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Case Name New York v. Consilvio CJ-NY-0002
Docket / Court 404172/05 ( State Court )
State/Territory New York
Case Type(s) Criminal Justice (Other)
Case Summary
The Mental Hygiene Legal Service (MHLS) filed a lawsuit on behalf of 22 John Does under New York Civil Practice Law and Rules § 70, a state habeas corpus statute, against the Kirby Forensic Psychiatric Facility in the New York County Supreme Court. The plaintiffs were represented by the MHLS and ... read more >
The Mental Hygiene Legal Service (MHLS) filed a lawsuit on behalf of 22 John Does under New York Civil Practice Law and Rules § 70, a state habeas corpus statute, against the Kirby Forensic Psychiatric Facility in the New York County Supreme Court. The plaintiffs were represented by the MHLS and asked for conditional release, claiming that they had been civilly committed in contravention of state law and the United States Constitution. Specifically, the plaintiffs claimed that they were not afforded notice or a hearing prior to civil commitment to an inpatient psychiatric facility immediately following their convictions, as required by Corrections Law § 404, and the Due Process Clause of the U.S. Constitution.

Between September 23 and November 22, 2005, the State of New York Department of Correctional Services began civilly committing sex offenders whose sentences were almost expired, without a hearing or notice, to the Kirby Forensic Psychiatric Facility. The timing of the transfer was carefully coordinated so that the actual committal occurred after the prisoner's had been 'released,' but before the prisoners had a chance to be released from custody. Corrections Law § 404 required a committal to a psychiatric facility to be accompanied by a predetermination hearing and notice to the prisoners if they were still serving their sentences. 22 people were committed under this scheme. Thereafter, Mental Hygiene Legal Services, a division of the state created by law, filed two habeas corpus actions the New York County Supreme Court, seeking relief for 22 prisoners who had been committed to secured and unsecured facilities.

On November 15, 2005, the Court (Judge Jacqueline Silbermann) ordered the release of the first 12 plaintiffs, and ordered the defendant to initiate immediate civil commitment proceedings or relinquish custody of the first 12 plaintiffs (809 N.Y.S.2d 836).

On February 6, 2006, the trial Court granted the habeas corpus petitions of the second 11 plaintiffs, finding that the prisoners were entitled to the protections of Corrections Law § 404 and due process (814 N.Y.S.2d 892). The Court ordered the Kirby facility to produce the patients for hearings, or in the alternative, to release them.

On March 30, 2006, the Appellate Division, First Department (Judge Malone) reversed the Supreme Court's order in the first case, finding that the controlling law was not appropriate (812 N.Y.S.2d 496). On July 27, 2006, the Appellate Division also reversed the Supreme Court's finding the in the second case (819 N.Y.S.2d 499).

On March 14, 2007, The New York Legislature intervened and passed Mental Hygiene Law § 10 Sex Offender Management and Treatment Act (SOMTA). The act established a system of civil management to civilly confine and/or closely supervise sex offenders who are about to be released from prison and also improved the treatment available to incarcerated sex offenders. The act also created the Office of Sex Offender Management within the Division of Criminal Justice Services.

On June 5, 2007, the Court of Appeals (Judge Graffeo) reversed the Appellate Division's rulings and found the new § 10 controlling and retroactive to the plaintiffs' case (870 N.E.2d 128). The Court of Appeals then ordered the case remanded to the New York County Supreme Court for § 10 proceedings.

As a result of the June 5, 2007 ruling, 123 individuals, including the plaintiffs, were re-evaluated by the Office of Mental Health under the new procedures. Of these, 60 met the criteria for civil management under § 10 and were referred to the Attorney General's office for possible litigation. The last of these cases was referred in December 2007.

Blase Kearney - 05/15/2012
Anna Jones - 03/14/2016

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Issues and Causes of Action
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Constitutional Clause
Due Process
Sex offender regulation
Plaintiff Type
State Plaintiff
Causes of Action State law
42 U.S.C. § 1983
Defendant(s) State of New York
Plaintiff Description The state of New York on behalf of the Deputy Director of the Mental Hygiene Legal Service who seeks the release of former inmates who were civilly committed after release from prison.
Class action status sought No
Class action status granted No
Filed Pro Se No
Prevailing Party Plaintiff
Public Int. Lawyer Yes
Nature of Relief Injunction / Injunctive-like Settlement
New legislation
Source of Relief Litigation
Filing Year 2005
Case Closing Year 2007
Case Ongoing No
Additional Resources
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  Sex Offender Management and Treatment Act: The First Year
Date: April 2008
By: New York State Division of Criminal Justice Services
[ Detail ] [ PDF ] [ External Link ]

No docket sheet currently in the collection
General Documents
Opinion (2005 N.Y.Misc.LEXIS 3080)
CJ-NY-0002-0010.pdf | LEXIS | Detail
Date: 02/08/2005
Source: LexisNexis
Opinion (10 Misc.3d 851)
CJ-NY-0002-0005.pdf | WESTLAW| LEXIS | Detail
Date: 11/15/2005
Source: Westlaw
Opinion (11 Misc.3d 1053)
CJ-NY-0002-0007.pdf | WESTLAW| LEXIS | Detail
Date: 02/08/2006
Source: Westlaw
Opinion (2006 N.Y.App.Div.LEXIS 3925)
CJ-NY-0002-0008.pdf | LEXIS | Detail
Date: 03/28/2006
Source: LexisNexis
Opinion (812 N.Y.S.2d 496)
CJ-NY-0002-0006.pdf | WESTLAW| LEXIS | Detail
Date: 03/30/2006
Source: Westlaw
Opinion (853 N.E.2d 1110)
CJ-NY-0002-0004.pdf | WESTLAW| LEXIS | Detail
Date: 07/06/2006
Opinion (819 N.Y.S.2d 499)
CJ-NY-0002-0009.pdf | WESTLAW| LEXIS | Detail
Date: 07/27/2006
Source: Westlaw
Appellate Opinion (859 N.E.2d 508)
CJ-NY-0002-0001.pdf | WESTLAW| LEXIS | Detail
Date: 11/21/2006
Opinion (870 N.E.2d 128)
CJ-NY-0002-0003.pdf | WESTLAW| LEXIS | Detail
Date: 06/05/2007
Source: Google Scholar
Judges Catterson, James M. Jr. Court not on record
CJ-NY-0002-0006 | CJ-NY-0002-0008 | CJ-NY-0002-0009
Ciparick, Carmen Beauchamp (State Appellate Court)
CJ-NY-0002-0001 | CJ-NY-0002-0003
Friedman, David (State Appellate Court)
CJ-NY-0002-0006 | CJ-NY-0002-0008 | CJ-NY-0002-0009
Graffeo, Victoria A. (State Appellate Court)
Jones, Hugh R. (State Appellate Court)
Kaye, Judith (State Appellate Court)
Malone, Bernard J. (State Appellate Court)
CJ-NY-0002-0006 | CJ-NY-0002-0008 | CJ-NY-0002-0009
Pigott, Eugene F. Jr. (State Appellate Court)
Read, Susan P. (State Appellate Court)
Silbermann, Jacqueline W. (State Supreme Court)
CJ-NY-0002-0005 | CJ-NY-0002-0007 | CJ-NY-0002-0010
Smith, George Bundy (State Appellate Court, State Supreme Court, State Trial Court)
Sullivan, Joseph P. (State Supreme Court)
CJ-NY-0002-0006 | CJ-NY-0002-0008 | CJ-NY-0002-0009
Tom, Peter (State Supreme Court)
CJ-NY-0002-0006 | CJ-NY-0002-0008 | CJ-NY-0002-0009

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