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In Re the State of New York v. Enrique T. (Anonymous

SUPREME COURT, APPELLATE DIVISION First Judicial Department Appellate Division, First Department

January 26, 2012


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

Matter of Matter of State of New York v Enrique T.

Catterson, 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.

Decided on January 26, 2012

Peter Tom,J.P. James M. Catterson Leland G. DeGrasse Rosalyn H. Richter Sallie Manzanet-Daniels, JJ. Index

Petitioner appeals from an order of the Supreme Court, Bronx County (Colleen D. Duffy, J.), entered on or about August 10, 2011, which, upon finding that the pre-trial detention provisions of MHL § 10.06(k) are facially unconstitutional, ordered respondent's immediate release without supervision. Eric T. Schneiderman, Attorney General, New York (Patrick J. Walsh and Steven C. Wu of counsel), for appellant. Marvin Bernstein, Mental Hygiene Legal Service, New York (Sadie Zea Ishee of counsel), for respondent.

In this proceeding in which the New York State Attorney General seeks civil management of a sex offender pursuant to Article 10 of the New York Mental Hygiene Law (hereinafter referred to as "MHL"), we are asked to vacate an order of Supreme Court that unconditionally released the respondent, a convicted sex offender. His release was based on a finding that the pretrial civil detention provisions mandated by MHL § 10.06(k) are facially unconstitutional. This Court now finds that Supreme Court erred in attempting to make such a determination. We therefore reverse, on the law, vacate the order of the respondent's unconditional release, and order the respondent returned to detention pending completion of disposition pursuant to the Sex Offender Management and Treatment Act (hereinafter referred to as "SOMTA")[*fn1]. Additionally, we reject the respondent's argument on appeal that the statute is unconstitutional as applied to him and those sex offenders who may ultimately be approved for civil management under strict and intensive supervision and treatment, a less restrictive alternative to confinement.

The respondent, Enrique T., is a 36-year-old convicted sex offender whose first conviction for a sexual offense occurred in 1990 when he raped and sodomized a 4-year-old girl whom his mother was baby-sitting. He pleaded guilty to rape in the first degree and was sentenced to a prison term of 1 to 3 years.

On January 23, 2001, the respondent was arrested and charged with multiple counts of deviate sexual intercourse with a person under age 11, sodomy and sexual abuse. He pleaded guilty to two counts of sexual abuse in the first degree involving sexual contact with his girlfriend's 7-year-old daughter and forcing an 11-year-old girl to undress and allow him to fondle her breasts and vagina. The 2001 rape and sodomy came to light when the younger victim told her mother that she knew about sex because the respondent had forced her into numerous sexual activities, including putting his penis in her mouth and forcing it into her rectum. An investigation determined that between July 1, 2000 and August 31, 2000, the respondent subjected the victim to numerous forms of sexual contact against her will; during the same period, on at least three occasions, he forced a second child to undress and fondled her breasts and vaginal area. In subsequent sex offender counseling, the respondent admitted to the activity, and said he "groomed" the victims by buying them things and that he "fantasized" about them getting naked and in sexual positions; he said his "excuse" was that the older victim was a "big boned girl" who was "ready for sex" and the younger one was "getting there too so it's ok for her too." He was sentenced on March 2, 2001 to a term of 5 years to be followed by 5 years' postrelease supervision.

After the respondent was released to parole supervision on June 17, 2005, he absconded to Florida and tampered with his electronic monitoring unit, resulting in his parole being revoked on August 15, 2006. The respondent was returned to custody to complete his sentence. The respondent's scheduled release date of January 23, 2011 brought him within the purview of Article 10 in October 2010.

Article 10 forms the basis of SOMTA, enacted by the Legislature, effective April 13, 2007. The statute was based on legislative findings "that some offenders have mental abnormalities that predispose them to engage in repeated sex offenses." MHL § 10.01(b). The Legislature's concern was that "recidivistic sex offenders pose a danger to society that should be addressed through comprehensive programs of treatment and management." MHL § 10.01(a). "Civil management" means either commitment to a secure psychiatric facility, or management in the community under the supervision of the division of parole. The second option is known as strict and intensive supervision and treatment (hereinafter referred to as "SIST"). MHL §§ 10.03(q), 10.11(a)(2).

When a detained sex offender is nearing release, the agency with jurisdiction over the offender is required to give notice of the anticipated release to the Attorney General and the Commissioner of Mental Health. MHL § 10.05(b). The Commissioner is authorized to designate a multidisciplinary staff that will make a "preliminary review" of the need for civil management and whether to refer the person to a case review team. MHL § 10.05(d).

If the preliminary review results in referral to a case review team, the team must review relevant medical and other records, and may arrange for a psychiatric examination. MHL § 10.05(e). If the case review team finds that a respondent is a sex offender requiring civil management, it must notify the respondent and Attorney General. MHL § 10.05(g). The Attorney General then may file a sex offender civil management petition. MHL § 10.06(a).

Within 30 days after the filing of a civil management petition, the court is required to 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." MHL § 10.06(g). If the court finds "there is probable cause to believe that the respondent is a sex offender requiring civil management," it must order that the respondent be committed to a secure treatment facility designated by the Office of Mental Health (hereinafter referred to as "OMH") for care, treatment and control. MHL § 10.06(k). The court is also required to set a date for a jury trial, to be conducted within 60 days after the probable cause determination, and "the respondent shall not be released pending the completion of such trial." Id.; MHL § 10.07(a).

Subsequently, if, at trial, a jury finds that the respondent is a sex offender suffering from a mental abnormality, then the court determines the appropriate disposition at a hearing. It "shall consider whether the respondent is a dangerous sex offender requiring confinement or a sex offender requiring strict and intensive supervision." MHL § 10.07(f). Additional evidence may be offered on that issue by both the respondent and the Attorney General. MHL § 10.07(f).

Civil commitment to a secure treatment facility is required if the court finds, upon clear and convincing evidence, that the respondent "has a mental abnormality involving such a strong predisposition to commit sex offenses, and such an inability to control behavior, that the respondent is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility." MHL § 10.07(f). If the court does not so find, it must make a finding of disposition that the respondent is a sex offender requiring SIST. MHL § 10.07(f). The determination is based on consideration of the conditions that would be imposed under SIST, and all available information about the prospects for the respondent's re-entry into the community. Id.

In this case, on October 28, 2010, the Department of Corrections and Community Supervision (hereinafter referred to as "DOCCS") gave notice to the Commissioner and the Attorney General pursuant to MHL § 10.05(b) of the respondent's anticipated release from incarceration on January 23, 2011. On November 22, 2010, it gave notice to the respondent that his case had been referred to a case review team for evaluation. On January 13, 2011, OMH notified the respondent that the case review team had found he was a sex offender requiring civil management, and provided him with a copy of a report prepared by an OMH psychologist. On January 14, 2011, the Attorney General filed a petition pursuant to Article 10, seeking civil management of the respondent following his release from prison. Following the filing of the petition, the Attorney General moved for an order finding probable cause to believe the respondent is a sex offender requiring civil management. The court set a January 20, 2011 return date, appointed Mental Health Legal Services as counsel, and authorized retention of the respondent pending the probable cause hearing.

The Attorney General submitted an evaluation report prepared by an OMH psychologist, dated January 11, 2011. Based on an interview of the respondent, review of his criminal history and records of DOCCS and the State Division of Parole, the OMH psychologist concluded that the respondent has a mental abnormality as defined by MHL § 10.03(i), and that he meets diagnostic criteria for pedophilia and antisocial personality disorder. The Attorney General reported that the respondent had scored a 5 on the STATIC-99 instrument, which predicts the risk of recidivism for sexual offenders, indicating a moderate to high risk. The Attorney General urged that, given the respondent's criminal record and history of having absconded from parole, he is a "detained sex offender who requires civil management," and that he is "sufficiently dangerous" to require pretrial detention and no less restrictive alternative to OMH confinement would adequately protect the public pending trial.[*fn2]

On or about May 26, 2011, the OMH psychologist testified at the respondent's probable cause hearing. The psychologist opined that the respondent had retained a deviant sexual arousal to young girls, or chronic pedophilia, and antisocial personality disorder, and that he suffers from a mental abnormality with serious difficulties in controlling such conduct. According to the psychologist, the respondent's language and repeated behavior indicated that he is still suffering from a disorder. The psychologist stated that she considered the respondent to be a danger to the community if released pending trial, absent information on where he would reside and go for treatment.

The court's written decision of June 7, 2011 was based on what it deemed to be the psychologist's "credible" testimony that the respondent suffers from conditions that "predispose him to commit sex offenses." Additionally, the court found the respondent dangerous based on testimony that he had violated his parole and had serious difficulty controlling his behavior; the "chronic nature of his deviant sexual interest" in young girls; and his "willingness to risk his personal, familial relationships to satisfy his sexual urges."

However, the court stated it would continue the hearing on the issue of whether the respondent could be civilly confined pending trial in light of a federal injunction barring the Attorney General from seeking enforcement of the mandatory detention provisions of MHL § 10.06(k). On June 13, 2011, the court reopened the probable cause hearing based on the federal decision in MHLS v. Cuomo (785 F. Supp.2d 205 (S.D.N.Y. 2011)), which the court acknowledged was not binding, but which it found "persuasive." After hearing arguments, the court issued an order for an investigation as to the propriety of civil management by SIST for the respondent, and adjourned the matter to August 1, 2011 for receipt of the report.

The SIST report, completed by DOCCS and OMH on July 14, 2011, recommended 69 mandatory and special conditions of SIST that would apply to the respondent. The OMH report found the respondent "has demonstrated his sexually deviant and unpredictable behavior, as well as behavior that places the community at risk," and, if released, he "will be monitored closely and placed on a curfew" and electronic monitoring. The community investigation by DOCCS concluded that it would approve proposed release to a supervised program and to a single room occupancy residence, and that the respondent would be required to register pursuant to the Sex Offender Registration Act as a Level 3 sex offender.

In a supplemental decision dated August 4, 2011, the court concluded that MHL § 10.06(k), the pretrial detention provision of Article 10 is facially unconstitutional, and that it was therefore constrained to order the respondent's release. The court purported to find facial unconstitutionality based on its observation that the provision mandates pretrial detention "without a delineation between a dangerous sex offender requiring confinement and a sex offender requiring strict and intensive supervision." The court appeared to draw, in part, on MHLS v. Cuomo, where the District Court held that there are those with a mental abnormality who will be subject to detention, and those with a mental abnormality subject to parole- or probation-like conditions, but that the provision at issue provides for automatic detention of all Article 10 individuals "without a judicial proceeding to determine dangerousness." 785 F.Supp.2d at 226.

The court further noted that OMH had recommended community-based treatment for the respondent after trial, demonstrating that "[t]here is very little likelihood, if any," that he would ultimately be found to be a "dangerous sex offender requiring confinement." Thus, the court observed, the pretrial detention imposed on the respondent was "more onerous than the consequences that [he] faces even if a jury were to find, after trial, that he suffers from a mental abnormality."

The court, relying on United States v. Salerno (481 U.S. 739, 107 S.Ct. 2095 (1987)), concluded that due process mandates a "specific finding of dangerousness" and a showing that "lesser conditions than confinement would not suffice to protect the community." It observed that the Attorney General had failed in its burden to make such a showing, but that, in this case, no such finding could be made anyway as the SIST report made clear that the respondent could be safely released to the community under supervision.

Additionally, the court observed that Article 10 violates procedural due process because the statute provides no means "to effectuate any finding by a court that lesser conditions than confinement (e.g., supervision, medication, community-based treatment) would suffice to protect the community from a respondent pending a civil management trial."

On appeal, the Attorney General asserts that Supreme Court erred because MHL § 10.06(k) incorporates a finding of dangerousness at the probable cause stage, release under SIST represents a discretionary policy and is not constitutionally mandated, and the United States Supreme Court has upheld civil commitment statutes without a consideration of less restrictive alternatives where a respondent is found to be a danger to society. Thus, the Attorney General argues, committing the respondent to a secure treatment facility pending trial does not violate any substantive or procedural due process guarantees, even if it is ultimately found, after trial, that he requires civil management under SIST.

For the reasons set forth below, we hold that a finding of probable cause to believe that an Article 10 sex offender requires civil management because of mental abnormality incorporates the necessary finding of a respondent's dangerousness. As a danger to society, all Article 10 sex offenders, therefore, come within the scope of those statutes upheld by the United States Supreme Court that authorize commitment or detention, even pretrial detention, without mandating consideration of a lesser restrictive alternative.

Therefore, the fact that under Article 10, a court is subsequently required to determine whether civil management should continue at a secure treatment facility or should take the less restrictive form of SIST is a discretionary policy. Furthermore, release under SIST is not, as characterized by the federal district court in Cuomo, a "parole- or probation-like" (785 F. Supp.2d at 222) release but is a complex and individualized plan, primarily meant to safeguard the community into which the sex offender will be released. It is thus not an alternative available at the probable cause stage of the judicial process which determines whether there is reasonable cause to believe that a detained sex offender has a mental abnormality rendering him a danger to society.

Initially, Supreme Court erred in attempting to determine, sua sponte, the facial validity of MHL § 10.06(k). The issue of facial unconstitutionality was not before the court, the respondent did not argue it, and in any such argument, it is the challenger's burden to so argue and establish unconstitutionality beyond a reasonable doubt. Cook v. City of Binghamton, 48 N.Y.2d 323, 330, 422 N.Y.S.2d 919, 922, 398 N.E.2d 525, 528 (1979)("[t]he burden of showing the unconstitutionality of a statute, of course, rests on the party which attacks its validity, and every legislative enactment carries a strong presumption of constitutionality")(internal citations omitted). Facial invalidation is an extraordinary remedy and generally is disfavored. LLC v. New York State Dept. of Taxation & Fin., 81 AD3d 183, 194, 913 N.Y.S.2d 129, 136 (1st Dept. 2010). Moreover, it is well settled that " courts must avoid, if possible, interpreting a presumptively valid statute in a way that will needlessly render it unconstitutional'" (emphasis added). Id. at 194, 913 N.Y.S.2d at 137, quoting LaValle v. Hayden, 98 N.Y.2d 155, 161 (2002); see also Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 449 (2008) (acknowledging courts' general reluctance to " formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied'").

Thus, the court erred in embarking on such an analysis, sua sponte, and we decline to compound the error by making any determination on the merits, save to observe that the court's decision clearly missed the mark on facial invalidation: The heavy burden of a challenger is to establish that "no set of circumstances exists under which the [statute] would be valid." Salerno, 481 U.S. at 745.

This the court did not do. Rather, the court appeared to accept that there is a category of Article 10 sex offenders where pretrial detention would be valid, but observed that this was not applicable to the respondent, who appeared to fall into that category of sex offender who could be approved posttrial for supervision rather than commitment. The court held: "[t]his is just such a case where lesser restrictive conditions would suffice to protect the public during the pendency of Respondent's trial" (emphasis added).

On appeal, the respondent does not assert more. He argues, inter alia, that MHL § 10.06(k)'s mandatory detention provision is unconstitutional as applied to him because he belongs to that class of sex offender that may ultimately be found suitable for SIST, that the evidence before the hearing court indicated that he could be "safely" released on conditions pending trial, and thus that the Attorney General failed in sustaining its burden of proving that less restrictive alternatives would not suffice to protect the community from him. Therefore, the respondent argues, the provision offends the due process guarantees of the Federal Constitution, and violates the New York State Constitution's guarantee that mental health patients be treated in the "least restrictive alternative setting."

We confine our analysis to the respondent's assertion that the statute is unconstitutional as applied to him as well as to that category of Article 10 sex offender who, at disposition, may be approved for release into the community under SIST. The respondent argues that if he and others like him are found not sufficiently dangerous to warrant confinement posttrial and disposition, then they are not sufficiently dangerous to warrant detention pretrial. Thus, he asserts, the provision is not narrowly tailored to effectuate the government's objective of protecting the public from him and those like him. We disagree.

Any view that there are dangerous and non-dangerous Article 10 sex offenders, or that there is no judicial determination of dangerousness at the probable cause stage is based on an essential misreading of the statute. The statute is clear that a " sex offender requiring civil management' means a detained sex offender who suffers from a mental abnormality." MHL § 10.03(q). "Mental abnormality," in turn, means: "a congenital or acquired condition, disease or disorder that affects the emotional, cognitive or volitional capacity of a person in a manner that predisposes him or her to the commission of conduct constituting a sex offense and that results in that person having serious difficulty in controlling such conduct." MHL § 10.03(i).

These component elements of mental abnormality hew closely to the statutory language analyzed in Kansas v. Hendricks (521 U.S. 346, 117 S.Ct. 2072 (1996), which the United States Supreme Court held was sufficient to establish a finding of dangerousness based on a mental abnormality characterized by a "serious lack of ability to control behavior." Thus, Article 10's definition of mental abnormality incorporates a finding of a respondent's dangerousness, even if the word "dangerous" is not used in the statutory definition. See Matter of David B., 97 N.Y.2d 267, 275-276, 739 N.Y.S.2d 858, 863, 766 N.E.2d 565, 571 (2002); see also Kansas v. Crane, 534 U.S. at 413 ("states retain considerable leeway in defining the mental abnormalities and personality disorders that make an individual eligible for commitment").

Consequently, whether ultimately confined or released conditionally under SIST, all Article 10 sex offenders are "detained sex offenders" where there is probable cause to believe they suffer a mental abnormality, and where such is found at trial. MHL § 10.03(q); see also MHL § 10.03(r)(" [s]ex offender requiring strict and intensive supervision' means a detained sex offender who suffers from a mental abnormality ..."); see also MHL § 10.03(e)(" [d]angerous sex offender requiring confinement' means a person who is a detained sex offender suffering from a mental abnormality ...").

The fact that a sex offender requiring SIST is defined as "a detained sex offender who suffers from a mental abnormality but is not a dangerous sex offender requiring confinement" (MHL § 10.03(r)) is not to be interpreted to mean a sex offender who is not dangerous at all. Rather, it should be interpreted to mean a sex offender who is not dangerous to the extent where his dangerousness must be managed by confinement. Indeed, Article 10's procedures are designed to winnow out the most dangerous of the dangerous sex offenders where "confinement ... will need to be extended by civil process ...." MHL § 10.01(b).

More significantly, the requirements of due process are met in providing for the civil commitment of sexual predators based on a "finding of dangerousness" resulting from a mental illness or mental abnormality that results in a "serious lack of ability to control behavior." Crane, 534 U.S. at 409-410, 412-413 (internal quotation marks omitted); see also, Hendricks, 521 U.S. at 357 (states may provide for civil detainment of people "who are unable to control their behavior and who thereby pose a danger to the public health and safety")(emphasis added).

Thus, as the Attorney General correctly asserts, Article 10's scope encompasses only sex offenders who are dangerous enough to be confined without the need to consider less restrictive alternatives. See Hendricks, 521 U.S. at 387 (Breyer, J., dissenting, criticizing Kansas statute for not considering lesser conditions of release for dangerous sexual predators).

We therefore reject the argument, accepted by the court below, that the State may impose pretrial detention only if it shows there are no lesser conditions than confinement to assure the safety of the community. The respondent, relying on United States v. Salerno, argues that the Supreme Court has never upheld pretrial detention unless the statute authorizing that detention included some individual inquiry to ensure that pretrial detention was imposed only on those individuals who could not be managed in less restrictive ways. This is simply incorrect. Salerno does not stand for the proposition that consideration of the least restrictive alternative is constitutionally mandated at the pretrial detention stage.

In Salerno, the Supreme Court determined the constitutionality of a federal statute, the 1984 Bail Reform Act, authorizing post-arrest/pretrial detention of individuals charged under penal law with a specific category of "extremely serious offenses" on the grounds that it was likely they would be responsible for dangerous acts in the community after arrest. Salerno, 481 U.S. at 750. The challenge implicated the inviolate constitutional principle of presumption of innocence. Indeed, the dissent framed the issue as determining the constitutionality of "a statute in which Congress declares that a person innocent of any crime may be jailed indefinitely, pending the trial of allegations which are legally presumed to be untrue, if the Government shows to the satisfaction of a judge that the accused is likely to commit crimes, unrelated to the pending charges, at any time in the future." Salerno, 481 U.S. at 755. The majority, thus, articulated a number of factors that were to be considered by courts in order to ensure that the Act was consistent with due process. The "no lesser conditions" analysis was just one of the factors, but Salerno did not mandate a "lesser conditions" analysis as a fundamental constitutional requirement for all pretrial detention or confinement.

Further, the statute challenged in Salerno is easily distinguishable from the provision at issue here, since Article 10 contemplates further civil management for a convicted and detained sex offender based on a probable cause finding that the sex offender is a danger to society because of his predisposition to commit sex offenses. Such civil management usually follows a sentence imposed for a criminal sex offense. Hence, the future dangerousness of Article 10 sex offenders is closely related to the crime of which they have been convicted, and for which they have been incarcerated.

In any event, the Supreme Court has consistently held that government's "regulatory interest in community safety can, in appropriate circumstances, outweigh an individual's liberty interest." Salerno, 481 U.S. at 748-749 (authority of government is well established, in special circumstances, to restrain an individual's liberty prior to, or even without, criminal trial and conviction). The question for a court to determine is whether the restriction of liberty is "impermissible punishment or permissible regulation." Id. at 747.

The Supreme Court was particularly instructive in Schall v. Martin (467 U.S. 253 (1984)) as to a situation where a final disposition may be less onerous than pretrial detention. The statute at issue in Schall concerned juveniles detained before trial, who ultimately could demonstrate that detention posttrial is unnecessary. The Court held that "the final disposition of a case is largely irrelevant to the legality of a pretrial detention." 467 U.S. at 273 (internal quotation marks omitted). More interestingly, the Court cited to the New York Court of Appeals' observation that "caution and concern for both the [respondent] and society may indicate the more conservative decision to detain at the very outset, whereas the later development of very much more relevant information may prove that while a finding of delinquency was warranted, placement may not be indicated." Id., quoting People ex rel. Wayburn v. Schupf, 39 N.Y.2d 682, 690, 385 N.Y.S.2d 518, 522, 350 N.E.2d 906, 910 (1976).

As the Attorney General persuasively asserts, the Legislature's decision to provide, as a discretionary policy, the less restrictive option of SIST to certain dangerous respondents after trial depends on implementing a carefully tailored and individualized program. MHL § 10.11(a). This does not create a mandatory constitutional obligation to offer such release before trial when the same safeguards and protections are absent. The court below appeared to misapprehend the nature of SIST as a lesser restrictive alternative. Certainly, contrary to the Federal District Court's characterization of SIST as a "parole- or probation-like" alternative, SIST is a uniquely restrictive program or "substantially" more restrictive than parole or probation.

The recommendation for the respondent specified 69 mandatory restrictions and special conditions. These included: submission to physical inspection and search by parole officers whenever directed and random alcohol and drug testing; requirement of making a log of all daily events; obligation to submit television, phone, Internet and cable bills upon request; prohibition from leaving the state, entering school grounds, using on-line computer services that exchange electronic messages, and watching sexually explicit movies; prohibition from using a computer without permission, contact with children under age 18 unless approved by a parole officer, and ownership of puppies or kittens without permission; prohibition from visits, without prior approval, to pet stores, toy stores, parks, malls, bike trails, skating rinks, and bowling alleys; prohibition from possession of toys or children's clothes or cameras; prohibition from hitchhiking, drinking, driving a car without permission, and using a cellphone with a camera. The SIST, therefore, is effectively a form of detention.

It also requires evaluation of available treatment options with the input of qualified professionals as to implementing an effective program of outpatient treatment and supervision. Consequently, Article 10 contemplates imposition of SIST, if at all, following trial and the development of a fully litigated record on the nature and severity of a respondent's mental abnormality, and at a dispositional hearing where the Attorney General has the opportunity to object to recommendations. As a practical matter, then, SIST does not appear to be an available alternative prior to trial, and due process does not prohibit the Legislature from deferring a "lesser conditions" analysis until a record has been developed.

The Supreme Court has held that "identification of the specific dictates of due process generally requires consideration" of (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903 (1976).

In this case, the private interest is weighty. However, the risk of an erroneous deprivation of such interest is limited by the statutory requirement of two levels of review prior to commencing an Article 10 petition, and by the statutory requirement of a judicial finding of probable cause to believe the respondent is a sex offender requiring civil management. The statute provides extensive procedural protections for respondents in connection with that probable cause determination. Once the Attorney General files a sex offender civil management petition, the court is required to "[p]romptly" appoint counsel (MHLS where possible) for a respondent who is financially unable to retain counsel. MHL § 10.06(c). Both the Attorney General and the respondent have the right to request a psychiatric evaluation by an examiner of their choice, and, if the respondent is financially unable to pay, the court will appoint an examiner to be paid within the limits prescribed by law. MHL §§ 10.06(d) and (e). It also sets a time frame, although not strict time limits, contemplating a trial within 60 days, for resolution of the Article 10 proceeding. MHL §§ 10.06(k), 10.07(a).

The respondent's claim that the New York State Constitution mandates that mental health patients must be treated in the "least restrictive setting," and that Article 10 is unconstitutional because it fails to do so, is without merit. The statute states clearly that sex offenders in need of civil management are a different population from traditional mental health patients. MHL § 10.01(g). As the court below specifically found, "mental abnormality" as used in the statute at issue has no medical validity. Rather, it is a legal term containing an inherent meaning of dangerousness. Thus, while Article 10 aims to treat the sex offender, it was nevertheless primarily enacted to protect the community from high risk sex offenders and, as in other statutes designed for the protection of the community, to "remove the offender from the arena of possible action." Wayburn, 39 N.Y.2d at 689, 385 N.Y.S.2d at 521.

Finally, we do not agree with the respondent that the issue of constitutionality as applied to him will be moot upon his dispositional hearing. The respondent's mootness argument is based on the view that once a disposition is made, this Court would no longer need to decide whether the Attorney General sustained his burden of establishing that lesser conditions than confinement would not suffice to protect the public in the respondent's case. However, the issue raised by the respondent's as-applied challenge -- and determined here in the negative -- is whether the Attorney General has that burden at all with regard to Article 10 sex offenders. In that sense, it is a challenge the Attorney General is certain to face again from sex offenders in the same category as the respondent, or those where the propriety of SIST is immediately apparent. Moreover, the temporary nature of pretrial detention makes it unlikely that the constitutional issue will be decided before a respondent's dispositional hearing. Hence, as an issue likely to arise in other cases, but likely to evade review, it meets the exception of mootness. See Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714-715, 431 N.Y.S.2d 400, 402, 409 N.E.2d 876, 878 (1980); see also Schall, 467 U.S. at 256 n.3; Matter of Miguel M. (Barron), 17 NY3d 37, 41 (2011).

Accordingly, the order of the Supreme Court, Bronx County (Colleen D. Duffy, J.), entered on or about August 10, 2011, which, upon finding that the pre-trial detention provisions of MHL § 10.06(k) are facially unconstitutional and ordered petitioner to immediately release respondent without supervision, should be reversed, on the law, without costs, the order for the respondent's unconditional release vacated, and the matter remanded for proceedings consistent with this decision and order. All concur. Order, Supreme Court, Bronx County (Colleen D. Duffy, J.), entered on or about August 10, 2011, reversed, on the law, without costs, order directing respondent's unconditional release vacated, and the matter remanded for proceedings consistent with this decision and order.

Opinion by Catterson, J. All concur. Tom, J.P., Catterson, DeGrasse, Richter, Manzanet-Daniels, JJ.



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