorney General, who then "shall not file a sex offender management petition" (Mental Hygiene Law § 10.05 [f]). If, however, the case review team reaches the contrary conclusion, written notice is given to the respondent and the Attorney General, "accompanied by a written report from a psychiatric examiner that includes a finding as to whether the respondent has a mental abnormality" (Mental Hygiene Law § 10.05 [g]).

After receipt of section 10.05 (g) notice, the Attorney General may elect to file an article 10 petition against the respondent in the Supreme Court or County Court of the county where the respondent is located (Mental Hygiene Law § 10.06 [a]). Within 30 days after a petition is filed, Supreme Court must "conduct a hearing without a jury to determine whether there is probable cause to believe that the respondent is a sex offender requiring civil management" (Mental Hygiene Law § 10.06 [g]). If probable cause is established, the respondent may be confined, pending completion of a jury trial to be conducted within 60 days thereafter (Mental Hygiene Law §§ 10.06 [k], 10.07 [a]). The jury (or judge, if jury trial is waived) must then determine "by clear and convincing evidence whether the respondent is a detained sex offender who suffers from a mental abnormality" (Mental Hygiene Law § 10.07 [d]). The Attorney General bears the burden of proof, and any jury determination must be by unanimous verdict (id.).

If the jury (or judge, as the case may be) concludes that the respondent is a "detained sex offender who suffers from a mental abnormality," then the court must "consider whether the respondent is a dangerous sex offender requiring confinement or a sex offender requiring strict and intensive supervision" (Mental Hygiene Law § 10.07 [f] [emphasis added]). If the court "finds by clear and convincing evidence" that the respondent is afflicted with "a mental abnormality involving such a strong predisposition to commit sex offenses, and such an inability to control behavior, that [he] is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility, then the court shall find the respondent to be a dangerous sex offender requiring confinement," who "shall be committed to a secure treatment facility for care, treatment, and control until such time as he or she no longer requires confinement" (id.). Alternatively, if the judge "does not find that the respondent is a dangerous sex offender requiring confinement," the court "shall make a finding of disposition that the respondent is a sex offender requiring strict and intensive supervision, and the respondent shall be subject to a regimen of strict and intensive supervision and treatment" in accordance with article 10's provisions (id.).*fn5

Here, the Division sent section 10.05 (b) notice to the Commissioner and the Attorney General on September 29, 2008, stating that Rashid had been "identified . . . as a person who is a detained sex offender . . . warrant[ing] notice to [OMH] of [impending] release"; and that he was under the Division's supervision until his sentence expired on November 4, 2008. On the attached case review worksheet, the Division specified that first-degree sodomy was the "qualifying sex offense or sexually motivated designated felony offense," and that Rashid exhibited a "pattern of sex offense."

On October 6, 2008, OMH gave section 10.05 (e) notice to Rashid; and on October 17, 2008, OMH issued section 10.05 (g) notice to Rashid and the Attorney General. The section 10.05 (g) notice set out two findings made by the case review team: that Rashid was "a sex offender requiring civil management as defined by SOMTA"; and -- in contrast to the SOMTA-qualifying offense flagged in the referral from OMH (i.e., first-degree sodomy) --that Rashid's "sex offense was a designated felony that was sexually motivated."*fn6 As noted previously, Rashid was released from jail on October 31, 2008, his parole expired on November 4, 2008, and the Attorney General filed a sex offender management petition against him the next day, November 5, 2008.

Supreme Court directed that Rashid be confined pending the probable-cause hearing. Upon Rashid's motion, the court dismissed the first petition for improper service, but denied Rashid's application for immediate release from custody in light of the Attorney General's representation that a second petition would be filed the same day.

At the probable-cause hearing held on November 19, 2008, the Attorney General argued that Rashid was a detained sex offender because he was subject to State custody or supervision for his 1992 convictions for rape and sodomy by operation of section 70.30 of the Penal Law. The Attorney General also suggested, in the alternative, that Rashid's SOMTA-qualifying offense was a sexually motivated designated felony because "even though [Rashid] only pled to a misdemeanor [i.e., his plea in 2001 to weapon possession] the misdemeanor was on the indictment with the sexually motivated robbery as well." When the judge asked the Attorney General "When did you begin the Article 10?" he responded, "on October 6, 2008, we served notice to the respondent pursuant to 10.05 of the Mental Hygiene Law." The Attorney General immediately added that he was referring to section 10.05 (e).

The judge concluded that Rashid was a detained sex offender. He explained that

"[i]n doing so the Court relies on Article 70.00 of the Penal Law, which relates to consecutive sentences . . . Under Article 70.00 [the 1992 and 2001] sentences combined so that the minimum and maximum instead of being 8 to 16 is 10 to 20. And that if this proceeding was commenced prior to the expiration of the 20 years during which time [Rashid] was still incarcerated, accordingly under the definition of a detained sex offender, [he] is a detained sex offender" (emphasis added).

Additionally, the judge concluded that Rashid suffered from a mental abnormality, relying on the testimony of the State's expert, a licensed psychologist and psychiatric examiner for OMH.

Accordingly, the court determined that there was probable cause to believe that Rashid was a sex offender requiring civil management. Because of Rashid's "long history of criminality going back to his youth," the court further determined that there was probable cause to believe that Rashid was dangerous enough to require confinement pending trial, and that lesser conditions of confinement were insufficient to protect the public since his behavior while incarcerated was "exemplary," but once released he reverted to substance abuse and violent crime (see Mental Hygiene Legal Serv. v Spitzer, 2007 WL 4115936 [SD NY 2007], affd 2009 WL 579445 [2d Cir 2009] [imposing preliminary injunction requiring specific, individualized judicial finding with respect to portion of Mental Hygiene Law § 10.06 (k) addressing pretrial detention]). The judge ordered Rashid to be committed to a secure treatment facility pending completion of trial, which he scheduled. The case was then adjourned to another judge to handle further proceedings.

Rashid next moved to dismiss the petition on several grounds, including that his conviction for a weapon-possession misdemeanor was not a sexually-motivated designated felony. On June 5, 2009, the judge granted Rashid's motion because, as he subsequently explained, Rashid's "conviction for criminal possession of a weapon in the fourth degree (a class A misdemeanor) does not qualify as a 'designated felony' under the statute;" and "[t]he only allegations in the second petition which asserted that [Rashid] was a detained sex offender arose from this misdemeanor conviction" (25 Misc 3d 318, 326 [New York County 2009]).*fn7 The court granted the State leave to replead and file another petition, however.

The Attorney General then filed a third petition -- the subject of this case -- on June 10, 2009. This petition relied upon People v Buss (11 NY3d 553 [2008]) (handed down after the probable-cause hearing) and Penal Law § 70.30 to argue that Rashid was a "detained sex offender" because he was serving an aggregate maximum sentence that encompassed the 1992 convictions for rape and sodomy. Further, the Attorney General also asserted in the third petition that the relevant date to determine whether Rashid was a detained sex offender was September 29, 2008, the date on which the Division gave section 10.05 (b) notice to the Commissioner and the Attorney General.*fn8

Rashid moved to dismiss this petition on the ground that he was not a detained sex offender for two reasons: first, that at no relevant time was he serving a sentence or subject to parole or postrelease supervision for a "sex offense" or a "related offense[]," as those terms are defined in article 10; second, that article 10 requires a respondent to be a detained sex offender when the petition is filed. Supreme Court did not rule on the latter issue. Instead, for purposes of Rashid's motion to dismiss, the court assumed that the State's position was correct (id. at 330).

Turning to the first issue, the judge concluded that Buss did not govern which sentences, in addition to sex offenses, make an individual eligible for civil management because the Legislature "obviously inserted" the definition for "[r]elated offenses" into the statute for this very purpose (id. at 332). By contrast, SORA "provide[d] no clear answer regarding the sentence calculation question . . . addressed . . . in Buss," making application of the general rule in Penal Law § 70.30 reasonable (id. at 331).

Applying article 10's definitions for a "detained sex offender" and "related offenses" to the facts of this case, the judge observed that at the time Rashid received the section 10.05 (b) notice, he was in jail for petit larceny; he was not an inmate incarcerated under orders of commitment received by the Department of Correctional Services (DOCS). And while Rashid was still subject to parole supervision for his 2001 convictions, those convictions were not for sex offenses, or for crimes that were part of the same criminal transaction as a sex offense. The judge concluded that because Rashid was therefore not "currently serving a sentence for, or subject to supervision by the division of parole . . . for [a sex] offense or for a related offense" (Mental Hygiene Law § 10.05 [g] [1]), he was not a detained sex offender at the time alleged by the Attorney General to be relevant -- i.e., September 29, 2008. Accordingly, Supreme Court granted Rashid's motion and dismissed the petition, declaring that Rashid was not a detained sex offender at the time of either the interagency notice under section 10.03 (b) or the case review notice under section 10.03 (e).

The Appellate Division affirmed. The court concluded that the different consequences of SORA registration and article 10 involuntary civil commitment, as well as the definition in article 10 of the "related offenses" to be considered in determining eligibility for civil commitment, "render[ed] Penal Law § 70.30 inapplicable for the purpose of merging the sentence for rape into [Rashid's] subsequent sentence for the non-sexual offense" (68 AD3d 615, 616 [1st Dept 2009]). After granting the State permission to appeal (14 NY3d 711 [2010]), we denied Rashid's motion to vacate the stay of his release originally put in place by Supreme Court and continued by the Appellate Division, and granted him a calendar preference (15 NY3d 801 [2010]). We now affirm.

II.

We first consider whether an individual must be a detained sex offender on the date when the Attorney General files a sex offender civil management petition against him in order to remain subject to civil management under article 10. As a threshold matter, this issue is preserved for our review. Although not raised in the Appellate Division, Rashid contested timeliness on this basis in Supreme Court (see Matter of Seitelman v Lavine, 36 NY2d 165, 170 n2 [1975] ["This court will consider a question that has been raised in the tribunal of original jurisdiction even though it may not have been argued in the Appellate Division."]; Telaro v Telaro, 25 NY2d 433, 437-438 [1969] [expressly rejecting argument that party "abandoned or waived" an argument by failing to raise it at the Appellate Division]).

Here, Rashid was not subject to State custody or supervision at the time the Attorney General filed any of the three petitions. But a petition must allege "that the respondent is a sex offender requiring civil management" (Mental Hygiene Law § 10.06 [a] [emphasis added]), which is defined as "a detained sex offender who suffers from a mental abnormality" (Mental Hygiene Law § 10.03 [q]). Moreover, as relevant to this appeal, a "detained sex offender" must be "in the care, custody, control, or supervision of an agency with jurisdiction" and, when on parole, "currently . . . subject to [the Division's] supervision . . . for [a sex] offense or for a related offense" (Mental Hygiene Law § 10.03 [g] [1] [emphasis added]; see also People ex rel. Joseph II. v ...


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