Wed Apr 10 Argument #325

CA 23-01341

NUSHAWN W.
    V
STATE OF NEW YORK

Appeal from an memorandum and decision of the Supreme Court, Oneida County (James P. McClusky, J.), dated July 18, 2023 in a proceeding pursuant to Mental Hygiene Law article 10. The memorandum and decision, inter alia, continued the confinement of petitioner to a secure treatment facility. On April 5, 1999, petitioner was sentenced to consecutive terms aggregating to 4 to 12 years for his convictions for rape in the second degree and reckless endangerment in the first degree. In April 9, 2010, while petitioner was incarcerated at Wende, respondent commenced an article 10 proceeding. Upon a finding of probable cause, petitioner was committed to a secure treatment facility pending trial. Supreme Court granted petitioner's motion for a change of venue from Erie County to Chautauqua County, thereafter granting respondent's motion to return venue to Erie County. This Court reversed (92 AD3d 1271; CA11-1429; 32/12; [S] F EC RS M). Supreme Court also denied petitioner's motion to dismiss, and this Court affirmed (92 AD3d 1274; CA11-1430; 38/12; [S] F EC RS M). In a later proceeding, Supreme Court, by order entered March 3, 2014, directed petitioner committed to a secure treatment facility. This Court affirmed (139 AD3d 1375, lv denied 28 NY3d 910, cert denied 137 Sct 2276; CA14-556; 37416; C EC D JC [S]). While the appeal was pending, petitioner unsuccessfully moved to vacate that commitment order pursuant to Matter of State v Donald D.D. (24 NY3d 174). This Court affirmed (139 AD3d 1381; CA15-1378; 377/16; C EC D JC [S]). Supreme Court continued the finding upon petitioner's application for an annual review and this Court affirmed (215 AD3d 1227; 61/23; CA 21-01174; W EMP L M [O]). In 2023, petitioner sought discharge from civil confinement. In a memorandum decision dated July 18, 2023, the court found that petitioner is a dangerous sex offender suffering from a mental abnormality involving such a strong disposition to commit sex offenses and has such an inability to control his behavior, he is likely to be a danger to others and commit sex offenses if not confined in a secure treatment facility. In NYSCEF, petitioner appealed from this memorandum decision. The court subsequently issued an order dated July 19, 2023 for continued confinement after review. Although petitioner included this order in the record he did not appeal from this order in NYSCEF.