SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

314 

CA 11-02578 

PRESENT: CENTRA, J.P., FAHEY, CARNI, SCONIERS, AND MARTOCHE, JJ. 

 

IN THE MATTER OF THE STATE OF NEW YORK, 

PETITIONER-RESPONDENT, 

V MEMORANDUM AND ORDER

NORMAN CALHOUN, RESPONDENT-APPELLANT. 

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

(CRAIG P. SCHLANGER OF COUNSEL), FOR RESPONDENT-APPELLANT. 

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (KATHLEEN M. ARNOLD OF

COUNSEL), FOR PETITIONER-RESPONDENT. 

 

Appeal from an order of the Supreme Court, Jefferson County

(James C. Tormey, J.), entered September 1, 2011 in a proceeding

pursuant to Mental Hygiene Law article 10. The order denied

respondent’s motion to dismiss the petition. 

It is hereby ORDERED that the order so appealed from is

unanimously reversed on the law without costs, the motion is granted

and the petition is dismissed. 

Memorandum: In a proceeding pursuant to Mental Hygiene Law

article 10, respondent appeals from an order denying his motion to

dismiss the petition alleging that he is a dangerous sex offender

requiring civil management. On October 4, 2004, respondent pleaded

guilty in Jefferson County to charges of criminal sexual act in the

first degree (Penal Law § 130.50 [3]) and possessing an obscene sexual

performance by a child (§ 263.11). He was sentenced to a determinate

term of incarceration of five years followed by a period of five years

of postrelease supervision for the criminal sexual act conviction and

to a concurrent indeterminate term of incarceration of 1a to 4 years

for the possessing an obscene sexual performance conviction. 

Respondent was released to postrelease supervision on June 17, 2009,

but on September 23, 2009 he was arrested for and charged with

violating the conditions of his release by, inter alia, possessing

child pornography, and was returned to custody. While awaiting a

hearing on that alleged violation, respondent was charged by federal

authorities with receiving and possessing child pornography, and he

pleaded guilty to those charges on April 26, 2010. He was sentenced

in federal court to a 264-month term of incarceration and was

thereafter returned to state custody. Upon his return, the Division

of Parole revoked his postrelease supervision and imposed a time

assessment of 18 months, resulting in a scheduled release date from
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CA 11-02578 

state custody of March 23, 2011.

On March 21, 2011, in anticipation of respondent’s scheduled

release, petitioner commenced this Mental Hygiene Law article 10

proceeding seeking to have respondent adjudged a sex offender in need

of civil management. Respondent moved to dismiss the petition for,

inter alia, lack of subject matter jurisdiction; specifically,

respondent asserted that Supreme Court does not have subject matter

jurisdiction to hear an article 10 proceeding in 2013 when he will not

be subject to release from federal custody for at least another 19

years. The court denied respondent’s motion, finding that article 10

is implicated whenever an individual is subject to release from state

custody and that it is immaterial whether he or she may immediately be

placed into custody in another jurisdiction. We disagree.

Pursuant to Mental Hygiene Law § 10.05 (b), “[w]hen it appears to

an agency [that is responsible for supervising or releasing a person

(see § 10.03 [a])] that a person who may be a detained sex offender is

nearing an anticipated release from confinement, the agency shall give

notice of that fact to the attorney general and to the commissioner of

mental health.” “Release” is defined as “release, conditional release

or discharge from confinement, from community supervision by the

department of corrections and community supervision, or from an order

of observation, commitment, recommitment or retention” (§ 10.03 [m]). 

Neither article 10 nor its legislative history address whether the

term “release” is limited to a release from state custody or whether

it encompasses a release from custody in all jurisdictions.

It is well settled that a court is without subject matter

jurisdiction “when it lacks the competence to adjudicate a particular

kind of controversy in the first place. As the Court of Appeals has

observed, ‘[t]he question of subject matter jurisdiction is a question

of judicial power: whether the court has the power, conferred by the

Constitution or statute, to entertain the case before it’ ” (Wells

Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 243, quoting Matter

of Fry v Village of Tarrytown, 89 NY2d 714, 718). Moreover, subject

matter jurisdiction requires that the matter before the court is ripe

(see Matter of Agoglia v Benepe, 84 AD3d 1072, 1076). In other words,

courts “may not issue judicial decisions that can have no immediate

effect and may never resolve anything,” and thus “an action may not be

maintained if the issue presented for adjudication involves a future

event beyond control of the parties which may never occur” (Cuomo v

Long Is. Light. Co., 71 NY2d 349, 354 [internal quotation marks

omitted]). It is axiomatic that an article 10 determination issued in

2013 would have no immediate effect on a sex offender who is not to be

released from federal prison until 19 to 22 years later, especially

considering the well-accepted principle that a sex offender, who is at

one point determined to be dangerous, may subsequently be found to no

longer be dangerous—a principle recognized by article 10’s allowance

for annual reviews (see Mental Hygiene Law § 10.09; State of New York

v Maurice G., 32 Misc 3d 380, 389; see generally Matter of State of

New York v Lashaway, 100 AD3d 1372, 1373; People v Arroyo, 27 Misc 3d

192, 194). While a court continues to have subject matter

jurisdiction over a sex offender who has previously been determined to
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CA 11-02578 

be a dangerous sex offender in need of civil management (see Lashaway,

100 AD3d at 1373; Maurice G., 32 Misc 3d at 397; Arroyo, 27 Misc 3d at

193-194), here petitioner is seeking an initial determination

regarding respondent’s status under article 10. Although the

statutory language suggests that a proceeding under article 10 is

appropriate when a prisoner is subject to release from state custody

(see § 10.05 [b]), we do not interpret that language as negating the

overarching principle that where, as here, the issue before the court

is not ripe for review, the court lacks subject matter jurisdiction

(see generally Agoglia, 84 AD3d at 1076). We therefore conclude that

the petition must be dismissed.

Entered: May 3, 2013 Frances E. Cafarell

Clerk of the Court