NY Ment Hygiene L § 10.08 (2021)
2021 New York Laws MHY - Mental Hygiene Title B - Mental Health Act Article 10 - Sex Offenders Requiring Civil Commitment or Supervision 10.08 - Procedures Under This Article.

§ 10.08 Procedures under this article.  (a)  When  a respondent submits to an examination pursuant to an order issued in accordance with  this  article,  any  statement  made  by  the respondent for the purpose of the examination shall be kept confidential in  accordance  with the provisions of section 33.13 of this chapter and shall be inadmissible in evidence against him or  her  in  any  criminal action  or  proceeding,  provided  that  such  statements may be used in proceedings under this article.  (b) A psychiatric examiner chosen by the attorney general  shall  have reasonable access to the respondent for the purpose of such examination, as  well  as to the respondent's relevant medical, clinical, criminal or other records and reports. A psychiatric examiner chosen by or appointed on behalf  of  the  respondent  shall  have  reasonable  access  to  the respondent's relevant medical, clinical or criminal records and reports, except  that  such  psychiatric  examiner  shall not have access without court order and for good cause shown to the name of, address of, or  any other identifying information about the victim or victims. To the extent possible,  such  identifying  information  should  be  redacted so as to provide the examiner with access to the  balance  of  the  document.  In conducting  examinations  under  this article, psychiatric examiners may employ any method that is accepted by the  medical  profession  for  the examination  of persons alleged to be suffering from a mental disability or mental abnormality.  (c) Notwithstanding any other provision of law, the commissioner,  the case  review panel and the attorney general shall be entitled to request from any agency, office, department or other entity of  the  state,  and such  entity  shall  be authorized to provide upon such request, any and all records and reports  relating  to  the  respondent's  commission  or alleged  commission  of  a sex offense, the institutional adjustment and any treatment received by such respondent, and any medical, clinical  or other  information relevant to a determination of whether the respondent is a sex offender requiring  civil  management.  Otherwise  confidential materials  obtained for purposes of proceedings pursuant to this article shall not be further disseminated or  otherwise  used  except  for  such purposes.  Nothing  in  this  article shall be construed to restrict any right of a respondent to obtain his or her own records pursuant to other provisions of law.  (d) The attorney general shall make records in his or  her  possession and  relevant  to  the respondent available for inspection or copying by counsel for the respondent for purposes of hearing,  trial,  and  appeal provided,  however,  that  counsel shall not have access to the name of, address of, or any other identifying information  about  the  victim  or victims, or to any investigative or other reports that relate to matters beyond  the  scope of the proceedings and are confidential or privileged from disclosure. To the extent possible,  such  identifying  information should  be  redacted so as to provide counsel with access to the balance of the document.  (e) At any hearing  or  trial  pursuant  to  the  provisions  of  this article,  the  court may change the venue of the trial to any county for good cause, which may include considerations relating to the convenience of the parties or witnesses or the condition of the respondent.  (e-1) Records or reports provided to the respondent in accordance with this article shall be disclosed in the circumstances  and  in  the  same manner  as  records  and reports disclosed pursuant to the provisions of section 33.16 of this chapter.  (f) Time periods specified by provisions of this article  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. The court may extend any time period at the request, or on the  consent,  of the  respondent. No provision of this article shall be interpreted so as to  prevent  a respondent, after opportunity to consult with counsel for respondent, from consenting to the relief which could be  sought  by  an agency  with  jurisdiction  by  means  of  a court proceeding under this article.  (g) In preparing for or conducting any hearing or  trial  pursuant  to the  provisions of this article, and in preparing any petition under the provisions of this article, the respondent shall have the right to  have counsel  represent him or her, provided that the respondent shall not be entitled to appointment of counsel prior to the time provided in section 10.06 of this article. The attorney general shall represent  the  state. Any   relevant   written  reports  of  psychiatric  examiners  shall  be admissible, regardless of whether the author of the report is called  to testify,  so  long  as they are certified pursuant to subdivision (c) of rule forty-five hundred eighteen of the civil practice law and rules, in any proceeding or hearing held pursuant to subdivision  (g)  or  (h)  of section  10.06  of  this  article,  paragraph two of subdivision (a), or paragraph four of subdivision (d), or subdivision (e),  (g)  or  (h)  of section 10.11 of this article. In all other proceedings or hearings held pursuant  to this article, such admissibility shall require a showing of the author's unavailability to testify, or other good  cause.  All  plea minutes   and   prior  trial  testimony  from  the  underlying  criminal proceeding, and records from previous proceedings  under  this  article, shall  be  admissible.  Each  witness,  whether  called  by the attorney general or the respondent, must, unless he or she would be authorized to give unsworn evidence at  a  trial,  testify  under  oath,  and  may  be cross-examined. The respondent may, as a matter of right, testify in his or  her  own behalf, call and examine other witnesses, and produce other evidence in his or her behalf. The respondent may not, however, cause  a subpoena  to  be  served  on the person against whom the sex offense was committed or alleged to have been committed by  the  respondent,  except upon  order  of the court for good cause shown. Either party may request closure of the courtroom, or sealing of papers, for good cause shown.  (h) The procedures and standards set forth in this  article  governing the  imposition of conditions upon the respondent are intended to be the minimum required to  provide  for  the  protection  of  the  public  and treatment  of the respondent. Nothing in this article shall be construed to require the availability or  imposition  of  forms  of  treatment  or supervision  other  than  those  for  which  this  article  specifically provides.  (i) (1) At a proceeding conducted pursuant to subdivision (g)  or  (h) of  section  10.06  of  this  article,  a psychiatric examiner called to testify  may  be  permitted,  upon  good  cause  shown,  to  testify  by electronic   appearance   in  the  court  by  means  of  an  independent audio-visual system, as that phrase is defined  in  subdivision  one  of section  182.10  of the criminal procedure law. It shall constitute good cause to permit such an electronic appearance that such proposed witness is currently employed by the state at a  secure  treatment  facility  or another   work   location  unless  there  are  compelling  circumstances requiring the witness' personal presence at the court proceeding.  (2) A copy of any clinical record or other  document  that  the  party calling  such  psychiatric examiner intends to present to the witness or introduce during the direct testimony of such  psychiatric  examiner  by electronic  appearance  shall  be provided to opposing counsel and, in a manner consistent with section 33.16 of this  chapter,  the  respondent: (i)  five  days or more before the date such person is called to testify  by  electronic  appearance  at  a  proceeding  conducted   pursuant   to subdivision  (g)  of section 10.06 of this article, and (ii) twenty-four hours or more before the date  such  person  is  called  to  testify  by electronic  appearance at a proceeding conducted pursuant to subdivision (h) of such section 10.06.  (3) Except as provided in paragraph four of this  subdivision,  copies of clinical records and documents not made available to opposing counsel and,  where  applicable,  the respondent as required by paragraph two of this subdivision shall not be permitted to be presented to  the  witness on  direct  examination or introduced in evidence without the consent of opposing counsel provided, however, that where good cause is  shown  why such  clinical record or other document was not provided sufficiently in advance as required by this subdivision,  the  court  shall  allow  such clinical  record  or other document to be provided by appropriate means, including but not limited to facsimile or  electronic  means,  and  then used  or  considered  in the same manner as if timely advance disclosure had been made.  (4) The court shall order that copies of clinical  records  and  other documents  relevant  for  cross-examination,  re-direct  examination  or re-cross examination of such witness testifying by electronic means, not otherwise provided pursuant to this subdivision, be provided to opposing counsel and, in a manner consistent with section 33.16 of this  chapter, the  respondent,  by  appropriate  means,  including  but not limited to facsimile or other electronic means.  (5) For purposes of this subdivision, an "electronic appearance" means an appearance at which a participant is not present in the court, but in which all of the participants are able to see and hear the  simultaneous reproductions of the voices and images of the judge, counsel, respondent and   any  other  appropriate  participant.  When  a  witness  makes  an electronic  appearance  pursuant  to   this   subdivision,   the   court stenographer  shall  record  any statements in the same manner as if the witness had made a personal appearance.