DOCS

This is a proceeding involving Article 10 of the Mental Hygiene Law, enacted in 2007, which provides that certain imprisoned sex crimes offenders may be transferred to mental hospitals, rather than being released, when their prison terms expire. The statute raises important questions concerning the procedural and substantive rights of the prisoners to whom it applies, but those questions are not before us in this case. The court is faced with the issue of whether the statute applies to a particular class of prisoners: those who were incarcerated for violating the conditions of a term of postrelease supervision (PRS) that was improperly added to their sentences by the Department of Correctional Services (DOCS) without court authorization. The court holds that these prisoners are within the coverage of the statute even if the procedure that led to their imprisonment was flawed.

Both of these cases involve men convicted of serious sex crimes – assaults of vulnerable strangers on the street. JJ assaulted a child while HH assaulted a developmentally disabled adult. Both were sentenced to imprisonment. Both were required by statute to be sentenced also to a term of PRS. However, as happened in a number of cases before our decisions in Matter of Garner v. New York State Dept. of Correctional Servs., and People v. Sparber, the sentencing court failed to impose the PRS term. DOCS nevertheless included PRS in its record of each man’s sentence-a practice the court decided in Garner was unlawful.

JJ completed his prison sentence in August 2006, and HH completed his in January 2007. Both men began their improperly-imposed PRS terms-not in the community, but in a psychiatric hospital. Mental Hygiene Law article 10 had not then been enacted, but JJ was involuntarily committed to a hospital under article 9 of the Mental Hygiene Law and HH committed himself voluntarily, also under article 9 of the Mental Hygiene Law § 9.13). Both, while in the hospital, violated the terms of their PRS-JJ by an escape attempt and HH by an assault to a fellow patient-and both were returned to prison.

Article 10 became effective on 13 April 2007. At first the State took no action under the new statute in either case, presumably because there seemed no imminent prospect that either would be released. But our April 2008 decision in Garner changed that, making clear that the PRS terms that had allowed the State to reincarcerate both were unlawful. Correction Law § 601-d and Penal Law § 70.85, enacted in response to Garner and Sparber and effective 30 June 2008, effectively give prosecutors in such cases a choice either to seek resentencing or to forgo PRS, and in the autumn of 2008 the prosecutors in JJ and HH’s cases chose the latter option. Faced with the prospect that the men would soon be freed, the State began article 10 proceedings, asking that each man be found “a sex offender requiring civil management” and be held in custody past his scheduled release date.

Both contended that article 10 did not apply to them. They asserted that they were not “detained sex offenders” within the meaning of that article, because their PRS terms, and thus their imprisonment resulting from violations of PRS conditions, were unlawful. Both succeeded, using different procedural vehicles. Joseph, after his release from custody was stayed under article 10, began a habeas corpus proceeding, which Supreme Court dismissed; the Appellate Division reversed and granted the writ. HH made a motion to dismiss the article 10 proceeding against him, which Supreme Court granted; the Appellate Division affirmed. The court granted the leave to appeal in both cases, and now reverses.

Mental Hygiene Law § 10.03(g) defines “detained sex offender.” The part of the definition that is relevant to this case says:

“(g) ‘Detained sex offender’ means a person who is in the care, custody, control, or supervision of an agency with jurisdiction, with respect to a sexual abuse offense or designated felony, in that the person is –

“(5) A person convicted of a sex offense who is, or was at any time after September first, two thousand five, a patient in a hospital operated by the office of mental health, and who was admitted directly to such facility pursuant to article nine of this title or section four hundred two of the correction law upon release or conditional release from a correctional facility.”

In the case at bar, defendants are clearly persons of the kind described in subsection (5). Both were patients in a hospital operated by the Office of Mental Health after 1 September 2005, and both were admitted to the hospital under Mental Hygiene Law article 9 directly upon release or conditional release from a correctional facility – JJ involuntarily and HH voluntarily. HH argues that subsection (5) applies only to involuntary patients, but the plain text of the statute contradicts that argument.

The court notes that the introductory language of section 10.03(g) fits JJ and HH. It is beyond dispute that, when the article 10 proceedings began, they were in fact in DOCS’s custody, and DOCS can be an “agency with jurisdiction”. Nor can it be doubted that each man was confined “with respect to a sex offense.” JJ and HH argue, however, that “custody” must mean lawful custody and that since their confinement was unlawful under Garner, the definition of “detained sex crimes offender” cannot apply to them.

The court rejects this argument.

No doubt it is often reasonable to read “custody” as implying “lawful custody.” Here, however, the statute is best read as making no distinction between those properly and improperly confined. Article 10 is the result of our decision in Harkavy I, which drew a distinction between prison inmates and other people. The sex offenders on whose behalf Harkavy I was brought argued that Mental Hygiene Law article 9, which generally governs the commitment of mentally ill people to hospitals, could not be applied to them because they were prisoners, and therefore subject to the more specific provisions of Correction Law § 402 for commitment of “any person undergoing a sentence of imprisonment”. Accepting that argument, the court held that “the Legislature intended the procedures of Correction Law § 402 to be used to evaluate for commitment all imprisoned persons”. The prisoners in Harkavy I sought this result, apparently because they preferred section 402 procedures to those used under article 9. The court referred in Harkavy I to section 402’s “attendant procedural requirements including court supervision, pretransfer notice and an opportunity to be heard within a reasonable period of time prior to the inmate’s proposed release date.”

If JJ and HH had been involved in the Harkavy I litigation, they would likely have argued that they were persons “undergoing a sentence of imprisonment” within the meaning of section 402, despite the fact that their “imprisonment” violated the law. And that argument would have been plainly correct. The point of Harkavy I was that the Legislature enacted certain procedures specifically designed for the transfer of inmates from prisons to mental hospitals. There is no reason why people whose confinement violated the law should not have been treated the same way as other inmates. And there is no reason to suppose that the Legislature intended to treat them differently when it enacted article 10, which provided a new way of dealing with the prisoners affected by the Harkavy I decision.

The court finds no injustice in holding prisoners situated as JJ and HH are to be within article 10’s scope. The point of the prisoner/non-prisoner distinction we recognized in Harkavy I is not that one group should be treated more or less favorably than the other, but that different situations may call for different procedures. Indeed, there is no apparent reason why the Legislature had to limit article 10 to “detained” sex abuse offenders. It could equally well have subjected all people who had committed sex offenses and were thought to be mentally ill-including those living in the community-to the procedures described in article 10. It chose not to do so, perhaps because it thought article 9 procedures adequate to deal with sex offenders who are not detained, or perhaps because it thought that those who are detained present a more serious threat to public safety.

The court is not to decide here whether there are any valid constitutional objections to article 10. But assuming, as the court must for present purposes, that it can be validly applied to lawfully detained prisoners, it can be applied with equal validity to those whose imprisonment resulted from a procedural error.

The court holds that such prisoners are within the statute’s coverage.

The court’s conclusion that JJ and HH are “detained sex offenders” subject to article 10 disposes of the only issue raised in the HH case. In the JJ case, one other issue requires brief attention.

JJ argues that he was entitled to notice and an opportunity to be heard before the issuance of an order under Mental Hygiene Law § 10.06(h) staying his release from DOCS’s custody. The State argues, and JJ does not dispute, that this claim is now moot, since JJ was released after the Appellate Division decision in his favor. JJ suggests, however, that we should exercise our discretion to decide a moot controversy where the issue presented is significant, likely to recur, and, because it arises in situations of relatively brief duration, apt to evade review.

The State does not challenge JJ’s assertion that the issue he raises is significant and likely to recur. It does dispute his claim that it will evade review. Without resolving that dispute, the court declines to address the issue here. It is barely alluded to in JJ’s habeas corpus petition, it was not discussed by either court below and the State, as appellant in this Court, has not briefed or argued the merits of the question. If this issue is one that should be addressed by means of the mootness exception, it can be addressed in some other case like date rape.

Accordingly, in People ex rel. Joseph II. v. Superintendent of Southport Correctional Facility et al., the order of the Appellate Division should be reversed, without costs, and the petition dismissed. In Matter of State of New York v. Humberto G., the order of the Appellate Division should be reversed, without costs, and Humberto G.’s motion to dismiss the article 10 proceeding denied.

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