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SEX OFFENDER CAN NOT BE KEPT IN PRISON AFTER SERVING HIS MAXIMUM SENTENCE ON THE GROUND SUITABLE HOUSING HAD NOT YET BEEN FOUND.

The Third Department, in a full-fledged opinion by Justice Lynch, determined a sex offender could not be kept in prison after he had served his maximum sentence on the ground that suitable housing had not yet been found:

 

There is no dispute here that, due to petitioner’s status as a risk level III sex offender, his release was subject to the mandatory condition that he have suitable housing located more than 1,000 feet from school grounds (see Executive Law § 259-c [14]…). Further, petitioner concedes that the Board of Parole (hereinafter the Board) was authorized to order, on January 15, 2015, that he be transferred to an RTF [residential treatment facility] (see Penal Law § 70.45 [3]; Correction Law § 73 [10]). In response to the petition, respondents explain that petitioner was assigned, but never actually transferred, to Woodbourne Correctional Facility, an RTF, due to an unspecified mental health condition … . Accordingly, there is no dispute that petitioner remained confined in a maximum security correctional facility for more than eight months past the expiration of his three-year determinate sentence. Respondents provide no convincing authority for this unilateral decision, nor do we discern any.

We have previously held that the Board has discretion to deny parole release to an inmate who has not secured an approved residence on his or her conditional release date … . In contrast, we recently held that DOCCS does not have the authority to retain an inmate beyond the inmate’s maximum expiration date in order to finalize the terms of PRS [postrelease supervision], because it was conclusively bound by the sentence and commitment order … . … [W]e find that when a risk level III sex offender reaches his or her maximum expiration date, DOCCS must release the individual to either an approved residence or to an RTF. Where an individual needs mental health treatment not otherwise available at an RTF, DOCCS must, prior to the release date, seek a court order authorizing continued hospitalization pursuant to Mental Hygiene Law article 9 or admission to a secure detention facility pursuant to Mental Hygiene Law article 10 (see Correction Law § 404). People ex rel. Green v Superintendent of Sullivan Corr. Facility, 2016 NY Slip Op 00417, 3rd Dept 1-21-16

 

CRIMINAL LAW (SEX OFFENDER CAN NOT BE KEPT IN PRISON AFTER SERVING MAXIMUM SENTENCE ON GROUND SUITABLE HOUSING HAS NOT YET BEEN FOUND)/SEX OFFENDERS (SEX OFFENDER CAN NOT BE KEPT IN PRISON AFTER SERVING MAXIMUM SENTENCE ON GROUND SUITABLE HOUSING HAS NOT YET BEEN FOUND)/MENTAL HYGIENE LAW (SEX OFFENDER CAN NOT BE KEPT IN PRISON AFTER SERVING MAXIMUM SENTENCE ON GROUND SUITABLE HOUSING HAS NOT YET BEEN FOUND)

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