| Matter of State of New York v Matter |
| 2013 NY Slip Op 00607 [103 AD3d 1113] |
| February 1, 2013 |
| Appellate Division, Fourth Department |
| In the Matter of State of New York, Respondent, v MichaelMatter, Appellant. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Frank Brady of counsel), forpetitioner-respondent.
Appeal from an order of the Supreme Court, Niagara County (Richard C. Kloch, Sr.,A.J.), entered November 15, 2011 in a proceeding pursuant to Mental Hygiene Lawarticle 10. The order, among other things, determined that respondent is a detained sexoffender requiring civil management.
It is hereby ordered that the order so appealed from is unanimously affirmed withoutcosts.
Memorandum: Respondent appeals from an order determining that he is a detainedsex offender requiring civil management through a regimen of strict and intensivesupervision and treatment (SIST) and placing him with the New York State Departmentof Corrections and Community Supervision (DOCCS).
On June 2, 2008, just prior to respondent's release from the custody of DOCCS,petitioner filed a Mental Hygiene Law article 10 petition seeking respondent's civilmanagement. Petitioner asserted that respondent was a detained sex offender underMental Hygiene Law § 10.03 (g) (1), inasmuch as he was serving a sentence for asex offense defined in section 10.03 (p). Respondent moved to dismiss the petition on theground that he was not a detained sex offender when the petition was filed because hissentence calculation was erroneous. According to respondent, he should have beenreleased from the custody of DOCCS several months before the petition was filed and hethus was not in the lawful custody of DOCCS when the petition was filed. SupremeCourt agreed with respondent and granted both respondent's motion to dismiss thepetition as well as his separate application for a writ of habeas corpus. This Courtreversed the order and judgment, reinstated the petition, and remitted the matter toSupreme Court for further proceedings (Matter of State of New York v Matter, 78 AD3d 1694[2010], rearg denied 81 AD3d 1388 [2011]). We note that, in support of hismotion for reargument, respondent contended that the petition was properly dismissedpursuant to Matter of State ofNew York v Rashid (16 NY3d 1 [2010]), which was decided after we issued ourinitial decision, inasmuch as he was not "lawfully" in custody. In denying reargument, werejected that contention because the pivotal issue was whether he was in fact in thecustody of DOCCS when the article 10 petition was filed (see [*2]People ex rel. Joseph II. v Superintendent of SouthportCorrectional Facility, 15 NY3d 126, 135 [2010], rearg denied 15 NY3d847 [2010]), not whether the custody was "lawful," and it is undisputed that he was incustody. Following our denial of respondent's motion for reargument and upon remittal,the court issued the instant civil management order.
Contrary to respondent's contention, petitioner established by clear and convincingevidence that he is currently a dangerous sex offender requiring SIST (seeMental Hygiene Law § 10.07 [f]). Contrary to respondent's contention, proof ofhis past conduct is probative of his present mental state (see generally Matter ofGeorge L., 85 NY2d 295, 307-308 [1995]). Further, in determining whether a partyis a dangerous sex offender, a court may "rely on all the relevant facts andcircumstances" (Matter of Stateof New York v Motzer, 79 AD3d 1687, 1688 [2010]). Present—Centra,J.P., Peradotto, Sconiers, Valentino and Martoche, JJ.