This is an appeal from an order of the Supreme Court, Chautauqua County entered 8 June 2008 in a proceeding pursuant to Mental Hygiene Law article 10. The order denied respondent’s motion to dismiss the criminal petition.
The issue in this appeal is the constitutionality of Mental Hygiene Law article 10 as applied to persons such as respondent who were convicted of certain designated felonies that were sexually motivated and were committed before the effective date of article 10 (§ 10.03 [f], [g] ).
Since sexual motivation was not an element of the underlying designated felony, article 10 requires that the sexual motivation be established at the civil commitment trial, where the standard of proof is clear and convincing evidence.
It is the respondent’s contention that the application of the clear and convincing standard instead of the reasonable doubt standard to the determination of the issue of sexual motivation violates his constitutional rights to due process of law and equal protection of the laws.
The court rejects those contentions and concludes that Supreme Court properly denied his motion to dismiss the article 10 petition.
Pursuant to Mental Hygiene Law § 10.07, a detained sex offender may be civilly committed if it is determined by clear and convincing evidence after a trial that the offender suffers from a mental abnormality, and the court thereafter concludes that the offender is a dangerous sex offender requiring confinement.
A detained sex crimes offender means a person who is in the care, custody, control, or supervision of an agency with jurisdiction, with respect to a sex offense or designated felony, including individuals who have been convicted of a sex offense as defined in section 10.03 (p), and those convicted of a designated felony that was sexually motivated and committed prior to the effective date of article 10 (§ 10.03 [g] , ).
A sex offense as defined in section 10.03 (p) (1) includes an act or acts that constitute any felony defined in article 130 of the Penal Law and a designated felony includes burglary in the second degree.
A dangerous sex offender requiring confinement’ means a person who is a detained sex offender suffering from a mental abnormality involving such a strong predisposition to commit sex offenses and such an inability to control behavior, that the person is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility.
At the same time that the Legislature enacted article 10, it created a new crime under article 130 of the Penal Law, entitled sexually motivated felony. That legislation also became effective on 13 April 2007, and subdivision (1) of section 130.91 provides that a person commits a sexually motivated felony when he or she commits any of the designated felonies set forth in section 10.03 (f) for the purpose, in whole or substantial part, of his or her own direct sexual gratification. Those individuals who commit any of the designated felonies after the effective date of article 10 will be included in the scope of article 10 only if they were convicted of the newly enacted sexually motivated felony. For those individuals, the element of sexual motivation, as with any element of a criminal offense, will have to be established beyond a reasonable doubt. With respect to those individuals who committed designated felonies before the effective date of article 10, however, the element of sexual motivation will have to be established at the civil commitment trial, where the applicable standard of proof is the lower clear and convincing standard.
To Be cont….
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