Motion by respondent, brought by order to show cause, seeking vacatur of that portion of an order of this court, dated March 26, 2021, which found probable cause to believe that respondent is a dangerous sex offender requiring confinement, and an order directing respondent’s immediate release from custody. Upon the affirmation of respondent’s counsel in support of the motion, the affirmation of petitioner’s counsel in opposition to the motion and the affirmation of respondent’s counsel in reply to petitioner’s opposition, the court having heard oral argument on the motion on July 14, 2021, and the court having duly deliberated thereupon, decision is hereby rendered as follows: RECITATION OF FACTS On or about May 7, 2002, judgment was rendered in the Fulton County Court (Giardino, J.) upon respondent’s plea of guilty, convicting him of various felony sex offenses that he committed against a child less than 11 years old, and sentencing him to a determinate prison term of 15 years, to be followed by five years of postrelease supervision (PRS). On or about October 29, 2014, respondent was adjudicated to be a detained sex offender requiring civil management and, on or about November 20, 2014, released from custody upon a term of PRS, with strict and intensive supervision and treatment (SIST) pursuant to Mental Hygiene Law §10.11. On or about February 5, 2015, respondent was reincarcerated upon alleged violations of the terms of his PRS and SIST that involved his having had unauthorized contact with a woman and her seven-year-old son. He was thereafter adjudicated to have violated his PRS terms and was assessed a 36-month period of incarceration. On or about February 5, 2018, respondent was rereleased on PRS and SIST. On or about May 17, 2018, respondent was again taken into custody for alleged violations of the terms of his PRS and SIST that involved his soliciting a 15-year-old boy to send respondent a photograph of his penis. He was adjudicated to be in violation of the terms of his PRS and held pending the expiration of his sentence on May 27, 2021. On May 21, 2018, petitioner (hereinafter, the State) advised respondent’s counsel, via a copy of a letter to this court (Kupferman, J.), that respondent was subject to evaluation by the Office of Mental Health (OMH) at “the conclusion of [his] additional term of incarceration” to determine whether he is a dangerous sex offender requiring confinement (DSORC), and, if OMH determined that he was, the State would file a SIST violation petition. On March 5, 2021, with respondent’s release from incarceration becoming imminent, OMH conducted the evaluation and determined that he was a DSORC. Therefore, on March 24, 2021, the State petitioned this court by order to show cause to declare respondent in violation of his SIST conditions, declare him a DSORC pursuant to Mental Hygiene Law §10.11 (d), and confine him as such. On March 26, 2021, this court executed the order to show cause, which included a finding that there was probable cause to believe that respondent is a DSORC, authorizing his confinement pending disposition of the petition. Respondent now moves to vacate that part of the order to show cause that found probable cause to believe that he is a DSORC and for his immediate release from confinement on the ground that the State did not file the petition alleging his violation of the SIST conditions within five days of his reincarceration in May 2018, in accord with Mental Hygiene Law §10.11 (d) (2). DISCUSSION The foregoing facts are not in dispute. The question presented on this motion — whether the State’s waiting to file a SIST violation petition until respondent’s release from incarceration on the PRS violation was near, rather than filing within five days of respondent’s confinement, deprives this court of the authority to find probable cause to believe that he is a DSORC and order him detained pending his SIST violation hearing — is one of statutory construction. A person subject to SIST may be taken into custody for evaluation by a psychiatric examiner upon a parole officer’s allegation that the person has violated the terms of his or her SIST (see Mental Hygiene Law §10.11 [d] [1]). Mental Hygiene Law §10.11 (d) (2) provides that, thereafter, “the attorney general may file…a petition for confinement pursuant to [Mental Hygiene Law §10.11 (d) (4)].” Such provision further states that the State “shall seek to file the petition within five days after the person is taken into custody for evaluation. If no petition is filed within that time, the respondent shall be released immediately” (Mental Hygiene Law §10.11 [d] [2]). However, the “failure to file a petition within such time shall not affect the validity of such petition or any subsequent action” (id.). Mental Hygiene Law §10.11 (d) (4) provides that “[i]f a petition is filed within the fiveday period seeking the respondent’s confinement, then the court shall promptly review the petition and…determine whether there is probable cause to believe that the respondent is a [DSORC].” It is this finding upon which a “respondent may be [detained] pending the conclusion of the proceeding” (Mental Hygiene Law §10.11 [d] [4]). “In the absence of such a finding, the respondent shall be released” (id.). The five-day time limit for the filing of a confinement petition, as well as similar provisions related to conducting a psychiatric evaluation, serving papers on a respondent, the assignment of counsel to a respondent, and conducting a hearing, are meant to protect a respondent’s liberty interest (see Mental Hygiene Law §§10.11 [d]; People v. Arroyo, 27 Misc 3d 192, 193 [Sup Ct, Broome County 2010, Rumsey, J.]). But this interest is neither the only nor the primary concern of Mental Hygiene Law art 10 and, in cases such as this, where a respondent is to serve an extended period of incarceration upon a parole or PRS violation, such interest is not even in play. “‘When presented with a question of statutory interpretation, a court’s primary consideration is to ascertain and give effect to the intention of the Legislature’” (Matter of Walsh v. New York State Comptroller, 34 NY3d 520, 524 [2019], quoting Nadkos, Inc. v. Preferred Contrs. Ins. Co. Risk Retention Group LLC, 34 NY3d 1, 7 [2019] [internal quotation marks omitted]; accord Matter of Lemma v. Nassau County Police Officer Indem. Bd., 31 NY3d 523, 528 [2018]). Respondent focuses on the prefatory language in Mental Hygiene Law §10.11 (d) (4) — “[i]f a petition is filed within the five-day period seeking the respondent’s confinement” — as qualifying the court’s authority to find probable cause to believe that he is a DSORC and, in turn, to order him detained pending disposition of the SIST violation petition, asserting that this language is plain and unambiguous and should therefore be given the effect that he urges. While it is true that the text of a statute is the clearest indicator of legislative intent and should be given its plain meaning, it is also true that all parts of a statute must be construed in harmony with one another and the general intent of the entire enactment, and in consideration of the mischief sought to be remedied, with a view to suppressing the mischief and advancing the remedy (see Matter of Walsh, 34 NY3d at 524; Friedman v. Connecticut Gen. Life Ins. Co., 9 NY3d 105, 115 [2007]; Rothstein v. Tennessee Gas Pipeline Co., 87 NY2d 90, 96 [1995]; People ex rel. Jackson v. Potter, 47 NY 375, 378-379 [1872]; People v. Abelove, 179 AD3d 39, 42 [3d Dept 2019], lv denied 35 NY3d 1025 [2020]; see also McKinney’s Cons Laws of NY , Book 1, Statutes §§92, 95, 98). A construction of a statute that prejudices the public interest or creates other mischievous consequences is to be avoided, as is one that would lead to absurd results (see Matter of Anonymous v. Molik, 32 NY3d 30, 37 [2018]; Pardi v. Barone, 257 AD2d 42, 46 [3d Dept 1999]; Matter of Wilson v. Bd. of Ed., Union Free Sch. Dist. No. 23, Town of Oyster Bay, 39 AD2d 965, 967 [2d Dept 1972], mod 32 NY2d 636; see also McKinney’s Cons Laws of NY, Book 1, Statutes §§145, 148, 152). The legislature recited its purpose as part of its enactment of Mental Hygiene Law art 10 — to remediate the danger to society posed by recidivist sex offenders via a flexible approach designed to protect the public by reducing recidivism, supervising offenders, managing their behavior and ensuring their access to proper treatment (Mental Hygiene Law §10.01 [a]-[d]). The provisions of Mental Hygiene Law §10.01 make clear that the salutary purpose of Mental Hygiene Law art 10 is the protection of the public, to which the legislature subordinates offenders’ liberty interests by imposing SIST and confinement (see Mental Hygiene Law §10.01 [a-d]; 10.08 [h]). It is against this backdrop and in the context of the remainder of the enactment’s provisions that this court must construe the provision at issue. The legislature’s intent to provide procedural flexibility in Mental Hygiene Law art 10 proceedings is both expressly stated and borne out repeatedly in its provisions. Mental Hygiene Law §10.01 (a) plainly lays out the legislature’s purpose to take a flexible approach to addressing the danger that recidivist sex offenders pose to society. The remainder of the enactment is replete with provisions designed to permit courts to reach the substance of a petition notwithstanding the State’s failure to strictly adhere to the procedural time limits prescribed therein (see e.g. Mental Hygiene Law §§10.05 [g]; 10.06 [a], [h]; 10.08 [f]; 10.11 [d] [2], [4]; see also People v. Wiggins, Sup Ct, Bronx County, June 30, 2016, Gross, J., index No., 250981/13, *4-6; Arroyo, 27 Misc 3d at 193-194). Mental Hygiene Law §§10.08 (f) and 10.11 (d) (2) are the provisions most relevant here. Mental Hygiene Law §10.08 (f), which applies to the entire article, states that the ” [t]ime periods specified by [Mental Hygiene Law art 10] for actions by state agencies are goals that the agencies shall try to meet, but failure to act within such periods shall not invalidate later agency action except as explicitly provided by the provision in question.” Mental Hygiene Law §10.11 (d) (2) is specifically applicable to SIST violation petitions and states that “failure to file a petition within [five days of respondent's confinement on an alleged SIST violation] shall not affect the validity of such petition or any subsequent action” (emphasis added). The court therefore finds that the provisions purporting to limit the court’s authority to make a probable cause determination and hold a respondent upon such determination to those cases in which a petition was filed within five days of a respondent’s confinement are rendered ambiguous by their context. The court further finds that the strict construction of such provision that is urged by respondent conflicts with the overarching procedural structure of Mental Hygiene Law art 10 and those provisions that call for flexibility, most especially the broad language of Mental Hygiene Law §10.11 (d) (2). Rather, a harmonious reading of the entire enactment compels the contrary conclusion. In sum, if the failure to timely file a petition does not invalidate “any subsequent action,” then such failure cannot invalidate the court’s probable cause finding or its order thereupon to hold a respondent pending disposition of the petition (see Mental Hygiene Law §10.11 [d] [2], [4]). This construction furthers the remedial legislative goal of protecting the public by appropriately managing the behaviors of dangerous sex offenders, advances the public’s interests in ensuring such protection and sex offenders’ access to meaningful supervision and treatment, and ameliorates the mischief that is patently presented by unleashing upon the public a sex offender who is allegedly out of compliance with conditions of his remaining in the community and whom the court has probable cause to believe is dangerous and in need of confinement. Conversely, the holding here does not materially undermine the liberty interest of a respondent who is subject to an undischarged term of parole or PRS incarceration, insofar as such respondent has no entitlement to immediate release (see People v. Wiggins, Sup Ct, Bronx County, June 30, 2016, Gross, J., index No., 250981/13, *6; Arroyo, 27 Misc 3d at 193-194).1 Nor does it read out the prefatory language in Mental Hygiene Law §10.11 (d) (2) and (4) since, in circumstances where an alleged SIST violation is unaccompanied by an alleged parole or PRS violation, the State’s failure to file a petition within five days of a respondent’s being taken into custody would result in his or her immediate release, obviating the need and purpose of the court’s making a probable cause finding to justify a respondent’s continued detention. The court reads this prefatory language as referring to and protective of the liberty interests of such respondents, that is, those respondent’s whose liberty is actually at stake in a SIST violation proceeding. Finally, the construction urged by respondent presents the danger of absurdity, whereas the court’s construction avoids it. The notion that the State should be required to bring issue before the court, only to have the matter held in abeyance until years later when the controversy raised is ripe for decision is anathema to orderly procedure and contrary to the principals of justiciability. Indeed, there is a substantial question as to whether this court could exercise subject matter jurisdiction over a confinement petition filed against a respondent who is subject to an extended term of incarceration upon a parole or PRS violation, during which his or her mental condition is subject to change — “a principle recognized by article 10′s allowance for annual reviews” (Matter of State of New York v. Calhoun, 106 AD3d 1470, 1472-1473 [4th Dept 2013] [emphasis in original]; see State of New York v. Maurice G., 32 Misc 3d 380, 388-390 [Sup Ct, Bronx County 2011]; but see Matter of State of New York v. Lashway, 100 AD3d 1372, 1373 [4th Dept 2012], lv denied 20 NY3d 861 [2013]). The filing of a petition against such a respondent in strict compliance with the five-day requirement of Mental Hygiene Law §10.11 (d) (2) would present a court with an unripe controversy, as to which it could not afford meaningful relief to either party and which may no longer even be a controversy once the respondent is entitled to release from parole or PRS incarceration (see Calhoun, 106 AD3d at 1472-1473; Maurice G., 32 Misc 3d at 388-390). The court declines to require a meaningless act by the State, or to compromise the safety of the public based upon the State’s failure to perform it. Based upon the foregoing, it is hereby ORDERED, that respondent’s motion is denied. The within constitutes the Decision and Order of this Court. Dated: August 3, 2021
