As to this second prong, as set forth further herein, the Court finds this provision in the statute is not so punitive as to negate the civil purpose conceived by the Legislature.

There is no dispute that SOMTA has both criminal and civil provisions, but each such provision expressly articulates its nature and its intent. The criminal aspects of the bill were codified in the Penal Law, in the creation of the new “sexually motivated penalty.”

With respect to Section 10.07(c), however, the Legislature’s intent is demonstrated by the label – “civil” – given to the provision by the Legislature, the way in which the provision was codified, and the enforcement procedures it establishes, all identifiers of legislative intent. In creating this “civil” commitment scheme in the Mental Hygiene Law, not the Penal Law, the Legislature’s purpose is obvious. Section 10.07(c) also was codified in the Mental Hygiene Law, not with the new crime in the Penal Law.

Moreover, the enforcement provisions in the Mental Hygiene Law are different than those provided for the crime of sexually motivated felony, and rely only on the civil commitment process, not the criminal justice system. These factors demonstrate that the Legislature’s intent was civil in nature; that is, to ensure that all appropriate persons, including those who committed crimes prior to SOMTA’s enactment, are screened for civil management. The Legislature did not intend this designation to be criminal.

For these reasons, the Court finds that the Legislature’s intent was civil in purpose when it created a process whereby a non-sex crime committed prior to SOMTA’s effective date may be determined by a civil jury to have been sexually motivated.

The Court also finds that Section 10.07(c) of Article 10 is not so punitive, either in purpose or in effect, as to negate the civil nature of the proceeding. Having examined the seven factors, the Court determines that Section 10.07(c) is not so punitive in either purpose or effect so as to negate its civil purpose.

Having considered and weighed the seven factors, the Court finds that Section 10.07(c) is civil in nature and is not so punitive in either purpose or effect so as to negate this civil intent. Only three of the seven factors – the fact that the sanction of civil management involves an affirmative disability or restraint, that the statute’s sanction only comes into play upon a finding of scienter, and that the behavior to which the sanction applies is already a crime – weigh in favor of a finding that Section 10.07(c)’s designation provision is punitive.

Moreover, each of these factors is mitigated by the purpose of the provision at issue. First, as to the affirmative restraint factor, here that restraint is civil, a less onerous restraint than a criminal restraint. Second, the scienter inquiry is a narrow one since each respondent already has been convicted of a serious crime beyond a reasonable doubt and the only issue is whether there was a sexual motivation to that crime. Third, while the behavior to which Section 10.07(c) applies already is a crime, like civil management, comparable regulatory disabilities triggered by criminal convictions have been upheld where there is an important state interest.

Most compelling in a review of the factors is that the State has a very important non-punitive purpose in enacting this designation provision and it has tailored a limited provision to deal with this purpose. Sex offenders who were convicted of non-sex crimes – at a time in the past when the distinction of being convicted of a sex crime or non-sex crime was meaningless, and prosecutors had little or no incentive to ensure that the sexual nature of a crime was somehow “captured” in the type of conviction – are being released into the community.

Designing a civil process, whereby certain convictions are examined to determine whether the crimes were sexually motivated and, if so, whether the offender suffers from a mental abnormality, as that term are defined, will enable the State to civilly manage many offenders who otherwise would be returned to the community, despite their mental abnormality. This provision is limited in scope, not excessive in relation to its purpose, and, while an offender’s liberty may be restrained through civil confinement, the Legislature’s stated purpose in protecting the public by preventing future sex crimes outweighs such interest.

In addition, the provision at issue serves only to expand the group of persons who may be subject to civil management. It does not, standing alone, make them subject to it. Section 10.07(c) and its concomitant definitional provisions designates certain crimes which are the condition precedent for a review of whether such crime was sexual motived at the time it was committed. Only if such sexual motivation is found, will that person be subject to an inquiry as to whether he (or she) suffer from a mental abnormality. This bifurcated finding serves to ensure that only those persons who now suffer from a mental abnormality, as defined, will be subject to civil management.

For all these reasons, the Court finds that Mental Hygiene Law §10.07(c) is not so punitive as to negate the civil intent of the Legislature.

Accordingly, the Court finds that, pursuant to both prongs of the requisite inquiry, Section 10.07(c) of Article 10 does not violate the Ex Post Facto Clause.