               SUPREME COURT OF THE STATE OF NEW YORK
                  Appellate Division, Fourth Judicial Department

38
CA 11-01430
PRESENT: SCUDDER, P.J., FAHEY, CARNI, SCONIERS, AND MARTOCHE, JJ.


IN THE MATTER OF THE STATE OF NEW YORK,
PETITIONER-RESPONDENT,

                    V                                     MEMORANDUM AND ORDER

NUSHAWN WILLIAMS, ALSO KNOWN AS
SHYTEEK JOHNSON, RESPONDENT-APPELLANT.
(APPEAL NO. 2.)


DAVISON LAW OFFICE, PLLC, CANANDAIGUA (MARK C. DAVISON OF COUNSEL),
FOR RESPONDENT-APPELLANT.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (MICHAEL J. CONNOLLY OF
COUNSEL), FOR PETITIONER-RESPONDENT.


     Appeal from an order of the Supreme Court, Chautauqua County
(John L. Michalski, A.J.), entered May 6, 2011 in a proceeding
pursuant to Mental Hygiene Law article 10. The order, among other
things, denied the motion of respondent to dismiss the proceeding.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Respondent appeals from an order granting his motion
for, inter alia, leave to reargue his prior motion to dismiss the
petition in this Mental Hygiene Law article 10 proceeding and, upon
reargument, adhering to the original decision denying the motion to
dismiss. Respondent was convicted upon his plea of guilty of reckless
endangerment in the first degree (Penal Law § 120.25) in Supreme
Court, Bronx County, and, eight days later, he was convicted upon his
plea of guilty of two counts of rape in the second degree (former §
130.30) and one count of reckless endangerment in the first degree (§
120.25) in Chautauqua County Court. Respondent was sentenced to
concurrent indeterminate terms of imprisonment of 2 to 6 years on the
rape convictions and an indeterminate term of imprisonment of 2 to 6
years on the reckless endangerment conviction in Chautauqua County, to
run consecutively to the sentences for rape. He was also sentenced to
an indeterminate term of imprisonment of 2 to 6 years on the reckless
endangerment conviction in Bronx County, to run concurrently with all
Chautauqua County sentences. The convictions arose from a series of
acts in which respondent had unprotected sex with multiple female
victims without disclosing that he was HIV-positive.

     Petitioner commenced this proceeding pursuant to Mental Hygiene
Law § 10.06 (a) approximately four days before respondent’s maximum
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                                                         CA 11-01430

release date and while he was still in the custody of the Department
of Correctional Services (DOCS), alleging that respondent was a
detained sex offender requiring civil management (see § 10.03 [g]).
Respondent moved to dismiss the petition on the ground that he did not
qualify as a “detained sex offender” pursuant to article 10. In
support of the motion, respondent contended that the sentence for
reckless endangerment in Chautauqua County ran consecutively to the
sentences for rape and, at the time the proceeding was commenced,
respondent was serving only the sentence for reckless endangerment,
which is not a covered offense pursuant to article 10. Petitioner
opposed the motion, contending that respondent was serving a sentence
for a “related offense” pursuant to section 10.03 (g) (1) when it
commenced the proceeding and that respondent was still in the custody
of DOCS on the sex offenses at that time because the sentences for
rape and reckless endangerment had merged pursuant to Penal Law §
70.30 (1) (b). Supreme Court, Chautauqua County, denied the motion.

     Respondent thereafter moved for reconsideration of the motion to
dismiss on the ground that the court was required to follow the
decision of the First Department in Matter of State of New York v
Rashid (68 AD3d 615, affd 16 NY3d 1). In that case, the Court
concluded that the respondent was not subject to civil management
pursuant to Mental Hygiene Law article 10 because he had served his
sentence for the sex offenses in question and was on parole for a
nonsexual offense at the time the proceeding was commenced (id.).
Before the Court of Appeals rendered its decision in the appeal from
the First Department’s decision in Rashid, Supreme Court adhered to
its decision denying the motion to dismiss on the ground that Rashid
was distinguishable and thus that it was not bound by that decision.

     Following assignment of new counsel and after the Court of
Appeals affirmed the decision of the First Department in Rashid,
respondent moved for, inter alia, leave to reargue the motion to
dismiss. The court implicitly granted reargument and, upon
reargument, adhered to its original decision. The court determined
that respondent was a “ ‘[d]etained sex offender’ ” (Mental Hygiene
Law § 10.03 [g]), inasmuch as he was convicted of sex offenses
pursuant to article 10 and was currently serving a sentence for such
offenses “or for a related offense” (§ 10.03 [g] [1]). We conclude
that the court properly determined that respondent fell within the
third category of related offenses, i.e., those “which are the bases
of the orders of commitment received by [DOCS] in connection with an
inmate’s current term of incarceration” (§ 10.03 [l]). Unlike the
situation in Rashid (68 AD3d 615), here, petitioner was in the custody
of DOCS pursuant to the order of commitment entered in Chautauqua
County at the time the petition was filed.




Entered:   February 17, 2012                    Frances E. Cafarell
                                                Clerk of the Court
