| Matter of State of New York v Lashaway |
| 2012 NY Slip Op 07442 [100 AD3d 1372] |
| November 9, 2012 |
| Appellate Division, Fourth Department |
| In the Matter of State of New York, Respondent, v StevenLashaway, Also Known as Steven Lashway, Appellant. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Robert M. Goldfarb of counsel), forpetitioner-respondent.
Appeal from an order of the Supreme Court, Oneida County (William D. Walsh, A.J.),entered July 19, 2010 in a proceeding pursuant to Mental Hygiene Law article 10. The orderdetermined that respondent shall remain subject to civil management.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Respondent appeals from an order determining, inter alia, that he remainssubject to civil management pursuant to Mental Hygiene Law article 10 and suspending his rightto annual review of his civil management status under section 10.09. In 2008, respondent wasdetermined to be a dangerous sex offender requiring civil management and was committed to asecure treatment facility. Three months into his civil commitment, respondent violated theconditions of his parole and was returned to the custody of the New York State Department ofCorrectional Services (DOCS). Notwithstanding respondent's incarceration, in 2010 petitionersought an order of continued confinement after annual review pursuant to section 10.09 (h).Respondent moved to dismiss the petition, contending, inter alia, that he was no longer in thecustody of the Commissioner of Mental Health as a result of his incarceration and thus thepetition was moot. Supreme Court denied respondent's motion and concluded that, althoughrespondent should remain subject to civil management, his annual review under section 10.09should be suspended until his release from incarceration.
We reject respondent's contention that the court lacked subject matter jurisdiction. Inasmuchas respondent had been determined to be a "[d]angerous sex offender requiring confinement"(Mental Hygiene Law § 10.03 [e]), the court has subject matter jurisdiction of allsubsequent Mental Hygiene Law article 10 proceedings (§§ 10.06 [a]; 10.09 [c]-[h]).Additionally, contrary to respondent's contention, the petition states a cause of action. We furtherconclude that respondent remained subject to civil management during his incarceration (see generally People v Arroyo, 27 Misc3d 192, 193-194 [2010]). Because of his parole violation, incarceration with DOCSsupplanted respondent's civil commitment in a secure treatment [*2]facility. Nevertheless, that change in circumstances did not affectrespondent's status as a dangerous sex offender requiring civil management. Moreover, weconclude that, because any annual review conducted pursuant to section 10.09 would have noeffect given respondent's current incarceration, the court properly suspended all such proceedingspending respondent's release from incarceration.
Finally, respondent contends that he did not receive meaningful representation on thegrounds that his attorney made errors regarding his DIN number, did not communicateeffectively with him and was abusive toward him. That contention is based on matters outside therecord on appeal, however, and thus is not properly before us (see Matter of State of New York vCampany, 77 AD3d 92, 99-100 [2010], lv denied 15 NY3d 713 [2010]; Matter of Gray v Kirkpatrick, 59 AD3d1092, 1093-1094 [2009]). Present—Fahey, J.P., Peradotto, Carni and Sconiers, JJ.