State v. Nelson D.

Pigott, J.

(dissenting). I disagree with the majority’s view that confinement in an inpatient facility (of which Valley Ridge Center for Intensive Treatment is one) can never be part of a “regimen of strict and intensive supervision and treatment” (SIST) (Mental Hygiene Law § 10.11). Moreover, I believe that the majority’s decision will have the effect that more, rather *244than fewer, article 10 sex offenders will be judged to be “dangerous sex offender[s] requiring confinement” in a designated secure treatment facility (Mental Hygiene Law § 10.07 [f]), even when they might be successfully supervised and treated in the community under SIST. Therefore, I dissent.

Under Mental Hygiene Law § 10.11 (a) (1), a court ordering the release of an individual to a regimen of SIST shall order the Department of Corrections and Community Supervision (DOCCS) to recommend supervision requirements, to “be developed in consultation with” the Office of Mental Health or the Office for People With Developmental Disabilities, that “may include . . . any . . . lawful and necessary conditions that may be imposed by a court.” Moreover, Mental Hygiene Law § 10.11 (a) (1) provides a nonexhaustive list of such requirements, which includes “specification of residence or type [of] residence.” It is clear that the legislature intended to give courts wide latitude in setting conditions of SIST, including specification of the type of residence—or even what particular residence—a sex offender must live in.

The majority holds that involuntary confinement in a government institution cannot be a condition of SIST because such confinement is a “restraint of liberty” (majority op at 242) and, in the majority’s view, Mental Hygiene Law article 10 only restrains a sex offender’s liberty when he or she is determined to be a “dangerous sex offender requiring confinement.” But most, if not all, of the items in the nonexhaustive list of possible SIST conditions restrain a sex offender’s liberty to some degree. A sex offender is not unrestrained if he is being tracked via GPS, electronically monitored every time he accesses a computer, and intensively supervised on a daily basis by his parole officer.

Moreover, the majority does not make clear whether it would be acceptable for a court to, say, place a sex offender, against his will, in a state-owned halfway house with a strictly enforced nighttime curfew. Does that count as being involuntarily confined in a government institution, so that it cannot be ordered as a SIST condition under the majority’s holding? After all, the sex offender in this scenario is subject to involuntary confinement at night. Alternatively, is this an acceptable SIST requirement because the sex offender is free to leave the halfway house during daylight hours?

Because the majority does not answer these questions, the short-term effect of the Court’s holding may be that more article *24510 sex offenders will be relegated to confinement in the designated secure treatment facilities, even if they are not “likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility” (Mental Hygiene Law § 10.03 [e]; see § 10.07 [f]). Courts will fear that placing article 10 sex offenders in a halfway house or group home, with a curfew and a considerable degree of supervision by employees of the residence (as well as by DOCCS), would be in violation of the Court’s holding here.

Under the majority’s ruling, Nelson D. himself must be released from the Broome Developmental Center in Binghamton, where he currently resides (unless the State seeks to keep him there under Mental Hygiene Law article 15 because he suffers from intellectual disability). But many sex offenders who might otherwise be safely housed in community dwellings may instead find themselves confined in the designated secure treatment facilities. It does not make sense to think that the legislature intended this result.

Chief Judge Lippman and Judges Graffeo and Abdus-Salaam concur with Judge RrvERA; Judge Pigott dissents in an opinion in which Judges Read and Smith concur.

Order reversed, without costs, and case remitted to Supreme Court, Bronx County, for further proceedings in accordance with the opinion herein.