SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1228 

CA 11-02568 

PRESENT: CENTRA, J.P., PERADOTTO, SCONIERS, VALENTINO, AND MARTOCHE, JJ. 

 

 

IN THE MATTER OF THE STATE OF NEW YORK, 

PETITIONER-RESPONDENT, 

V MEMORANDUM AND ORDER

MICHAEL MATTER, RESPONDENT-APPELLANT. 

 

EMMETT J. CREAHAN, DIRECTOR, MENTAL HYGIENE LEGAL SERVICE, BUFFALO

(MARGOT S. BENNETT OF COUNSEL), FOR RESPONDENT-APPELLANT. 

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (FRANK BRADY OF COUNSEL),

FOR PETITIONER-RESPONDENT. 

 

Appeal from an order of the Supreme Court, Niagara County (Richard

C. Kloch, Sr., A.J.), entered November 15, 2011 in a proceeding pursuant

to Mental Hygiene Law article 10. The order, among other things, 

determined that respondent is a detained sex offender requiring civil

management. 

It is hereby ORDERED that the order so appealed from is unanimously

affirmed without costs.

Memorandum: Respondent appeals from an order determining that he

is a detained sex offender requiring civil management through a regimen

of strict and intensive supervision and treatment (SIST) and placing him

with the New York State Department of Corrections and Community

Supervision (DOCCS). 

On June 2, 2008, just prior to respondent’s release from the

custody of DOCCS, petitioner filed a Mental Hygiene Law article 10

petition seeking respondent’s civil management. Petitioner asserted

that respondent was a detained sex offender under Mental Hygiene Law §

10.03 (g) (1), inasmuch as he was serving a sentence for a sex offense

defined in section 10.03 (p). Respondent moved to dismiss the petition

on the ground that he was not a detained sex offender when the petition

was filed because his sentence calculation was erroneous. According to

respondent, he should have been released from the custody of DOCCS

several months before the petition was filed and he thus was not in the

lawful custody of DOCCS when the petition was filed. Supreme Court

agreed with respondent and granted both respondent’s motion to dismiss

the petition as well as his separate application for a writ of habeas

corpus. This Court reversed the order and judgment, reinstated the

petition, and remitted the matter to Supreme Court for further

proceedings (Matter of State of New York v Matter, 78 AD3d 1694, rearg
-2- 1228 

CA 11-02568 

denied 81 AD3d 1388). We note that, in support of his motion for

reargument, respondent contended that the petition was properly

dismissed pursuant to Matter of State of New York v Rashid (16 NY3d 1),

which was decided after we issued our initial decision, inasmuch as he

was not “lawfully” in custody. In denying reargument, we rejected that

contention because the pivotal issue was whether he was in fact in the

custody of DOCCS when the article 10 petition was filed (see People ex

rel. Joseph II. v Superintendent of Southport Correctional Facility, 15

NY3d 126, 135, rearg denied 15 NY3d 847), not whether the custody was

“lawful,” and it is undisputed that he was in custody. Following our

denial of respondent’s motion for reargument and upon remittal, the

court issued the instant civil management order.

Contrary to respondent’s contention, petitioner established by

clear and convincing evidence that he is currently a dangerous sex

offender requiring SIST (see Mental Hygiene Law § 10.07 [f]). Contrary

to respondent’s contention, proof of his past conduct is probative of

his present mental state (see generally Matter of George L., 85 NY2d

295, 307-308). Further, in determining whether a party is a dangerous

sex offender, a court may “rely on all the relevant facts and

circumstances” (Matter of State of New York v Motzer, 79 AD3d 1687,

1688). 

Entered: February 1, 2013 Frances E. Cafarell

Clerk of the Court