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Non-Sex-Offense Committed While On Supervised Released for a Sex Offense Was a “Related Offense” Within the Meaning of Article 10 of the Mental Hygiene Law

The Second Department, in a full-fledged opinion by Justice Hall, determined that a sex offender who had been released and was serving a period of post-release supervision at the time he was arrested and re-incarcerated on a credit-card charge, was incarcerated on a “related offense” within the meaning of the Mental Hygiene Law.  Therefore, the state could properly proceed with civil management proceedings pursuant article 10 of the Mental Hygiene Law.  The respondent argued, and Supreme Court had held, that the credit card offense was not related to his sex offense and therefore the state could not start a civil management proceeding based upon his current incarceration:

The respondent’s 2011 conviction of criminal possession of stolen property in the fourth degree clearly does not fall within the first two categories of a “related offense,” i.e., offenses which are prosecuted as part of the same criminal action or proceeding as the sex offense, and offenses which are part of the same criminal transaction as the sex offense (see Mental Hygiene Law § 10.03[l]). However, the crime of criminal possession of stolen property does fall within the third category, which covers offenses “which are the bases of the orders of commitment received by [DOCCS] in connection with an inmate’s current term of incarceration” (Mental Hygiene Law § 10.03(l)). This category covers “inmates” serving their “current term[s] of incarceration” (…  see Mental Hygiene Law § 10.03[l]). The Court of Appeals has recognized that this third category of “[r]elated offenses” is “broadly worded, reflecting the legislature’s apparent decision to give the State more leeway to pursue civil commitment against soon-to-be-released [DOCCS] inmates than parolees” (Matter of State of New York v Rashid, 16 NY3d at 14 n 12).

When the State initiated this civil management proceeding, the respondent was in the custody of DOCCS, and still subject to the sex offense order of commitment, inasmuch as he had not yet completed the postrelease supervision portion of that sentence. In other words, he was incarcerated on a “related offense,” because he was convicted of that offense while still serving his sentence for the underlying sex offense. Matter of State of New York v Claude McC, 2014 NY Slip Op 05885, 2nd Dept 8-20-14

 

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