| People ex rel. McCurdy v Warden, Westchester County Corr.Facility |
| 2018 NY Slip Op 05777 [164 AD3d 692] |
| August 15, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York ex rel. Chance McCurdy,Respondent, v Warden, Westchester County Correctional Facility, Respondent, and NewYork State Department of Corrections and Community Supervision,Appellant. |
Barbara D. Underwood, Attorney General, New York, NY (Anisha S. Dasgupta, Holly A.Thomas, Karen W. Lin, and Ester Murdukhayeva of counsel), for respondent-appellant.
The Legal Aid Society, New York, NY (Elon Harpaz of counsel), forpetitioner-respondent.
In a habeas corpus proceeding, which was converted into a proceeding pursuant to CPLRarticle 78 to review a determination of the New York State Department of Corrections andCommunity Supervision, which placed the petitioner, a level three sex offender, in a residentialtreatment facility during the period of his postrelease supervision, the New York StateDepartment of Corrections and Community Supervision appeals from a judgment of the SupremeCourt, Westchester County (Barbara Gunther Zambelli, J.), dated January 11, 2016. Thejudgment granted the petition to the extent of directing the New York State Department ofCorrections and Community Supervision to arrange for the petitioner's transfer to theQueensboro Correctional Facility and to assign him to a wait list for a New York CityDepartment of Homeless Services facility that is compliant with the requirements of the SexualAssault Reform Act.
Ordered that the judgment is reversed, on the law, without costs or disbursements, thepetition is denied, and the proceeding is dismissed on the merits.
In 2014, the petitioner was convicted of attempted sexual abuse in the first degree and wassentenced to three years in prison, followed by five years of postrelease supervision. By the timethe petitioner was received into state custody, he had already accrued sufficient time in a localjail to satisfy the full determinate term of his three-year sentence. He was subsequentlyadjudicated a level three sex offender pursuant to the Sex Offender Registration Act (hereinafterSORA) (see Correction Law art 6-C). While residing in the community, the petitionerviolated his curfew, and his postrelease supervision status was revoked. As an alternative toincarceration, the Department of Corrections and Community Supervision (hereinafter DOCCS)agreed to re-release the petitioner to postrelease supervision upon his successful completion of a90-day DOCCS drug treatment program. However, upon the petitioner's completion of theprogram, he failed to identify any housing that complied with the requirement of the SexualAssault Reform Act (hereinafter SARA) that level three sex offenders reside more than 1,000feet from any school grounds (see Executive Law § 259-c [14]; Penal Law§ 220.00 [14] [b]; People vDiack, 24 NY3d 674, 681-[*2]682 [2015]; People ex rel. Green v Superintendent ofSullivan Corr. Facility, 137 AD3d 56, 58 [2016]; Matter of Williams v Department of Corr. & CommunitySupervision, 136 AD3d 147, 151 [2016]). As a result, DOCCS placed the petitioner in aDOCCS residential treatment facility at the Fishkill Correctional Facility and thereafter at anresidential treatment facility at the Queensboro Correctional Facility.
In October 2015, while residing at the Queensboro Correctional Facility, the petitioner wasarrested on a parole warrant for violating the terms of his postrelease supervision by abscondingfrom a community work program and was thereafter incarcerated in the Westchester CountyCorrectional Facility. In November 2015, the petitioner commenced a habeas corpus proceedingchallenging his incarceration at the Westchester County Correctional Facility pending a finalparole revocation hearing. The petitioner contended that his violation of his postreleasesupervision while residing at the Queensboro Correctional Facility was a nullity because DOCCSlacked authority under SARA, Correction Law § 73 (10), or Penal Law§ 70.45 (3) to place him in a residential treatment facility upon his completion ofthe DOCCS drug treatment program. The Supreme Court, based upon its determination that thepetitioner was not entitled to immediate release given the petitioner's lack of community-basedSARA-compliant housing, converted the writ to a proceeding pursuant to CPLR article 78, andgranted the petition to the extent of directing DOCCS to arrange for the petitioner's transfer to theQueensboro Correctional Facility and to assign him to a wait list for a New York CityDepartment of Homeless Services facility that is compliant with the requirements of SARA.DOCCS appeals, and we reverse.
To resolve the issues raised in this case, we turn to "familiar principles of statutoryconstruction" (Matter of County ofOrange [Al Turi Landfill, Inc.], 75 AD3d 224, 234 [2010]). " 'Statutes whichrelate to the same subject matter must be construed together unless a contrary legislative intent isexpressed' " (Matter of County of Orange [A1 Turi Landfill, Inc.], 75 AD3d at234, quoting Matter of Dutchess County Dept. of Social Servs. v Day, 96 NY2d 149, 153[2001]). "The courts must 'harmonize the various provisions of related statutes and. . . construe them in a way that renders them internally compatible' "(Matter of County of Orange [A1 Turi Landfill, Inc.], 75 AD3d at 234, quoting Matterof Aaron J., 80 NY2d 402, 407 [1992]). "In the case of a conflict between a general statuteand a special statute governing the same subject matter, the general statute must yield"(Matter of County of Orange [A1 Turi Landfill, Inc.], 75 AD3d at 234; see Matter ofBrusco v Braun, 84 NY2d 674, 681 [1994]). "Finally, '[a] construction rendering statutorylanguage superfluous is to be avoided' " (Matter of County of Orange [A1 TuriLandfill, Inc.], 75 AD3d at 234, quoting Matter of Branford House v Michetti, 81NY2d 681, 688 [1993]).
Applying these principles here, no conflict arises between the three statutes at issue regardingDOCCS's authority to place the petitioner, a level three sex offender, into a residential treatmentfacility housing pending his identification of SARA-compliant community housing during theperiod of his postrelease supervision. By its terms, Penal Law § 70.45 (3) permitsDOCCS to require an offender subject to a term of postrelease supervision to spend the first sixmonths of his or her postrelease supervision in residential treatment facility housing as atransitional period prior to re-entry into the community.
The six-month limitation on residential treatment facility housing imposed by Penal Law§ 70.45 (3) does not conflict with, or limit, the application of DOCCS's authorityunder Correction Law § 73 (10) "to use any residential treatment facility as aresidence for persons who are on community supervision." The term "community supervision" isdefined as "the supervision of individuals released into the community on temporary release,presumptive release, parole, conditional release, post release supervision or medical parole"(Correction Law § 2 [31]).
Thus, construing the relevant statutes together, DOCCS has authority to temporarily place alevel three sex offender who has already completed more than six months of his or herpostrelease supervision, as did the petitioner in this case, into residential treatment facilityhousing in the event such offender is unable to locate SARA-compliant community housing.Moreover, it is clear that DOCCS's authority to keep such an offender in residential treatmentfacility housing ends when the offender successfully identifies or otherwise obtainsSARA-compliant community housing. Mastro, J.P., Roman, Barros and Iannacci, JJ.,concur.