| Matter of State of New York v Nelson |
| 2011 NY Slip Op 07715 [89 AD3d 441] |
| November 3, 2011 |
| Appellate Division, First Department |
| In the Matter of State of New York, Respondent, v HaroldNelson, Appellant. |
—[*1] Eric T. Schneiderman, Attorney General, New York (Zainab A. Chaudhry of counsel), forrespondent.
Order, Supreme Court, New York County (Daniel P. Conviser, J.), entered December 17,2010, which denied respondent's motion to dismiss the State of New York's petition for sexoffender civil management pursuant to the Sex Offender Management and Treatment Act (L2007, ch 7), unanimously affirmed, without costs.
Respondent was convicted in 1995 of kidnapping in the second degree and promotingprostitution in the second degree, based on conduct that included abducting his victim,restraining her for more than 12 hours, repeatedly raping her and engaging in deviate sexualintercourse and forcing her to engage in prostitution. Petitioner filed a sex offender civilmanagement petition pursuant to the Sex Offender Management and Treatment Act (SOMTA orarticle 10), alleging inter alia that respondent was a sex offender requiring civil management, thatthe acts underlying his conviction were "sexually motivated" within the meaning of MentalHygiene Law § 10.03 (s), and that he therefore had been convicted of a "sex offense"within the meaning of Mental Hygiene Law § 10.03 (p). Respondent moved to dismiss thepetition, claiming that the statute violated various constitutional protections.
We reject respondent's claim that the statutory provisions retroactively transformed hisnon-sex felony convictions into "sexually motivated felonies" in violation of the Ex Post FactoClause. To determine whether the prohibition against retroactive punishment forbidden by the ExPost Facto Clause applies, a court must first determine whether the legislature meant the statuteto enact a regulatory scheme that is civil and nonpunitive (Smith v Doe, 538 US 84, 92[2003]; see Kansas v Hendricks, 521 US 346, 361 [1997]). If so, the court must examinewhether the statute is "so punitive either in purpose or effect as to negate [the legislature's]intention to deem it civil" (Smith v Doe, 538 US at 92 [citations and internal quotationmarks omitted]). "[O]nly the clearest proof will suffice to override legislative intent andtransform what has been denominated a civil remedy into a criminal penalty" (id.).
We conclude that the proceedings under SOMTA are nonpunitive civil proceedings to whichthe Ex Post Facto Clause is inapplicable. The determination of whether a designated felony wassexually motivated is simply a screening device to determine which offenders convicted of [*2]designated felonies prior to the enactment of article 10 are eligiblefor civil management. The Legislature sought to provide past offenders with the treatment theyneeded and also to protect the public; although these provisions require a finding of sexualmotivation, it does not automatically follow that the Legislature was masking punitive provisionsbehind the veneer of a civil statute (see Doe v Pataki, 120 F3d 1263, 1277-1278 [2d Cir1997], cert denied 522 US 1122 [1998]).
Nor was the retroactive "sexually motivated" designation punitive in effect. While a personfound to be a sex offender in need of civil management will be subject to an affirmative disabilityor restraint, civil commitment for the purposes of mental health treatment has historically notbeen considered punishment, and similar civil management laws have been found not toimplicate either of the traditional aims of punishment—retribution and deterrence (seeHendricks, 521 US at 361-362; Kennedy v Mendoza-Martinez, 372 US 144, 168[1963]).
We further find respondent's challenge on due process grounds to be without merit. SOMTAprovides that its civil management provisions may apply to offenders convicted of designatedfelonies where the State proves by "clear and convincing evidence" that the conduct underlyingthe conviction was sexually motivated (Mental Hygiene Law § 10.07 [c], [d]). The "clearand convincing" standard set forth in Mental Hygiene Law § 10.07 [d] is in accordancewith Addington v Texas (441 US 418 [1979]). Since article 10 is a civil managementscheme and does not impose criminal detention or other punitive consequences, due process doesnot require a higher standard of proof (see Mathews v Eldridge, 424 US 319, 334-335[1976]; Matter of State of New York vFarnsworth, 75 AD3d 14, 29 [2010], appeal dismissed 15 NY3d 848 [2010]).
Finally, we conclude that the application of a clear and convincing standard to designatedfelony offenders convicted prior to SOMTA's effective date does not violate equal protectionguarantees. Article 10 was enacted to provide treatment for those with mental abnormalitieswhich predispose them to engaging in repeated sex offenses and to protect the public from thedanger of sexual predators, compelling governmental objectives (see Farnsworth, 75AD3d at 31; People v Taylor, 42AD3d 13, 16 [2007], lv dismissed 9 NY3d 887 [2007]; Mental Hygiene LegalServ. v Spitzer, 2007 WL 4115936, *20, 2007 US Dist LEXIS 85163, *70 [SD NY 2007],affd 2009 WL 579445, 2009 US App LEXIS 4942 [2d Cir 2009]). Designated felony sexoffenders under article 10 fall into two categories—those who have committed past crimesand those committing crimes after the statute's effective date. The Legislature handledprospective felony sex offenders by creating a new crime, which could not be appliedretroactively to past offenders under the Ex Post Facto Clause. Thus, in a distinction that wasnarrowly tailored to serve the State's compelling interest, the Legislature provided for designationof past offenders under a "clear and convincing" standard, which would permit the State to detainand treat dangerous past sex offenders.
We recognize that a federal district court sitting in New York has found Mental Health Law§ 10.07 (c) and (d) to be facially unconstitutional, insofar as the statute purports to applythe term "sex offender" and its attendant consequences based only on a finding by clear andconvincing evidence, and has permanently enjoined the defendant in that case from enforcingthose provisions (see Mental Hygiene Legal Serv. v Cuomo, 785 F Supp 2d 205 [SD NY2011]), raising questions of mootness and subject matter jurisdiction.
We agree with the view expressed by our sister court in Matter of State of New York v Daniel OO. (88 AD3d 212, 216 [3rdDept 2011]), that the instant [*3]proceeding is not rendered mootdue to the pendency of the federal action. The current injunction does not prohibit civilmanagement of sex offenders, but rather mandates use of a reasonable doubt standard indetermining whether a respondent has committed conduct constituting a sex offense. If theinjunction is vacated on appeal, the statute would go back into full force and effect. As the ThirdDepartment noted in State v Daniel OO., in "passing on federal constitutional questions,the state courts and the lower federal courts have the same responsibility and occupy the same[position]; there is parallelism but not paramountcy for both sets of courts are governed by thesame reviewing authority of the Supreme Court" (id. at 218 [internal quotation marks andcitations omitted]). While mindful of the guidance offered by the federal district court inMental Hygiene Legal Serv. v Cuomo, we are compelled to disagree with the reasoningof the case, for the reasons expressed herein. Concur—Gonzalez, P.J., Sweeny,Moskowitz, Acosta and Manzanet-Daniels, JJ. [Prior Case History: 30 Misc 3d 715.]