| Matter of State of New York v Rashid |
| 2009 NY Slip Op 09525 [68 AD3d 615] |
| December 22, 2009 |
| Appellate Division, First Department |
| In the Matter of State of New York, Appellant, v MustafaRashid, Respondent. |
—[*1] Marvin Bernstein, New York (Diane Goldstein Temkin of counsel), for respondent.
Order, Supreme Court, New York County (Daniel P. Conviser, J.), entered on or about July1, 2009, which granted respondent's motion to dismiss the petition, unanimously affirmed,without costs.
Respondent was not subject to civil management pursuant to Mental Hygiene Law article 10where he had served his sentence for a 1988 rape and sodomy and was on parole for a nonsexualoffense and, in September 2008, the Division of Parole gave notice identifying him as a possible"detained sex offender" nearing release from custody. The different consequences of a SexualOffender Registration Act determination and the possibility of involuntary civil commitmentunder Mental Hygiene Law article 10 (compare People v Knox, 12 NY3d 60 [2009], with MentalHygiene Legal Serv. v Spitzer, 2007 WL 4115936, 2007 US Dist LEXIS 85163 [SD NY2007], affd 2009 WL 579445, 2009 US App LEXIS 4942 [2d Cir 2009]), as well as thespecific definition in the latter regarding which sentences other than those for sex offenses maybe considered in determining an offender's eligibility for civil management (see generally People v Finley, 10NY3d 647, 655 [2008]), render Penal Law § 70.30 inapplicable for the purpose ofmerging the sentence for the rape into respondent's subsequent sentence for the nonsexualoffense (cf. People v Buss, 11NY3d 553 [2008]). Contrary to the State's contention, Penal Law § 70.30 and MentalHygiene Law article 10 are not so related that they must be harmonized (cf. Rector, ChurchWardens & Vestrymen of St. Bartholomew's Church v Committee to Preserve St. Bartholomew'sChurch, 84 AD2d 309, 313 [1982], appeal dismissed 56 NY2d 645 [1982]).[*2]
We have considered the State's remaining contentionsand find them unavailing. Concur—Tom, J.P., Buckley, Catterson, Freedman andAbdus-Salaam, JJ. [Prior Case History: 25 Misc 3d 318.]