STATE OF NEW YORK v. LASHWAY, STEVEN ( 2012 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
984
CA 10-02023
PRESENT: FAHEY, J.P., PERADOTTO, CARNI, AND SCONIERS, JJ.
IN THE MATTER OF THE STATE OF NEW YORK,
PETITIONER-RESPONDENT,
V MEMORANDUM AND ORDER
STEVEN LASHAWAY, ALSO KNOWN AS STEVEN LASHWAY,
RESPONDENT-APPELLANT.
D.J. & J.A. CIRANDO, ESQS., SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR
RESPONDENT-APPELLANT.
ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (ROBERT M. GOLDFARB OF
COUNSEL), FOR PETITIONER-RESPONDENT.
Appeal from an order of the Supreme Court, Oneida County (William
D. Walsh, A.J.), entered July 19, 2010 in a proceeding pursuant to
Mental Hygiene Law article 10. The order determined that respondent
shall remain subject to civil management.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: Respondent appeals from an order determining, inter
alia, that he remains subject to civil management pursuant to Mental
Hygiene Law article 10 and suspending his right to annual review of
his civil management status under section 10.09. In 2008, respondent
was determined to be a dangerous sex offender requiring civil
management and was committed to a secure treatment facility. Three
months into his civil commitment, respondent violated the conditions
of his parole and was returned to the custody of the New York State
Department of Correctional Services (DOCS). Notwithstanding
respondent’s incarceration, in 2010 petitioner sought an order of
continued confinement after annual review pursuant to section 10.09
(h). Respondent moved to dismiss the petition, contending, inter
alia, that he was no longer in the custody of the Commissioner of
Mental Health as a result of his incarceration and thus the petition
was moot. Supreme Court denied respondent’s motion and concluded
that, although respondent should remain subject to civil management,
his annual review under section 10.09 should be suspended until his
release from incarceration.
We reject respondent’s contention that the court lacked subject
matter jurisdiction. Inasmuch as respondent had been determined to be
a “[d]angerous sex offender requiring confinement” (Mental Hygiene Law
-2- 984
CA 10-02023
§ 10.03 [e]), the court has subject matter jurisdiction of all
subsequent Mental Hygiene Law article 10 proceedings (§§ 10.06 [a];
10.09 [c] - [h]). Additionally, contrary to respondent’s contention,
the petition states a cause of action. We further conclude that
respondent remained subject to civil management during his
incarceration (see generally People v Arroyo, 27 Misc 3d 192, 193-
194). Because of his parole violation, incarceration with DOCS
supplanted respondent’s civil commitment in a secure treatment
facility. Nevertheless, that change in circumstances did not affect
respondent’s status as a dangerous sex offender requiring civil
management. Moreover, we conclude that, because any annual review
conducted pursuant to section 10.09 would have no effect given
respondent’s current incarceration, the court properly suspended all
such proceedings pending respondent’s release from incarceration.
Finally, respondent contends that he did not receive meaningful
representation on the grounds that his attorney made errors regarding
his DIN number, did not communicate effectively with him and was
abusive toward him. That contention is based on matters outside the
record on appeal, however, and thus is not properly before us (see
Matter of State of New York v Campany, 77 AD3d 92, 99-100, lv denied
15 NY3d 713; Matter of Gray v Kirkpatrick, 59 AD3d 1092, 1093-1094).
Entered: November 9, 2012 Frances E. Cafarell
Clerk of the Court