         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
