State v. Williams

• Decision Date: 17 February 2012
• Citation: 92 A.D.3d 1274,2012 N.Y. Slip Op. 01295,938 N.Y.S.2d 717
• Parties: In the Matter of the STATE of New York, Petitioner–Respondent, v. Nushawn WILLIAMS, also known as Shyteek Johnson, Respondent–Appellant. (Appeal No. 2.)
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 01295

92 A.D.3d 1274

938 N.Y.S.2d 717

In the Matter of the STATE of New York, Petitioner–Respondent,

v.Nushawn WILLIAMS, also known as Shyteek Johnson, Respondent–Appellant. (Appeal No. 2.)

Supreme Court, Appellate Division, Fourth Department, New York.

Feb. 17, 2012.

Davison Law Office, PLLC, Canandaigua (Mark C. Davison of Counsel), for Respondent–Appellant.

Eric T. Schneiderman, Attorney General, Albany (Michael J. Connolly of Counsel), for Petitioner–Respondent.

PRESENT: SCUDDER, P.J., FAHEY, CARNI, SCONIERS, AND MARTOCHE, JJ.

MEMORANDUM:

Respondent appeals from an order granting his motion for, inter alia, leave to reargue his prior motion to dismiss the petition in this Mental Hygiene Law article 10 proceeding and, upon reargument, adhering to the original decision denying the motion to dismiss. Respondent was convicted upon his plea of guilty of reckless endangerment in the first degree (Penal Law § 120.25) in Supreme Court, Bronx County, and, eight days later, he was convicted upon his plea of guilty of two counts of rape in the second degree (former § 130.30) and one count of reckless endangerment in the first degree (§ 120.25) in Chautauqua County Court. Respondent was sentenced to concurrent indeterminate terms of imprisonment of 2 to 6 years on the rape convictions and an indeterminate term of imprisonment of 2 to 6 years on the reckless endangerment conviction in Chautauqua County, to run consecutively to the sentences for rape. He was also sentenced to an indeterminate term of imprisonment of 2 to 6 years on the reckless endangerment conviction in Bronx County, to run concurrently with all Chautauqua County sentences. The convictions arose from a series of acts in which respondent had unprotected sex with multiple female victims without disclosing that he was HIV-positive.

Petitioner commenced this proceeding pursuant to Mental Hygiene Law § 10.06(a) approximately four days before respondent's maximum release date and while he was still in the custody of the Department of Correctional Services (DOCS), alleging that respondent was a detained sex offender requiring civil management ( see § 10.03[g] ). Respondent moved to dismiss the petition on the ground that he did not qualify as a “detained sex offender” pursuant to article 10. In support of the motion, respondent contended that the sentence for reckless endangerment in Chautauqua County ran consecutively to the sentences for rape and, at the time the proceeding was commenced, respondent was serving only the sentence for reckless endangerment, which is not a covered offense pursuant to article 10. Petitioner opposed the motion, contending that respondent was serving a sentence for a “related offense” pursuant to section 10.03(g)(1) when it commenced the proceeding and that respondent was still in the custody of DOCS on the sex offenses at that time because the sentences for rape and reckless endangerment had merged pursuant to Penal Law § 70.30(1)(b). Supreme Court, Chautauqua County, denied the motion.

Respondent thereafter moved for reconsideration of the motion to dismiss on the ground that the court was required to follow the decision of the First Department in Matter of State of New York v. Rashid, 68 A.D.3d 615, 892 N.Y.S.2d 76, affd. 16 N.Y.3d 1, 917 N.Y.S.2d 16, 942 N.E.2d 225. In that case, the Court concluded that the respondent was not subject to civil management pursuant to Mental Hygiene Law article 10 because he had served his sentence for the sex offenses in question and was on parole for a nonsexual offense at the time the proceeding was...