N.Y. MHY Law § 10.08 — New York Code / Act MHY / Title B / Article 10 / Section 10.08
Procedures under this article
Status: in_force

§ 10.08 Procedures under this article.\n  (a) When a respondent submits to an examination pursuant to an order\nissued in accordance with this article, any statement made by the\nrespondent for the purpose of the examination shall be kept confidential\nin accordance with the provisions of section 33.13 of this chapter and\nshall be inadmissible in evidence against him or her in any criminal\naction or proceeding, provided that such statements may be used in\nproceedings under this article.\n  (b) A psychiatric examiner chosen by the attorney general shall have\nreasonable access to the respondent for the purpose of such examination,\nas well as to the respondent's relevant medical, clinical, criminal or\nother records and reports. A psychiatric examiner chosen by or appointed\non behalf of the respondent shall have reasonable access to the\nrespondent's relevant medical, clinical or criminal records and reports,\nexcept that such psychiatric examiner shall not have access without\ncourt order and for good cause shown to the name of, address of, or any\nother identifying information about the victim or victims. To the extent\npossible, such identifying information should be redacted so as to\nprovide the examiner with access to the balance of the document. In\nconducting examinations under this article, psychiatric examiners may\nemploy any method that is accepted by the medical profession for the\nexamination of persons alleged to be suffering from a mental disability\nor mental abnormality.\n  (c) Notwithstanding any other provision of law, the commissioner, the\ncase review panel and the attorney general shall be entitled to request\nfrom any agency, office, department or other entity of the state, and\nsuch entity shall be authorized to provide upon such request, any and\nall records and reports relating to the respondent's commission or\nalleged commission of a sex offense, the institutional adjustment and\nany treatment received by such respondent, and any medical, clinical or\nother information relevant to a determination of whether the respondent\nis a sex offender requiring civil management. Otherwise confidential\nmaterials obtained for purposes of proceedings pursuant to this article\nshall not be further disseminated or otherwise used except for such\npurposes. Nothing in this article shall be construed to restrict any\nright of a respondent to obtain his or her own records pursuant to other\nprovisions of law.\n  (d) The attorney general shall make records in his or her possession\nand relevant to the respondent available for inspection or copying by\ncounsel for the respondent for purposes of hearing, trial, and appeal\nprovided, however, that counsel shall not have access to the name of,\naddress of, or any other identifying information about the victim or\nvictims, or to any investigative or other reports that relate to matters\nbeyond the scope of the proceedings and are confidential or privileged\nfrom disclosure. To the extent possible, such identifying information\nshould be redacted so as to provide counsel with access to the balance\nof the document.\n  (e) At any hearing or trial pursuant to the provisions of this\narticle, the court may change the venue of the trial to any county for\ngood cause, which may include considerations relating to the convenience\nof the parties or witnesses or the condition of the respondent.\n  (e-1) Records or reports provided to the respondent in accordance with\nthis article shall be disclosed in the circumstances and in the same\nmanner as records and reports disclosed pursuant to the provisions of\nsection 33.16 of this chapter.\n  (f) Time periods specified by provisions of this article for actions\nby state agencies are goals that the agencies shall try to meet, but\nfailure to act within such periods shall not invalidate later agency\naction except as explicitly provided by the provision in question. The\ncourt may extend any time period at the request, or on the consent, of\nthe respondent. No provision of this article shall be interpreted so as\nto prevent a respondent, after opportunity to consult with counsel for\nrespondent, from consenting to the relief which could be sought by an\nagency with jurisdiction by means of a court proceeding under this\narticle.\n  (g) In preparing for or conducting any hearing or trial pursuant to\nthe provisions of this article, and in preparing any petition under the\nprovisions of this article, the respondent shall have the right to have\ncounsel represent him or her, provided that the respondent shall not be\nentitled to appointment of counsel prior to the time provided in section\n10.06 of this article. The attorney general shall represent the state.\nAny relevant written reports of psychiatric examiners shall be\nadmissible, regardless of whether the author of the report is called to\ntestify, so long as they are certified pursuant to subdivision (c) of\nrule forty-five hundred eighteen of the civil practice law and rules, in\nany proceeding or hearing held pursuant to subdivision (g) or (h) of\nsection 10.06 of this article, paragraph two of subdivision (a), or\nparagraph four of subdivision (d), or subdivision (e), (g) or (h) of\nsection 10.11 of this article. In all other proceedings or hearings held\npursuant to this article, such admissibility shall require a showing of\nthe author's unavailability to testify, or other good cause. All plea\nminutes and prior trial testimony from the underlying criminal\nproceeding, and records from previous proceedings under this article,\nshall be admissible. Each witness, whether called by the attorney\ngeneral or the respondent, must, unless he or she would be authorized to\ngive unsworn evidence at a trial, testify under oath, and may be\ncross-examined. The respondent may, as a matter of right, testify in his\nor her own behalf, call and examine other witnesses, and produce other\nevidence in his or her behalf. The respondent may not, however, cause a\nsubpoena to be served on the person against whom the sex offense was\ncommitted or alleged to have been committed by the respondent, except\nupon order of the court for good cause shown. Either party may request\nclosure of the courtroom, or sealing of papers, for good cause shown.\n  (h) The procedures and standards set forth in this article governing\nthe imposition of conditions upon the respondent are intended to be the\nminimum required to provide for the protection of the public and\ntreatment of the respondent. Nothing in this article shall be construed\nto require the availability or imposition of forms of treatment or\nsupervision other than those for which this article specifically\nprovides.\n  (i) * (1) At a proceeding conducted pursuant to subdivision (g) or (h)\nof section 10.06 of this article, a psychiatric examiner called to\ntestify may be permitted, upon good cause shown, to testify by\nelectronic appearance in the court, as that phrase is defined in section\n182.10 of the criminal procedure law. It shall constitute good cause to\npermit such an electronic appearance that such proposed witness is\ncurrently employed by the state at a secure treatment facility or\nanother work location unless there are compelling circumstances\nrequiring the witness' personal presence at the court proceeding.\n  * NB Effective until September 1, 2028\n  * (1) At a proceeding conducted pursuant to subdivision (g) or (h) of\nsection 10.06 of this article, a psychiatric examiner called to testify\nmay be permitted, upon good cause shown, to testify by electronic\nappearance in the court by means of an independent audio-visual system,\nas that phrase is defined in subdivision one of section 182.10 of the\ncriminal procedure law. It shall constitute good cause to permit such an\nelectronic appearance that such proposed witness is currently employed\nby the state at a secure treatment facility or another work location\nunless there are compelling circumstances requiring the witness'\npersonal presence at the court proceeding.\n  * NB Effective September 1, 2028\n  (2) A copy of any clinical record or other document that the party\ncalling such psychiatric examiner intends to present to the witness or\nintroduce during the direct testimony of such psychiatric examiner by\nelectronic appearance shall be provided to opposing counsel and, in a\nmanner consistent with section 33.16 of this chapter, the respondent:\n(i) five days or more before the date such person is called to testify\nby electronic appearance at a proceeding conducted pursuant to\nsubdivision (g) of section 10.06 of this article, and (ii) twenty-four\nhours or more before the date such person is called to testify by\nelectronic appearance at a proceeding conducted pursuant to subdivision\n(h) of such section 10.06.\n  (3) Except as provided in paragraph four of this subdivision, copies\nof clinical records and documents not made available to opposing counsel\nand, where applicable, the respondent as required by paragraph two of\nthis subdivision shall not be permitted to be presented to the witness\non direct examination or introduced in evidence without the consent of\nopposing counsel provided, however, that where good cause is shown why\nsuch clinical record or other document was not provided sufficiently in\nadvance as required by this subdivision, the court shall allow such\nclinical record or other document to be provided by appropriate means,\nincluding but not limited to facsimile or electronic means, and then\nused or considered in the same manner as if timely advance disclosure\nhad been made.\n  (4) The court shall order that copies of clinical records and other\ndocuments relevant for cross-examination, re-direct examination or\nre-cross examination of such witness testifying by electronic means, not\notherwise provided pursuant to this subdivision, be provided to opposing\ncounsel and, in a manner consistent with section 33.16 of this chapter,\nthe respondent, by appropriate means, including but not limited to\nfacsimile or other electronic means.\n  (5) For purposes of this subdivision, an "electronic appearance" means\nan appearance at which a participant is not present in the court, but in\nwhich all of the participants are able to see and hear the simultaneous\nreproductions of the voices and images of the judge, counsel, respondent\nand any other appropriate participant. When a witness makes an\nelectronic appearance pursuant to this subdivision, the court\nstenographer shall record any statements in the same manner as if the\nwitness had made a personal appearance.\n