State of New York v. Rashid

Graffeo, J. (dissenting).

In 1988, after respondent Mustafa Rashid was released from a Texas prison, he forcibly raped one woman and sodomized another during an armed invasion of a residence in New York. Released on parole in 1999, Rashid subsequently burglarized a woman’s apartment, brandished a weapon, sexually assaulted the woman and her eight-month-old daughter, and then threatened to kill them. Rashid was reincarcerated and prior to the completion of his sentence, the State instituted civil commitment proceedings against him pursuant to article 10 of the Mental Hygiene Law because he was *20considered a sex offender with an alleged mental abnormality that predisposed him to committing sexually violent crimes if released into the community. The State’s evidence showed that Rashid denied having engaged in sexual assaults, refused to complete sex offender treatment while imprisoned, showed “significant traits” of being a psychopath and was at “high risk” of committing additional sex crimes. A mental health expert opined that Rashid’s release from confinement “would be a serious danger to the community” and that nothing less than his commitment to a secure facility would be sufficient to ensure the safety of the public. Based on this proof, it is undisputed that there was probable cause to believe that Rashid was a subject for civil management.

Because the majority concludes that Rashid is not a sex offender within the meaning of article 10 and should be freed into society without restriction, I respectfully dissent.

I

Realizing that certain sexual predators pose a threat to public safety after their sentences expire, the Legislature has adopted extensive statutory procedures for the examination of certain individuals and, where declared to be mentally ill, such persons may be eligible for civil confinement beyond the termination of their supervision by the criminal justice system. The State originally utilized article 9 of the Mental Hygiene Law, which permits involuntary hospitalization of the mentally ill, but this Court held that incarcerated persons were to be processed under Correction Law § 402 because it was specifically directed toward mentally ill persons who were imprisoned (see State of N.Y. ex rel. Harkavy v Consilvio, 7 NY3d 607 [2006] [.Harkavy I]).

Apparently concerned that section 402 was inadequate (see People ex rel. Joseph II. v Superintendent of Southport Correctional Facility, 15 NY3d 126, 132 [2010]), in 2007, the Legislature enacted the Sex Offender Management and Treatment Act as article 10 of the Mental Hygiene Law (L 2007, ch 7). The legislative impetus for the Act was a concern that some recidivistic sex offenders “have mental abnormalities that predispose them to engage in repeated sex offenses” and should be placed in “comprehensive programs of treatment and management” (Mental Hygiene Law § 10.01 [a], [b]). The mental abnormalities that qualify offenders for civil management are those that cause “serious difficulty in controlling” the urge to engage in sexually violent criminal conduct (id. § 10.03 *21[i]; see id. § 10.03 [q]). Article 10 provides that continued confinement beyond the expiration of a criminal sentence is restricted to the most dangerous sex offenders who have “such a strong predisposition to commit sex offenses, and such an inability to control behavior, that the person is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility” (id. § 10.03 [e]). Sex offenders with mental abnormalities that do not rise to that level of dangerousness are treated instead with a program of “strict and intensive supervision” that does not involve confinement in a mental hygiene secure facility (id. § 10.03 [r]). In light of the restrictions on personal freedom that stem from an adjudication that a person is a sex offender requiring civil management, article 10 provides those individuals subject to review with specific procedural and substantive protections (see e.g. id. § 10.06 [b], [c], [e], [g]; § 10.07 [d], [e]; § 10.09).

The provisions of article 10 apply to any person who may be a “detained sex offender.” As relevant to the case now before us, the definition of a “detained sex offender” includes “a person who is in the care, custody, control, or supervision of an agency with jurisdiction”—such as the Department of Correctional Services (DOCS), the Division of Parole or the Office of Mental Health (OMH)—and is “currently serving a sentence for, or subject to supervision by the division of parole” for a sex offense or a related offense {id. § 10.03 [g] [1]). Article 10 review begins when the agency with jurisdiction over a sex offender notifies the Attorney General and OMH that the individual is nearing “release” (id. § 10.05 [b]), i.e., the completion of incarceration, postrelease supervision (PRS) or parole (see id. § 10.03 [m]). OMH then reviews the person’s records to determine whether the sex offender should be referred to a “case review team” for evaluation (id. § 10.05 [d]).

If the individual is referred to the review team, notice of the referral must be provided to the sex offender (see id. § 10.05 [e]) and that individual is then designated a “respondent” for the remainder of the proceedings (see id. § 10.03 [n]). The case review team assesses various records and materials to evaluate whether the respondent is a sex offender who suffers from a “mental abnormality” and is in need of civil management (see id. § 10.05 [e]). If found to require further management, article 10 directs the review team to notify the respondent and the Attorney General (see id. § 10.05 [g]). The Attorney General must then decide whether to file a civil management petition in court against the respondent (see id. § 10.06 [a]).

*22Once a petition is filed, counsel is appointed for the respondent and a court must find probable cause to believe that a sex offender is in need of civil management (see id. § 10.06 [c], [g]). In cases where probable cause exists, the respondent is entitled to have a jury unanimously determine whether the Attorney General has proved by clear and convincing evidence that the respondent is a sex offender with a mental abnormality (see id. § 10.07 [d]). Should the factfinder conclude that the State has met its burden, the court must then make its own determination as to whether the respondent should be confined in a secure facility or permitted to remain in the community under intensive supervision (see id. § 10.07 [f]).

II

Respondent Mustafa Rashid was incarcerated in Texas in the 1980s following his second robbery conviction in that state. He was paroled in May 1988 and moved to New York. In October of that year, Rashid stole money during a knifepoint robbery of a gas station. On November 8th, he invaded a home while armed, stole property, forcibly raped a woman, sodomized another and stabbed a person who attempted to intercede. Rashid subsequently pleaded guilty to rape in the first degree, sodomy in the first degree, two counts of robbery in the first degree and robbery in the second degree. He was sentenced to an aggregate prison term of 8 to 16 years.

Rashid was paroled in July 1999. Less than a year later, he committed three different robberies during a five-day period. According to the indictments, the first robbery occurred when he entered a woman’s home, indicated that he had a gun and threatened to shoot her if she did not give him money. The next day, Rashid approached a woman on an elevator, again pretended to have a gun and said that he would kill her unless she handed over money. After she replied that she had none, he went to the victim’s apartment and told her husband that he had kidnapped her, knew she was pregnant and would kill her if the man did not give him cash.

The third robbery occurred when Rashid burglarized another woman’s residence. He displayed an ice pick and threatened to kill the woman if she did not follow his orders. Rashid took the woman’s eight-month-old daughter out of her arms, touched the baby’s vagina, placed the ice pick to the woman’s neck, fondled her breasts and masturbated until he ejaculated. While continuing to threaten the woman, he said, “If you don’t give me money, *23I will kill you and your baby.” The woman gave Rashid some cash and he left. Rashid was arrested later that day.

As a result of these incidents, DOCS revoked Rashid’s parole based on the 1988 home invasion and sex offenses. For these new crimes, he was indicted for robbery in the first degree, burglary, forcible sexual abuse, weapon possession and related offenses. Rashid subsequently pleaded guilty to two counts of robbery in the third degree and one count of criminal possession of a weapon in the fourth degree. An aggregate sentence of 2 to 4 years was imposed and was to run consecutively to the undischarged portion of the prior 8-to-16-year sentence that Rashid was still serving (see Penal Law § 70.25 [2-a]). Under Penal Law § 70.30 (1) (b), DOCS merged the two sentences into one, resulting in a combined sentence of 10 to 20 years that would not be completed until November 2008.

Rashid was paroled a second time in 2006, but parole supervision was revoked that July after Rashid was arrested for criminal possession of stolen property and larceny. He was given a third opportunity at parole, which he failed by using cocaine and not participating in drug treatment. After being paroled again in February 2008, a few months later Rashid was caught shoplifting and was charged with petit larceny. Since he pleaded guilty to that crime in return for a one-year sentence to be served at Rikers Island, and his sentence for the 1988 sex offenses and 2000 robberies was due to expire in November 2008, DOCS decided not to pursue revocation of his parole.

On September 29, 2008, the Division of Parole began an article 10 civil management review by notifying OMH that Rashid was a detained sex offender who was nearing the end of his sentence. On October 6th, OMH notified Rashid that his case had been referred to a review team to determine whether it would be recommended that he required civil management. Later that month, the case review team informed the Attorney General that it had concluded that Rashid required civil management.

Rashid was released from Rikers Island on October 31, 2008. His parole for the 1988 and 2000 offenses ended on November 4th. The Attorney General filed an article 10 petition in Supreme Court the next day. Because Rashid was at liberty, the court ordered his return to custody pursuant to Mental Hygiene Law § 10.06 (h) pending a hearing to determine whether there was probable cause to believe that Rashid was a sex offender requiring civil management.

*24At the probable cause hearing, a psychologist for the State testified about the evaluation of Rashid. He stated that Rashid had denied the sexual components of his crimes despite his prior guilty pleas and that he suffered from two psychological disorders that caused him to have trouble controlling his tendencies and behavior, and that a particular component of his personality disorder involved the acting out in a “sexually aggressive manner” when he was given the opportunity during the commission of nonsexual crimes. The psychologist also believed that Rashid showed “significant traits” of being a psychopath and that Rashid’s poly-substance abuse contributed to his difficulty maintaining “independent impulse control” over his sexual predispositions while under the influence of narcotics.

The psychologist used an actuarial instrument called the Static-99 to assess Rashid’s likelihood of committing another sex offense. He assigned Rashid a raw score of 7 out of 10, which placed him in “a high risk category for future sexual recidivism” that made him 46 times more likely than the average individual to commit a sex crime in the next five years and 66 times more likely over a 10-year span. The expert also noted that Rashid had never completed a sex offender treatment program. Based on all of these factors, the psychologist concluded that releasing Rashid without any restrictions “would be a serious danger to the community” and that he needed to be “in a secured treatment facility” pending the article 10 trial. Supreme Court found probable cause to believe that Rashid was a sex offender requiring civil management and therefore ordered that he be confined until trial.

In the petition underlying the trial, the State alleged that Rashid was a “detained sex offender” at the time the Mental Hygiene Law § 10.05 (b) notice was issued by the Division of Parole to OMH in September 2008. Although the maximum 16-year sentence for the 1988 sex offenses had been set to expire in 2004, the State maintained that because that sentence ran consecutively to the sentence for the 2000 offenses, and in accordance with People v Buss (11 NY3d 553 [2008]), the total aggregate sentence was 10 to 20 years. Consequently, the State asserted that the sentence for the sex offenses did not expire until November 2008 and, therefore, Rashid remained detained for a sex crime when the article 10 notice was issued regarding civil commitment review. The State alternatively contended that the 2000 offenses were “related offenses” that could serve as a *25predicate for an article 10 petition because they were referenced in the DOCS commitment orders and those sentences related to the earlier sex crimes since the prison terms ran consecutively.

Prior to trial, Rashid moved to dismiss the petition, claiming that the reasoning of Buss did not apply to his case because it dealt with the requirements of the Sex Offender Registration Act (SORA) and, furthermore, his 2000 offenses were not “related offenses” since the commitment orders did not cite the sentence for the 1988 sex crimes. Rashid maintained that the petition was untimely. He asserted that even if Buss applied, he was not a “detained” sex offender when the State instituted the article 10 proceeding since his criminal sentence expired the day before the first petition had been filed.1 As the majority notes, Supreme Court granted Rashid’s motion and dismissed the petition (25 Misc 3d 318 [Sup Ct, NY County 2009]), and the Appellate Division affirmed (68 AD3d 615 [1st Dept 2009]).

Ill

I am dissenting in this case because I agree with the State’s contention that Rashid was a detained sex offender when the article 10 process commenced. The different actors in the article 10 process—the case review team, the Attorney General and the probable cause court—must all decide whether a person is a “sex offender requiring civil management” (Mental Hygiene Law § 10.05 [e]; § 10.06 [a], [k]), a phrase that requires the offender to be “detained” (id. § 10.03 [q]). As relevant to this appeal, a sex offender is defined as detained under the statute if the person “stands convicted of a sex offense” and is “currently serving” a sentence, PRS or parole for that offense or a related offense (id. § 10.03 [g] [1]). The threshold issue, and the basis of my disagreement with the majority and the courts below, is at what operative point must an offender be “currently serving” a sentence for a sex crime to qualify for civil management review.

Textually, the statutory language employs the present tense (see id.). The majority concludes that this requires the Attorney General to allege in an article 10 petition that the sex offender is serving a sentence and remains “detained” at the time the petition is filed. Certainly, the words used by the Legislature in a statutory enactment usually provide the initial basis for *26analyzing its intended scope (see e.g. Matter of M.B., 6 NY3d 437, 447 [2006]). The majority’s interpretation is probably not untenable if the language is viewed in isolation. But there are instances when a strictly textual analysis of an isolated phrase cannot be harmonized with other parts of a comprehensive legislative scheme and would produce results that are so fundamentally inconsistent with the overarching purpose of the statute that it must yield to reasonableness and common sense in order to truly effectuate the Legislature’s intent (see e.g. Long v State of New York, 7 NY3d 269, 273 [2006]; People v Santi, 3 NY3d 234, 242 [2004]).

This is one of those cases. The majority’s holding that a petition must be filed before a sex offender completes a sentence cannot be reconciled with other provisions of the Act’s text, its structure or its underlying legislative purpose. The majority’s analysis will also give rise to a conundrum because a simplistic definitional analysis of “currently serving,” carried to its logical conclusion, will render article 10 inapplicable in many cases that the Legislature intended to reach. Based on my reading of article 10 as a whole, I believe that the crucial juncture for determining whether an offender is “detained” and “currently serving” a sentence for a sex crime occurs at the time the offender is first notified that his case is being reviewed under article 10.1 offer several reasons for this conclusion.

Nothing in the civil management act expressly imposes a strict time limitation on the Attorney General’s ability to file a petition and commence the court proceeding. Rather, the Act establishes advisory time frames for each of the early stages in the article 10 process. The initial notice to OMH and the Attorney General is supposed to occur at least 120 days before a sex offender’s anticipated release (see Mental Hygiene Law § 10.05 [b]). The case review team’s notice of its determination is to be issued within 45 days after OMH was first notified (see id. § 10.05 [g]). If the Attorney General decides that a petition will be filed, it should be done within 30 days after receiving notice of the case review team’s finding (see id. § 10.06 [a]). Each of these statutes emphasize that the failure to meet these time frames “shall not affect the validity of [any] notice or any subsequent action, including the filing of a sex offender civil management petition” by the Attorney General (id. § 10.05 [b] [emphasis added]; see id. § 10.05 [g]; § 10.06 [a]). Under the majority’s rationale, the latter phrase is rendered superfluous and it ignores the catchall provision that emphasizes that the *27“[t]ime periods specified” in article 10 “for actions by state agencies are goals that the agencies shall try to meet, but failure to act within such periods shall not invalidate later agency action except as explicitly provided by the provision in question” (id. § 10.08 [f]).

The majority overlooks three important factors in finding the petition here untimely. The most obvious is that the Legislature expressed an unmistakable intent throughout article 10 not to impose rigid deadlines for taking action, up to and including the filing of the petition. Second, the Attorney General is given 30 days to consider the OMH review team’s finding before deciding whether to file a petition (see id. § 10.06 [a]). The Attorney General’s office received Rashid’s case on October 17, 2008 and made a decision on November 5th—less than 30 days later—yet it is being penalized by the majority for fulfilling its responsibility to properly review a case before deciding to proceed with a petition. Third, even if the petition had been filed more than 30 days after receipt of the referral, article 10 expressly provides that no sanction may be imposed, but that is effectively what the majority has done by dismissing the petition.

There was undoubtedly a practical reason for the Legislature to adopt advisory time guidelines rather than mandatory directives. It recognized that the number of cases and the time necessary to engage in adequate review would vary. For the 12-month period from November 2007 to the end of October 2008, OMH reviewed 1,581 sex offenders for possible civil management2 and from November 2008 to the end of October 2009, the agency reviewed 1,798 cases.3 From the large pool of cases reviewed between the enactment of article 10 through April 2010, OMH referred 383 cases to the Attorney General for civil management consideration.4

*28Although OMH is to make a determination 75 days before the anticipated release date of each offender (see Mental Hygiene Law § 10.05 [b], [g]), it’s not unreasonable to expect that this extensive caseload has made compliance with that time frame difficult. On average, the Attorney General receives a referral from OMH only about 19 days before the respondent’s release date (see 2009 OMH Report at 11; 2008 OMH Report at 7). In this case, consistent with that time frame, the Attorney General had a mere 18 days before Rashid was scheduled to finish his sentence. This not only made it difficult for the Attorney General to meet the goal of filing a petition within 45 days of Rashid’s release (see Mental Hygiene Law § 10.06 [a]), it also increased the likelihood that the Attorney General would need additional time beyond Rashid’s release date to investigate and reach an appropriate decision on whether to file an article 10 petition. Prior to today, the Attorney General had no reason to believe that there was a need to hastily file article 10 petitions to stop the clock from running out before it had an adequate opportunity to conduct thorough reviews of all the facts and circumstances of each offender’s background when making critical determinations to seek civil commitments. After all, article 10 repeatedly advises that its time frames are advisory and that a failure to meet them will have no jurisdictional effect on the outcome of the proceedings.

The Legislature anticipated these difficulties and devised two safety-valve provisions to prevent a person who may be a dangerous sex offender from being immunized from article 10 review as a result of being released into the community. Section 10.06 (f) allows the Attorney General to file a securing petition if it appears that the offender may be released before the case review team can make its determination and where the Attorney General believes that public safety requires continued detention. This procedure was obviously not available to the Attorney General in this case since the OMH review team completed its assessment prior to the completion of Rashid’s sentence.

Second, subdivision (h) of section 10.06 states that if a sex offender “was released” from custody after the initial section 10.05 (b) notice to OMH and “is therefore at liberty when the petition is filed,” a court is required to order the person back into custody upon the filing of the petition for the purpose of a *29probable cause hearing (id. § 10.06 [h] [emphasis added]). This statutory provision expressly contemplates that a petition can be filed after a respondent has completed a sentence (see People ex rel. David NN. v Hogan, 53 AD3d 841, 843 [3d Dept 2008], Iv denied 11 NY3d 708 [2008]; Matter of State of New York v Millard, 19 Misc 3d 283, 287-288 [Sup Ct, Broome County 2008]). Contrary to the majority’s suggestion, “release” is not just limited to the completion of a term of imprisonment—it also encompasses an individual who has completed a term of parole (see Mental Hygiene Law § 10.03 [m] [defining the term to include “discharge from confinement” or “from supervision by the division of parole”]).

That is what happened here. When Rashid completed parole on November 4, 2008, he was released within the meaning of section 10.03 (m) and was therefore “at liberty when the petition [wa]s filed” under section 10.06 (h). Consequently, the Attorney General permissibly sought Rashid’s return to confinement and Supreme Court granted that relief. Although the majority reasons that section 10.06 (h) only applies to individuals who remain on parole when the petition is filed (see majority op at 15), this conflicts with the fact that being “at liberty” can arise from a discharge from parole (see Mental Hygiene Law § 10.06 [h] [“the respondent was released . . . and is therefore at liberty”]) and that a release based on the expiration of a term of parole is treated the same as release from incarceration—in both situations, the Act provides a means for returning the person to State custody. Thus, the majority’s holding that a petition cannot be filed after a sex offender is released (despite receiving notice while serving the sentence) unequivocally contradicts the language of sections 10.03 (m) and 10.06 (h) and disregards the rule that courts should not read legislative enactments in a manner that causes them to become superfluous (see e.g. Matter of Amorosi v South Colonie Ind. Cent. School Dist., 9 NY3d 367, 373 [2007]).

The majority’s belief that “at liberty” refers only to individuals who are on parole when the petition is filed is further at odds with one of the important reasons the Legislature enacted article 10—to reach the most serious sex offenders who are so dangerous that they cannot be conditionally released during the term of their sentences and therefore remain incarcerated for the entire duration of their sentences. Under the majority’s reading of section 10.06 (h), the commencement of an article 10 process while a person is still imprisoned, as opposed to being *30on parole like Rashid was, and the filing of an article 10 petition the day after the completion of the maximum prison sentence would bar the return to custody that is permitted by subdivision (h), regardless of how dangerous the person may be. It is precisely because the criminal justice system can “no longer exert[ ] authority” over such a sex offender (majority op at 14 n 9) that the Legislature authorized the Attorney General to seek relief in the civil courts without the unduly burdensome jurisdictional filing requirement that the majority has imposed.

Aside from the implications of Mental Hygiene Law § 10.06 (h), I believe that the majority’s strict textual application of “detained” and “currently serving” cannot be reconciled with the time frame set forth in article 10 for the civil management trial. The finder of fact cannot render a determination that a sex offender has a mental abnormality requiring civil management unless it also decides that the respondent is still “detained” under a sentence for a sex crime (Mental Hygiene Law § 10.07 [d]; see id. § 10.03 [g] [1]). Similarly, if the factfinder rules in the State’s favor, the court must then assess whether the respondent is a “dangerous sex offender requiring confinement” or a “sex offender requiring strict and intensive supervision” (id. § 10.07 [f]), both of which require current detention for a sex crime (see id. § 10.03 [e], [r]). Yet article 10 contemplates that a trial will generally occur after a sentence has expired: the statute provides that the probable cause hearing be conducted approximately 15 days before an anticipated release date (see id. § 10.06 [g]) and the trial is supposed to commence no more than 60 days later (see id. § 10.07 [a])—i.e., 45 days after the offender’s scheduled release. Even if the trial begins before a respondent’s sentence is completed, it is doubtful that the offender will still be serving the sentence by the time the jury begins deliberations since article 10 litigation “is often protracted” and almost half of all cases take more than a year from the probable cause determination to reach conclusion (2009 OMH Report at 13).

How, then, will it ever be possible for a factfinder or a judge to say that a sex offender with a mental abnormality is “currently serving a sentence for” a sex crime? In reaching its holding in this case, the majority does not appear to have contemplated how its strict textual approach will apply in future article 10 cases that are timely commenced but cannot be completed before the respondent’s underlying sentence expires. Ultimately, the majority’s decision will either create interpretative *31inconsistencies within the Act or result in different meanings of the same statutory language at various stages of the proceedings.

In my opinion, since “detained” and “currently serving” cannot realistically be interpreted as referring to the present tense throughout the statutory process, the rule for determining civil management eligibility should be whether the offender was serving a sentence on the day the case is assigned to an OMH review team because that is when the offender first receives notice that an article 10 civil commitment process has been initiated (see Mental Hygiene Law § 10.05 [e]) and the offender is first denoted as a “respondent” (see id. § 10.03 [n]). I am not alone in this analysis, as other judges contemplating the meaning of article 10 have similarly held (see People ex rel. David NN. v Hogan, 53 AD3d at 843-844 [“The statutes only require the detained person to be in the agency’s custody and nearing release when the initial notice is given, . . . not when the petition is filed .... (A) petition could have been filed even had (the) petitioner been at liberty”]). Thus, an article 10 petition will be untimely only if the sentence expires before notice is issued (see generally Joseph II., 15 NY3d at 134-135). I therefore conclude that the article 10 proceeding in this case was timely commenced against Rashid because he was under parole supervision at the time he was notified that his case was being referred to an OMH review team for possible civil management consideration.

By finding Rashid’s petition to be untimely, the majority necessarily rules that section 10.06 (h) does not mean what it plainly says; it adopts a new jurisdictional timing rule that cannot be found elsewhere in article 10; it disregards the Legislature’s decision to create nonmandatory time periods that do “not affect the validity of the petition” if they are not met (see Mental Hygiene Law § 10.06 [a]); it penalizes the Attorney General for undertaking the obligation to consider a case within 30 days; and it fails to recognize that article 10 court proceedings will generally occur after a criminal sentence is completed. Broad ramifications may flow from this decision—article 10 court proceedings have been commenced against over 300 sex offenders (see 2010 OAG Report at 14) and we have no information about how many of those respondents were serving their sentences when the petitions were filed. Based on the plain language of section 10.06 (h), it was reasonable for the Attorney General to believe—not only in this case but in others as well— that completion of parole by a person who had been living in *32the community would not be an insurmountable impediment to the filing of a petition providing that the notice to the respondent occurred before that person completed the sentence.

For all of these reasons, I would hold that the petition was timely filed because Rashid was under parole supervision when he was informed that his case would be subject to article 10 review procedures.

IV

Because I have concluded that Rashid was “detained” as defined by Mental Hygiene Law § 10.03 (g) (1) when the article 10 process began, it is also necessary for me to consider whether that detention was for a sex offense.

Penal Law § 70.30 is the only New York statute supplying the rules for how to calculate multiple terms of imprisonment. Under subdivision (1) (b), if two indeterminate prison terms run consecutively, the mínimums are added together to produce the new minimum and the máximums are added to produce the new maximum. Because Rashid was serving 8 to 16 years for the 1988 sex offenses when he committed the 2000 robberies and received a new 2-to-4-year sentence, those terms had to run consecutively, even though the sentencing court in the more recent proceeding did not formally make that pronouncement (see Penal Law § 70.25 [2-a]; People ex rel. Gill v Greene, 12 NY3d 1, 6 [2009]). Thus, Rashid’s total sentence was 10 to 20 years, which meant that the sentence (including parole) would not be fully completed until November 2008.

The majority concludes that Penal Law § 70.30 (1) (b) does not apply to the determination of whether a person was serving a sentence for a sex offense for article 10 purposes. It reasons that the statute is irrelevant because article 10 has its own rule for examining whether a sentence for a sex crime is still being served and therefore concludes that Rashid finished his sex offense sentence in 2004, rendering him ineligible under article 10.1 disagree.

Article 10 states that a person must be “currently serving” a sentence for a sex offense (see Mental Hygiene Law § 10.03 [g] [1]), but it does not contain any provision that directs how to make the “currently serving” determination when an offender is subject to multiple terms of imprisonment, as Rashid was. Nor does article 10 preclude a court from considering the otherwise generally applicable provisions of Penal Law article *3370. In the absence of such a restriction, the default calculation rule of Penal Law § 70.30 (1) (b) should govern.

Our decision in People v Buss (11 NY3d 553 [2008])—which dealt with the Sex Offender Registration Act (SORA)—supports this conclusion. In Buss, the defendant had committed a sex offense in 1983 (before SORA was enacted) and was sentenced to 2 to 6 years. While on parole in 1987, he tried to murder a woman and was charged with attempted murder and first-degree rape and sodomy, among other offenses. He pleaded guilty to attempted murder in satisfaction of the indictment and received a consecutive sentence of 10 to 20 years (producing an aggregate of 12 to 26 years). The issue was whether the new sentence had to be added to the earlier one for the purpose of SORA eligibility, meaning the defendant was still serving a sentence for the 1983 sex offense when SORA became effective in 1996.

We held that the calculation rule of Penal Law § 70.30 (1) (b) was applicable and that the defendant was therefore subject to SORA. Our analysis was straightforward: “the Penal Law provides for a method whereby two or more sentences are made into one” and “the result ... is a single, indeterminate sentence” (11 NY3d at 557) whenever a person is subject to more than one term of imprisonment. We observed that one of the primary goals of SORA was “to protect the public from the danger of recidivism posed by sex offenders” and explained that the advancement of this legislative purpose was “best served by recognizing that a person who is returned to prison while on parole for a sex offense continues to be subject to his sex offense sentence for the duration of the aggregate sentence” since “[c]ommon sense and experience dictate that a defendant’s conduct while on parole is a reliable predictor of the risk he poses to society” (id. at 558 [citations and internal quotation marks omitted]). Hence, we held that section 70.30 applies to “the question of whether a prisoner who has been given multiple sentences is subject to all his sentences for the duration of his term of imprisonment” (id. at 557).

Under a comparable analysis, I believe that the reasoning of Buss applies with equal force to article 10 proceedings. Like SORA, article 10 was designed to address public safety concerns (see Mental Hygiene Law § 10.01 [d])—the Legislature declared that “recidivistic sex offenders pose a danger to society” (id. § 10.01 [a]). As in Buss, advancement of this legislative objective is best served by recognizing that sex offenders “continue[ ] *34to be subject to [the] sex offense sentence for the duration of the aggregate sentence” (Buss, 11 NY3d at 558). Nothing in article 10 convinces me that the Legislature intended to create a different and more favorable sentence calculation rule for dangerous sexual predators with mental abnormalities than for other categories of sex offenders who are required to register under SORA. If that was what the Legislature wanted to accomplish, it would have said so in article 10.

Furthermore, contrary to the majority’s conclusion (see majority op at 18-19), the definition of “related offenses” does not prevent the rationale of Buss from pertaining to this situation. To be sure, that phrase expands the application of the civil management act to individuals who are serving time for non-sex offenses (see Mental Hygiene Law § 10.03 [Z]). But incarceration for a “related offense” is irrelevant to assessing whether a person is still serving a sentence for a “sex offense”—a different and independent category that defines eligibility for civil management. The only way to make the latter determination is to refer to Penal Law § 70.30 (1) (b). Tellingly, the majority never says that Rashid was not, in fact, on parole for the 1988 sex offenses when the article 10 process began. Certainly he was. I would therefore hold that Rashid was still serving his sentence for the 1988 sex offenses when the article 10 process began, which qualified him as a “detained sex offender” within the meaning of Mental Hygiene Law § 10.03 (g) (l).5

V

As a final point, we held in Harkavy I that the State could not apply article 9 of the Mental Hygiene Law to sex offenders who were serving a sentence when that process began (see 7 NY3d at 613-614). But we also explained that article 9 could be used in situations where sentences had expired (id. at 614). Thus, although the majority now concludes that article 10 cannot be used against Rashid because his sentence was completed before the petition was filed, nothing prevents the State from seeking to have him involuntarily hospitalized under Mental Hygiene Law article 9 as a mentally ill person who is in need of treatment and is a danger to society (see Mental Hygiene Law § 9.27). If Rashid is as impaired and dangerous as the State has alleged, the ironic result here may be commitment proceedings under *35article 9 in which Rashid will not be entitled to many of the significant procedural and substantive protections that apply in article 10 cases.

Based on my reading of the civil management act and our decision in Buss (11 NY3d 553 [2008]), I would reverse the order of the Appellate Division and allow the article 10 trial to proceed.

. Rashid’s argument was directed at the third article 10 petition. The first petition was dismissed for improper service; the second was dismissed because it was erroneously premised on a misdemeanor offense.

. See New York State Office of Mental Health, 2008 Annual Report on the Implementation of Mental Hygiene Law Article 10, at 8, available at http://www.omh.state.ny.us/omhweb/resources/publications/2008_SOMTA_Report.pdf (accessed Oct. 29, 2010) (hereinafter 2008 OMH Report).

. See New York State Office of Mental Health, 2009 Annual Report on the Implementation of Mental Hygiene Law Article 10, at 8, available at http://www.omh.state.ny.us/omhweb/statistics/SOMTA_Report.pdf (accessed Oct. 29, 2010) (hereinafter 2009 OMH Report).

. See New York State Office of the Attorney General, A Report on the 2007 Law that Established Civil Management for Sex Offenders in New York *28State, at 11 (Apr. 13, 2010), available at http://www.ag.ny.gov/bureaus/ sexual_offender/pdfs/April%202010%20Yearly%20Report.pdf (accessed Oct. 29, 2010) (hereinafter 2010 OAG Report).

. In light of this conclusion, it is unnecessary for me to address whether the 2000 robberies were “related offenses” that would provide an independent basis for an article 10 petition.