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Penal law §§110.00 and 130.35… cont

If such a determination is made, then the judge “shall consider whether the respondent is a dangerous sex offender requiring confinement or a sex offender requiring strict and intensive supervision.” Upon such a finding, the respondent “shall be committed to a secure treatment facility until such time as he or she no longer requires confinement. Once committed, the individual shall have a yearly psychiatric exam, and a right to be examined by an independent examiner. In certain circumstances, the detained individual has a right to petition the court for an evidentiary hearing, and detention will continue only if the Attorney General can demonstrate by clear and convincing evidence that the criminal respondent is still a dangerous sex offender requiring confinement. While committed, sex offenders shall be kept in secure treatment facilities.

If the judge does not find that the respondent is a dangerous sex offender requiring confinement, “then the court shall make a finding of disposition that the respondent is a sex offender requiring strict and intensive supervision, and the respondent shall be subject to a regimen of strict and intensive supervision and treatment.” In making such a finding, the court shall consider “the conditions that would be imposed upon the respondent if subject to a regimen of strict and intensive supervision, and all available information about the prospects for the respondent’s possible reentry into the community.” An individual may petition every two years for modification or termination of the strict and intensive supervision. Upon receipt of a petition for termination, the court may, in its discretion, hold a hearing where the Attorney General must show by clear and convincing evidence that the individual is still a sex offender in need of civil management.

At the time of the filing of the petition herein, Respondent was serving a sentence upon conviction by plea to one (1) count of attempted rape in the first degree, in violation of penal law §§110.00 and 130.35. On June 17, 1999, Respondent was sentenced to a total period of nine (9) years’ incarceration and five (5) years post-release supervision. On November 10, 2007, Respondent was scheduled to be released from incarceration at Fishkill Correctional Facility located in Dutchess County.

Thereafter, through a series of motions to change venue, the matter was transferred to this court, Respondent waived a probable cause hearing, and a jury trial was conducted in Erie County during the week of March 2, 2009. The jury, by a unanimous verdict, determined that Respondent is a sex crimes offender who suffers from a mental abnormality. A hearing on the dispositional phase of these proceedings was conducted on April 23, 2009.

Pared to its core, Respondent’s due process challenges to Article 10 relate to the right to confront evidence and cross-examine adverse witnesses, to be heard in a timely fashion, and the right to privacy and confidentiality (with regard to his medical records). Respondent further challenges the standard of proof applicable to the required finding of mental abnormality. Most notably, Respondent seeks to add an additional requirement to MHL §10.07 to require a standard of proof beyond a reasonable doubt as to whether he is a detained sex offender who suffers from a mental abnormality. The thrust of the balance Respondent’s due process arguments is that Article 10 establishes a mechanism for “punishment” based upon past conduct for which he has already been convicted, and forced to serve a prison sentence. This Court is unpersuaded by these arguments.

Respondent asks this Court to second guess the Legislature with respect to the enactment of Article 10 as it applies to this case, and to ignore the fact that the Legislature is presumed to have considered these, and related issues. Moreover, to challenge a Legislative act successfully, a plaintiff must establish that no set of circumstances exists that would render the law valid. Admittedly, a high burden. Here, New York’s objective to create a civil proceeding is evidenced by its designation of the statute as a “civil management” process and the proclamation that “confinement of the most dangerous offenders will need to be extended by civil process.” Moreover, the Legislative findings consistently refer to “civil confinement.” Nothing on the face of the statute suggests that the Legislature sought to create anything other than a civil management scheme designed to provide treatment for the affected individuals, while protecting the public from harm, and the Legislature conferred authority on relevant administrative agencies, rather than the state’s penal system; prima facie evidence of an intention to create a civil legislative scheme. The Supreme Court has made it clear that a legislature’s declaration of the civil nature of confinement may be overcome only where there is “the clearest proof” that the statute is as punitive either in purpose or effect as to negate [the State’s] intention” to deem it civil. In addition, the statutory mechanism set forth (in part) above provides strict procedural safeguards at each stage of the proceedings. Thus, Respondent has failed to meet this high burden. Drug possession was not involved.

Based on the foregoing, it is hereby ordered that Respondent’s motion to dismiss is, in all respects, denied. This constitutes the Decision and Order of this Court. Submission of an order by the Parties is not necessary. The mailing of a copy of this Decision and Order by this Court shall not constitute notice of entry.

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