State v. Maurice G.

• Decision Date: 06 May 2011
• Citation: State v. Maurice G., 32 Misc.3d 380, 928 N.Y.S.2d 162, 2011 N.Y. Slip Op. 21167 (N.Y. Sup. Ct. 2011)
• Parties: The STATE of New York, Petitioner,v.MAURICE G., Respondent.
• Court: New York Supreme Court

32 Misc.3d 380

928 N.Y.S.2d 162

2011 N.Y. Slip Op. 21167

The STATE of New York, Petitioner,

v.MAURICE G., Respondent.

Supreme Court, Bronx County, New York.

May 6, 2011.

Mental Hygiene Legal Service, New York City (Marvin Bernstein, Deborah Mantell and Charles Hargreaves of counsel), for respondent.Eric T. Schneiderman, Attorney General, White Plains (Shelley Forde of counsel), for petitioner.COLLEEN DUFFY, J.

On April 14, 2010, the Attorney General of the State of New York (“Attorney General” or “the State”), filed a petition contending that Respondent Maurice G. (“Respondent”) is a detained sex offender who has a mental abnormality, as that term is defined in Article 10 of the New York State Mental Hygiene Law (“MHL” or “Article 10”) § 10.03, such that Respondent should be confined or supervised by the Office of Mental Health once his prison sentence is completed.

On March 7, 2011, Respondent filed a motion to dismiss the petition contending that, as he is now serving an additional period of incarceration for violating the terms of his parole with respect to the conviction at issue and is not eligible again for parole until August 16, 2013, the petition should be dismissed: (1) for failure to state a cause of action; (2) for lack of subject matter jurisdiction because there is no ripe controversy; and (3) for violation of Respondent's due process rights. Memorandum of Law In Support of Motion to Dismiss (hereinafter, “Mem. In Support”), p. 1. Respondent also requests a summary determination dismissing the petition pursuant to CPLR 409(b). Id.

For all of the reasons set forth below, the Court grants Respondent's motion to dismiss for lack of subject matter jurisdiction because the relief sought by Petitioner—civil management for Respondent—is too remote; it could not be granted even if the jury were to find that Respondent now suffers from a mental abnormality as Respondent will be penally incarcerated until 2013.

Moreover, the condition precedent for Article 10 civil management is a jury determination of the mental condition of Respondent at the time civil management is necessary. Here, there can be no immediate consequence to any determination today that Respondent should be subject to the strictures of civil management as he currently cannot be civilly managed.

Any such determination today as to Respondent's mental condition would be not only speculative and/or hypothetical as to what the Respondent's mental condition will be at the time he could be subject to civil management (when he is about to be released into the community), it also would be inconsistent with the intent and requirements of the statute. Accordingly, as any determination in this action would have no immediate consequence and would only be hypothetical and speculative (as well as inconsistent with the statute), the matter is dismissed for lack of subject matter jurisdiction.

In light of this Court's dismissal of the action on these grounds, the Court need not reach the merits of the petition.

I. PROCEDURAL HISTORY

On March 19, 2009, Respondent pleaded guilty to Sexual Abuse in the First Degree (Contact by Forcible Compulsion), PL 130.65, and, on April 9, 2009, was sentenced to a determinate term of incarceration of two years in state prison, with three years post release supervision.

Respondent was due to be released from incarceration on April 17, 2010.

On April 14, 2010, the State filed an Order to Show Cause and Verified Petition seeking a determination that Respondent is a detained sex offender in need of civil management pursuant to Article 10 of the Mental Hygiene Law and an order directing that Respondent be detained pending a determination of the matter.

On April 23, 2010, the Honorable Michael A. Gross, Acting Supreme Court Justice, held a probable cause hearing and found that probable cause exists to believe that Respondent is a detained sex offender requiring civil management pursuant to Mental Hygiene Law § 10.06(k). The Court further found that Respondent would be a danger to society if he were released pending trial, and ordered that he be committed to a secure treatment facility, once his incarceration was completed, pending trial on the petition.

Respondent was thereafter transferred from the custody of the New York State Department of Corrections (“DOCS”) to the Central New York Psychiatric Center (CNYPC) on or about July 30, 2010.

While at CNYPC, Respondent was criminally charged with Harassment in the Second Degree, PL 240.26, stemming from an altercation and assault incident that occurred there, and, on December 15, 2010, Respondent was convicted of that charge, after a bench trial. Respondent was sentenced to serve fifteen days in Oneida County Correctional Facility.

As a result of that conviction, the Division of Parole (“DOP”) filed a violation against Respondent contending that he violated the terms of his post release supervision, and, on January 10, 2011, a violation hearing was held before Administrative Law Judge David M. Stanton, in Oneida County.

At the hearing, Respondent admitted the violation in that he failed to complete the sex offender program at CNYPC and he made threats against a staff member at CNYPC. On January 14, 2011, DOP revoked Respondent's release and affirmed Judge Stanton's recommendation that Respondent be incarcerated for the remainder of the entire period that was to have been his post release supervision—an additional period of incarceration of two years, seven months and fifteen days. Respondent was returned to the custody of DOCS to serve that time. Respondent's earliest release date is now August 16, 2013.

Respondent contends that the Article 10 petition now is unripe, as his anticipated release date on the sex offense underlying his prison sentence is not until August of 2013 and Article 10 requires that a sex offender be nearing an “anticipated release date” before a petition may be filed against him. According to Respondent, this lack of ripeness requires dismissal pursuant to CPLR 3211(a)(2). Respondent also contends that the change in Respondent's release date destroys the State's cause of action, requiring dismissal for failure to state a cause of action under CPLR 3211(a)(7), and that adjudicating this petition at this time for civil management would violate Respondent's substantive and procedural due process rights under the New York State and United States Constitutions. Respondent also contends that there is no possible interpretation of the evidence by which the State can prove that Respondent needs civil management and seeks a summary determination dismissing this matter under CPLR 409(b).

For the reasons discussed below, Respondent's motion to dismiss is granted and the petition is dismissed for lack of subject matter jurisdiction, without prejudice to the State to file a new petition at such time as subject matter jurisdiction exists.

II. THE STATUTORY FRAMEWORK OF ARTICLE 10

In 2007, the New York State Legislature passed The Sex Offender Management and Treatment Act (“SOMTA”), which, among other things, includes Article 10 of the Mental Hygiene Law of New York State, with the stated goal of addressing the danger to society posed by recidivist sex offenders. MHL § 10.01(a). The act was signed into law by then-Governor Eliot Spitzer on March 14, 2007, and became effective April 13, 2007.

Determining that some sex offenders have mental abnormalities that predispose them to engage in repeated sex offenses, the Legislature enacted SOMTA which provides that a person who is determined to be a detained sex offender with a mental abnormality, as those terms are defined in § 10.03(g) and (I),¹ WOULD BE SUBJECt to civil management after that person had served his or her criminal sentence. MHL § 10.01(b)- (g). Civil management may take the form of either civil confinement in a secure treatment facility or strict and intensive supervision (“SIST”). MHL §§ 10.01(b), (c), (d) and 10.07(f).

The notice requirements of Article 10, provide that, when a sex offender is nearing an anticipated release date from incarceration or detention, the agency that is responsible for supervising the respondent at that point in time (“the agency with jurisdiction”) ² must give notice to the State of that release date. MHL §§ 10.05(b) and 10.03(a).³

SOMTA provides that, within a specified time frame, upon the filing of a petition seeking a determination that a respondent is a detained sex offender requiring civil management, either a Supreme or County Court judge shall hold a probable cause hearing to determine whether there is probable cause for such a determination. MHL § 10.06(g)-(k).

If the court determines that such probable cause exists, that matter is held over for trial before a twelve person jury, or a judge if the respondent in that case waives a trial by jury. The petitioner (the State of New York through the office of the Attorney General) carries the burden of proving that the respondent in the matter is a detained sex offender who has a mental abnormality by clear and convincing evidence. MHL § 10.06(a) and (b).

Pursuant to SOMTA, in order to be subject to civil management as set forth in MHL § 10.01, et seq. , the person must have been convicted of a sex offense, as defined in Article 10. MHL § 10.03(p).⁴

III. LEGISLATIVE INTENT ⁵

New York is one of 18 states, along with the District of Columbia and the federal government, to have enacted civil confinement statutes such as SOMTA with the intent of addressing “a compelling need ... to protect residents of this state from sex criminals whose recidivism is predictable and uncontrollable.” See, e.g., MHL § 10.01(a), (b), (c), (e) and (f); see also, Governor's Program Bill 2007 Memorandum, Bill Jacket, L. 2007, ch. 7, at 10.

The Legislature, in enacting SOMTA, noted that SOMTA establishes comprehensive reforms to enhance public safety by allowing the state to manage sex offenders upon the expiration of their...