NY Ment Hygiene L § 10.07 (2021)
2021 New York Laws MHY - Mental Hygiene Title B - Mental Health Act Article 10 - Sex Offenders Requiring Civil Commitment or Supervision 10.07 - Trial.

§ 10.07 Trial.  (a)  Within  sixty  days  after  the  court  determines,  pursuant  to subdivision (k) of section 10.06 of this article, that there is probable cause to believe that the respondent is a sex offender  requiring  civil management,  the  court  shall conduct a jury trial to determine whether the respondent is a detained sex offender  who  suffers  from  a  mental abnormality.  The  trial  shall  be  held  before  the  same  court that conducted the probable cause hearing unless either the attorney  general or  counsel  for  the respondent has moved for a change of venue and the motion has been granted by the court.  (b) The provisions of article forty-one of the civil practice law  and rules  shall apply to the formation and conduct of jury trial under this section, except that the provisions of the  following  sections  of  the criminal procedure law shall govern to the extent that the provisions of article  forty-one  of the civil practice law and rules are inconsistent therewith: sections 270.05, 270.10, 270.15, 270.20, subdivision  one  of section  270.25,  and  subdivision one of section 270.35 (except for the provisions thereof requiring consent for the replacement of a discharged juror with an alternate). Each side shall have ten peremptory challenges for the regular jurors and two for each alternate juror to be  selected. The  right  to a trial by jury may be waived by the respondent, and upon such waiver, the court shall conduct a trial in accordance with  article forty-two  of the civil practice law and rules, excluding provisions for decision-making by referees.  (c) The provisions of subdivision (g) of section 10.08 of this article and article forty-five of the civil practice  law  and  rules  shall  be applicable  to  trials  conducted pursuant to this section. The jury may hear evidence of the degree to which the respondent cooperated with  the psychiatric  examination. If the court finds that the respondent refused to submit to a psychiatric examination pursuant to  this  article,  upon request  it shall so instruct the jury. The respondent's commission of a sex offense shall be deemed established and shall not be relitigated  at the  trial,  whenever  it  is  shown  that:  (i)  the  respondent stands convicted of such offense; or (ii) the respondent  previously  has  been found  not  responsible  by  reason  of mental disease or defect for the commission of such offense or for  an  act  or  acts  constituting  such offense.  Whenever the petition alleges the respondent's commission of a designated felony prior to the effective date of this article, the issue of whether such offense was sexually motivated shall  be  determined  by the jury.  (d)  The jury, or the court if a jury trial is waived, shall determine by clear and convincing evidence whether the respondent  is  a  detained sex  offender who suffers from a mental abnormality. The burden of proof shall be on the attorney general. A determination, if made by the  jury, must  be  by  unanimous  verdict.  In  charging  the  jury,  the court's instructions shall include the admonishment that the jury may  not  find solely on the basis of the respondent's commission of a sex offense that the  respondent  is  a  detained  sex offender who suffers from a mental abnormality. In the case of a respondent committed pursuant  to  article seven  hundred  thirty  of the criminal procedure law for a sex offense, the attorney general shall have the  burden  of  proving  by  clear  and convincing  evidence  that  the  respondent  did  engage  in the conduct constituting such offense.  (e) If the jury unanimously, or the court if a jury trial  is  waived, determines that the attorney general has not sustained his or her burden of  establishing  that  the  respondent  is  a detained sex offender who suffers from a mental abnormality, the court shall dismiss the  petition and  the  respondent  shall  be  released  if  and as warranted by other  provisions of law. If the jury is unable to render a unanimous  verdict, the  court  shall  continue  any  commitment order previously issued and schedule a second trial to be held within sixty days in accordance  with the  provisions  of subdivision (a) of this section. If the jury in such second trial is unable to render a unanimous verdict as to  whether  the respondent  is  a  detained  sex  offender  who  suffers  from  a mental abnormality, the court shall dismiss the petition.  (f) If the jury, or the court if a jury trial  is  waived,  determines that the respondent is a detained sex offender who suffers from a mental abnormality,  then  the court shall consider whether the respondent is a dangerous sex offender requiring confinement or a sex offender requiring strict and intensive  supervision.  The  parties  may  offer  additional evidence,  and  the  court shall hear argument, as to that issue. If the court finds by clear and convincing evidence that the respondent  has  a mental  abnormality involving such a strong predisposition to commit sex offenses, and such an inability to control behavior, that the respondent is likely to be a danger to others and to commit  sex  offenses  if  not confined  to  a secure treatment facility, then the court shall find the respondent to be a dangerous sex offender requiring confinement. In such case, the respondent shall be committed to a secure  treatment  facility for  care, treatment, and control until such time as he or she no longer requires confinement. If the court does not find that the respondent  is a  dangerous  sex  offender  requiring confinement, then the court shall make a finding of disposition that the  respondent  is  a  sex  offender requiring  strict and intensive supervision, and the respondent shall be subject to a regimen of strict and intensive supervision  and  treatment in accordance with section 10.11 of this article. In making a finding of disposition,  the  court  shall  consider  the  conditions that would be imposed upon the respondent if  subject  to  a  regimen  of  strict  and intensive supervision, and all available information about the prospects for the respondent's possible re-entry into the community.