| Matter of State of New York v Williams |
| 2012 NY Slip Op 01295 [92 AD3d 1274] |
| February 17, 2012 |
| Appellate Division, Fourth Department |
| In the Matter of State of New York, Respondent, v NushawnWilliams, Also Known as Shyteek Johnson, Appellant. (Appeal No.2.) |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Michael J. Connolly of counsel), forpetitioner-respondent.
Appeal from an order of the Supreme Court, Chautauqua County (John L. Michalski, A.J.),entered May 6, 2011 in a proceeding pursuant to Mental Hygiene Law article 10. The order,among other things, denied the motion of respondent to dismiss the proceeding.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Respondent appeals from an order granting his motion for, inter alia, leave toreargue his prior motion to dismiss the petition in this Mental Hygiene Law article 10 proceedingand, upon reargument, adhering to the original decision denying the motion to dismiss.Respondent was convicted upon his plea of guilty of reckless endangerment in the first degree(Penal Law § 120.25) in Supreme Court, Bronx County, and, eight days later, he wasconvicted upon his plea of guilty of two counts of rape in the second degree (former §130.30) and one count of reckless endangerment in the first degree (§ 120.25) inChautauqua County Court. Respondent was sentenced to concurrent indeterminate terms ofimprisonment of 2 to 6 years on the rape convictions and an indeterminate term of imprisonmentof 2 to 6 years on the reckless endangerment conviction in Chautauqua County, to runconsecutively to the sentences for rape. He was also sentenced to an indeterminate term ofimprisonment of 2 to 6 years on the reckless endangerment conviction in Bronx County, to runconcurrently with all Chautauqua County sentences. The convictions arose from a series of actsin which respondent had unprotected sex with multiple female victims without disclosing that hewas HIV-positive.
Petitioner commenced this proceeding pursuant to Mental Hygiene Law § 10.06 (a)approximately four days before respondent's maximum release date and while he was still in thecustody of the Department of Correctional Services (DOCS), alleging that respondent was adetained sex offender requiring civil management (see § 10.03 [g]). Respondentmoved to dismiss the petition on the ground that he did not qualify as a "detained sex offender"pursuant to article 10. In support of the motion, respondent contended that the sentence forreckless [*2]endangerment in Chautauqua County ranconsecutively to the sentences for rape and, at the time the proceeding was commenced,respondent was serving only the sentence for reckless endangerment, which is not a coveredoffense pursuant to article 10. Petitioner opposed the motion, contending that respondent wasserving a sentence for a "related offense" pursuant to section 10.03 (g) (1) when it commencedthe proceeding and that respondent was still in the custody of DOCS on the sex offenses at thattime because the sentences for rape and reckless endangerment had merged pursuant to PenalLaw § 70.30 (1) (b). Supreme Court, Chautauqua County, denied the motion.
Respondent thereafter moved for reconsideration of the motion to dismiss on the ground thatthe court was required to follow the decision of the First Department in Matter of State of New York v Rashid(68 AD3d 615 [2009], affd 16 NY3d 1 [2010]). In that case, the Court concludedthat the respondent was not subject to civil management pursuant to Mental Hygiene Law article10 because he had served his sentence for the sex offenses in question and was on parole for anonsexual offense at the time the proceeding was commenced (id.). Before the Court ofAppeals rendered its decision in the appeal from the First Department's decision inRashid, Supreme Court adhered to its decision denying the motion to dismiss on theground that Rashid was distinguishable and thus that it was not bound by that decision.
Following assignment of new counsel and after the Court of Appeals affirmed the decision ofthe First Department in Rashid, respondent moved for, inter alia, leave to reargue themotion to dismiss. The court implicitly granted reargument and, upon reargument, adhered to itsoriginal decision. The court determined that respondent was a " '[d]etained sex offender' "(Mental Hygiene Law § 10.03 [g]), inasmuch as he was convicted of sex offenses pursuantto article 10 and was currently serving a sentence for such offenses "or for a related offense"(§ 10.03 [g] [1]). We conclude that the court properly determined that respondent fellwithin the third category of related offenses, i.e., those "which are the bases of the orders ofcommitment received by [DOCS] in connection with an inmate's current term of incarceration"(§ 10.03 [l]). Unlike the situation in Rashid (68 AD3d 615), here, petitioner was inthe custody of DOCS pursuant to the order of commitment entered in Chautauqua County at thetime the petition was filed. Present—Scudder, P.J., Fahey, Carni, Sconiers and Martoche,JJ.