People ex rel. Neville v. Toulon
| Decision Date | 19 April 2023 |
| Docket Number | 2020-04808,Index No. 602/20 |
| Parties | The People of the State of New York, ex rel. Michael D. Neville, on behalf of Ralph S. (Anonymous) v. Errol D. Toulon, etc., et al., respondents. |
| Court | New York Supreme Court — Appellate Division |
Michael D. Neville, Garden City, NY (Timothy M. Riselvato and Dennis B. Feld of counsel), appellant pro se.
Letitia James, Attorney General, New York, NY (Steven C. Wu and Matthew W. Grieco of counsel), for respondent Ann Marie T. Sullivan.
ANGELA G. IANNACCI, J.P. ROBERT J. MILLER DEBORAH A. DOWLING HELEN VOUTSINAS, JJ.
DECISION & ORDER
In a habeas corpus proceeding, the petitioner appeals from a judgment of the Supreme Court, Suffolk County (C. Randall Hinrichs, J.), dated March 10, 2020. The judgment denied the petition and, in effect, dismissed the proceeding.
ORDERED that the judgment is modified, on the law and in the exercise of discretion, by deleting the provision thereof denying the petition and, in effect, dismissing the proceeding, and adding thereto a provision converting the proceeding into an action for a declaratory judgment, deeming the order to show cause to be the summons and the petition to be the complaint (see CPLR 103[c]), and declaring that the provision of Mental Hygiene Law § 10.11(d)(4) that directs the court to determine whether there is probable cause to believe that a respondent in a proceeding pursuant to Mental Hygiene Law article 10 is a dangerous sex offender requiring confinement based upon a review of the allegations in a petition for confinement and any accompanying papers does not violate that respondent's federal or state rights to due process; as so modified, the judgment is affirmed, without costs or disbursements.
On March 30, 2006, Ralph S. was convicted of sexual abuse in the first degree, upon his plea of guilty, and sentenced to a period of incarceration. Prior to Ralph S.'s release, the State of New York commenced a proceeding pursuant to Mental Hygiene Law article 10 for the civil management of Ralph S. In 2010, after it was determined that Ralph S. suffered from a "mental abnormality" (id. § 10.03[i]), and that he was a "dangerous sex offender requiring confinement" (id. § 10.03[e]) Ralph S. was committed to a secure treatment facility for care, treatment, and control (see id. § 10.07[f]).
In October 2016, upon a petition filed by Ralph S., it was determined that he was no longer a "dangerous sex offender requiring confinement" (id. § 10.03[e]), but a "sex offender requiring strict and intensive supervision" (id. § 10.03[r]). Ralph S. was therefore released to a regimen of strict and intensive supervision and treatment (hereinafter SIST) (see id. § 10.11).
On December 19, 2019, pursuant to Mental Hygiene Law § 10.11(d)(1), Ralph S. was taken into custody because he allegedly violated conditions of the SIST regimen by ingesting alcohol and tampering with equipment monitoring his alcohol use on multiple occasions. On December 23, 2019 Ralph S. was evaluated by a licensed psychologist employed by the New York State Office of Mental Health, who concluded, in light of the alleged violations, that Ralph S. was a dangerous sex offender requiring confinement (see id. §§ 10.11[d][1]; 10.03[e]). On December 24, 2019, the State filed a petition for confinement of Ralph S., essentially seeking to revoke Ralph S.'s SIST regimen and to have him committed to a secure treatment facility (see id. § 10.11[d][2]). The same day, pursuant to Mental Hygiene Law § 10.11(d)(4), the Supreme Court found, based upon the allegations in the petition for confinement, that there was probable cause to believe that Ralph S. was a dangerous sex offender requiring confinement, and authorized the State to retain Ralph S. at the Suffolk County Jail pending resolution of the petition for confinement.
The petitioner thereafter commenced this habeas corpus proceeding on behalf of Ralph S., asserting that Ralph S. was detained in violation of his federal and state due process rights (see U.S. Const, Amend XIV, § 1; NY Const, art I, § 6) and demanding his immediate release. Specifically, the petitioner asserted that the provision of Mental Hygiene Law § 10.11(d)(4) that directed the Supreme Court to determine whether there was probable cause to believe that Ralph S. was a dangerous sex offender requiring confinement based only upon the allegations of the petition for confinement and any accompanying papers, with no opportunity for him to be heard, was unconstitutional on its face and as applied to him. In a judgment dated March 10, 2020, the court denied the petition and, in effect, dismissed the proceeding. The petitioner appeals.
As an initial matter, after the judgment was issued, the Supreme Court, after a hearing, denied the State's petition for confinement, and Ralph S. was released to the SIST regimen. Thus, this appeal has been rendered academic (see People ex rel. Smith v Fields, 189 A.D.3d 866; People ex rel. Seda v Hansell, 157 A.D.3d 897). However, review of this appeal is warranted under "the traditional exception to the mootness doctrine allowing courts to consider substantial and novel issues that are likely to be repeated and will typically evade review" (People ex rel. Johnson v Superintendent, Adirondack Corr. Facility, 36 N.Y.3d 187, 196 [internal quotation marks omitted]; see Matter of Hearst Corp. v Clyne, 50 N.Y.2d 707, 714-715). The issues to be decided are (1) likely to recur, as the statute in question broadly applies to all SIST revocation proceedings (see Mental Hygiene Law § 10.11[d][1]), (2) typically will evade our review because petitions for confinement will usually be determined "before the appellate process is completed" (People ex rel. Molinaro v Warden, Rikers Is., ___ N.Y.3d ___, ___, 2022 NY Slip Op 07093, *2), and (3) constitute substantial constitutional questions that have yet to be determined by this Court. Since habeas corpus relief no longer lies in light of Ralph S.'s release, however, we convert the habeas corpus proceeding into a declaratory judgment action (see People ex rel. Molinaro v Warden, Rikers Is., ___ N.Y.3d at ___ n 2, 2022 NY Slip Op 07093, *2 n 2; People ex rel. Johnson v Superintendent, Adirondack Corr. Facility, 36 N.Y.3d at 196; People ex rel. DeLia v Munsey, 26 N.Y.3d 124, 129 n 2).
The Due Process Clauses of the United States and New York Constitutions guarantee that when the State seeks to deprive an individual of liberty, it must "provide effective procedures that guard against erroneous deprivation" (People v David W., 95 N.Y.2d 130, 136). "[D]ue process is flexible," however, and "calls for such procedural protections as the particular situation demands" (Morrissey v Brewer, 408 U.S. 471, 481). In determining whether due process has been provided, the courts consider three factors: "(1) the private interest affected; (2) the risk of erroneous deprivation through the procedures used and the probable value of other procedural safeguards; and (3) the government's interest" (County of Nassau v Canavan, 1 N.Y.3d 134, 142; see Matthews v Eldridge, 424 U.S. 319, 335).
Mental Hygiene Law § 10.11 permits the court to revoke a regimen of SIST upon a violation of SIST conditions and sets forth the required procedures for such a revocation (see id. § 10.11[d][1]). The statute provides, as relevant here, that if a parole officer has "reasonable cause to believe" that a sex offender requiring SIST has violated a condition thereof, the offender can be taken into custody for five days for an evaluation by a psychiatric examiner, and the attorney general and the Mental Hygiene Legal Service (hereinafter MHLS) are to be promptly notified (id.). The attorney general may then file a petition for confinement within five days after the offender is taken into custody, which petition must be served promptly on MHLS, and counsel must be appointed for the offender (see id. § 10.11[d][2], [3]). If a petition for confinement is filed, "the court shall promptly review the petition and, based on the allegations in the petition and any accompanying papers, determine whether there is probable cause to believe that the [offender] is a dangerous sex offender requiring confinement" (id. § 10.11[d][4]). There is no provision permitting the offender an opportunity to be heard prior to the probable cause determination. Once the probable cause determination is made, the offender may be retained pending the conclusion of the proceeding (see id.). "Within thirty days after a petition for confinement is filed..., the court shall conduct a hearing" to make a final determination, but the failure to commence the hearing within that time period does not result in dismissal of the petition or "affect the validity of the hearing or the determination" (id.).
The petitioner contends, first, that the provision of this statute directing that a probable cause determination be made on the allegations of the petition for confinement and any accompanying papers, without giving the offender an opportunity to be heard on that issue, is facially unconstitutional. "'A party mounting a facial constitutional challenge bears the substantial burden of demonstrating that in any degree and in every conceivable application, the law suffers wholesale constitutional impairment'" (Matter of E.S. v P.D., 8 N.Y.3d 150, 158, quoting Matter of Moran Towing Corp. v Urbach, 99 N.Y.2d 443, 448). That is, "'the challenger must establish that no set of circumstances exists under which the Act would be valid'" (Matter of Moran Towing Corp. v Urbach, 99 N.Y.2d at 448, quoting United States v Salerno, 481 U.S. 739, 745).
Here the petitioner has not met this substantial burden. Undoubtedly, as has been recognized, there are "important liberty interests at...
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