| Matter of State of New York v Humberto G. |
| 2009 NY Slip Op 06335 [65 AD3d 690] |
| August 25, 2009 |
| Appellate Division, Second Department |
| In the Matter of State of New York,Appellant, v Humberto G., Respondent. |
—[*1] Mental Hygiene Legal Service, Mineola, N.Y. (Sidney Hirschfeld, Dennis B. Feld, andRachael E. Seevers of counsel), for respondent.
In a proceeding pursuant to Mental Hygiene Law article 10 for the civil management ofHumberto G., an alleged sex offender, the petitioner appeals from an order of the SupremeCourt, Kings County (Dowling, J.), dated March 6, 2009, which granted the respondent's motionto dismiss the petition.
Ordered that the order is affirmed, without costs or disbursements.
In April 2001, Humberto G. (hereinafter the respondent) was sentenced to a determinateterm of imprisonment of seven years upon his conviction of attempted rape in the first degree.Although the Supreme Court did not impose a period of postrelease supervision at sentencing,the Department of Correctional Services (hereinafter DOCS) administratively imposed suchsupervision upon the respondent's release in January 2007. On the date of his release, therespondent was transferred directly to an Office of Mental Health (hereinafter OMH)sex-offender treatment program at the Central New York Psychiatric Center (hereinafterCNYPC) pursuant to Mental Hygiene Law § 9.13 as a voluntary patient.
In July 2007 the respondent violated the terms of his administratively-imposed postreleasesupervision and was returned to the custody of DOCS. In September 2008 DOCS provided OMHand the Attorney General with notice that respondent may be a detained sex offender who wasnearing his anticipated release date (see Mental Hygiene Law § 10.05 [b]). OMHconducted an evaluation pursuant to Mental Hygiene Law article 10 and the State of New Yorkthereafter commenced the instant proceeding by filing a sex offender civil management petition(see Mental Hygiene Law § 10.06 [a]).
At a resentencing hearing before the Supreme Court, Kings County, in October 2008, thecourt declined to impose a period of postrelease supervision in accordance with the prosecutor'sdecision not to seek such supervision; however, the respondent remained in the custody ofDOCS pending the determination of this proceeding.[*2]
The Supreme Court granted the respondent's motion todismiss the petition on the ground that the respondent was not a "detained sex offender," as thatterm is defined by Mental Hygiene Law § 10.03 (g) (5), because DOCS was not an"agency with jurisdiction" (Mental Hygiene Law § 10.05 [b]) due to its unlawful detentionof the respondent pursuant to an administratively-imposed period of postrelease supervision. TheState appeals.
Pursuant to Mental Hygiene Law § 10.05 (b), "[w]hen it appears to an agency withjurisdiction . . . that a person who may be a detained sex offender is nearing ananticipated release, the agency shall give notice of that fact to the[A]ttorney [G]eneral and to the[C]ommissioner of [M]ental [H]ealth." An agency with jurisdiction is defined as "that agencywhich, during the period in question, would be the agency responsible for supervising orreleasing such person" (Mental Hygiene Law § 10.03 [a]). A detained sex offender isdefined as someone who is, among other things, "in the care, custody, control, or supervision ofan agency with jurisdiction" with respect to a conviction for a sex offense (Mental Hygiene Law§ 10.03 [g]).
Since the respondent was not lawfully in the custody of DOCS when the article 10 reviewwas commenced, DOCS was not an agency with jurisdiction and, thus, the respondent was not adetained sex offender (see People ex rel.Joseph II. v Superintendent of Southport Correctional Facility, 59 AD3d 921, 922[2009]; Matter of State of New York vRandy M., 57 AD3d 1157, 1159 [2008]). Furthermore, the fact that the respondent hadbeen admitted to a hospital facility operated by OMH pursuant to Mental Health Law §9.13 did not render him a detained sex offender under Mental Hygiene Law § 10.03 (g)(5). DOCS initiated the article 10 review in September 2008 when it gave notice to the AttorneyGeneral and OMH pursuant to section 10.05 (b), even though DOCS was not an agency withjurisdiction at that time (see People ex rel. Joseph II. v Superintendent of SouthportCorrectional Facility, 59 AD3d at 922; People ex rel. David NN. v Hogan, 53 AD3d 841, 843 [2008],lv denied 11 NY3d 708 [2008]). Accordingly, as the notice was not properly issued byan agency with jurisdiction concerning a detained sex offender, the Supreme Court properlygranted the respondent's motion to dismiss the petition.
The remaining contentions of the State are raised for the first time on appeal and thereforeare not properly before this Court (see Matter of Bart v Miller, 302 AD2d 379 [2003];Sandoval v Juodzevich, 293 AD2d 595 [2002]; Koehler v Town of Smithtown,280 AD2d 648 [2001]). Rivera, J.P., Florio, Dickerson and Austin, JJ., concur.