NY Ment Hygiene L § 10.09 (2021)
2021 New York Laws MHY - Mental Hygiene Title B - Mental Health Act Article 10 - Sex Offenders Requiring Civil Commitment or Supervision 10.09 - Annual Examinations and Petitions for Discharge.

§ 10.09 Annual examinations and petitions for discharge.  (a)  The  commissioner  shall  provide  the respondent and counsel for respondent with an annual written notice of the right  to  petition  the court  for  discharge. The notice shall contain a form for the waiver of the right to petition for discharge.  (b) The commissioner shall also assure that each respondent  committed under  this  article  shall have an examination for evaluation of his or her mental condition made at least once every year (calculated from  the date  on  which  the  supreme  or  county  court  judge  last ordered or confirmed the need for continued confinement pursuant to this article or the date on which the  respondent  waived  the  right  to  petition  for discharge  pursuant  to this section, whichever is later, as applicable) conducted by a psychiatric examiner who shall report to the commissioner his or her written findings as to whether the respondent is currently  a dangerous   sex  offender  requiring  confinement.  At  such  time,  the respondent also shall have the right to be evaluated by  an  independent psychiatric  examiner. If the respondent is financially unable to obtain an examiner, the court shall appoint an  examiner  of  the  respondent's choice  to  be  paid within the limits prescribed by law. Following such evaluation, each psychiatric examiner shall report his or  her  findings in  writing  to  the  commissioner  and  to  counsel for respondent. The commissioner shall review relevant records and reports, along  with  the findings of the psychiatric examiners, and shall make a determination in writing  as  to  whether  the  respondent  is  currently a dangerous sex offender requiring confinement.  (c) The commissioner shall annually  forward  the  notice  and  waiver form,   along   with  a  report  including  the  commissioner's  written determination and the findings of the psychiatric  examination,  to  the supreme or county court where the respondent is located.  (d) The court shall hold an evidentiary hearing as to retention of the respondent  within  forty-five days if it appears from one of the annual submissions to the court under subdivision (c) of this section (i)  that the respondent has petitioned, or has not affirmatively waived the right to  petition,  for  discharge,  or  (ii) that even if the respondent has waived the right to petition, and the commissioner has  determined  that the  respondent  remains a dangerous sex offender requiring confinement, the court finds on the basis of the materials described  in  subdivision (b)  of this section that there is a substantial issue as to whether the respondent remains a dangerous sex offender requiring confinement. At an evidentiary hearing on that issue under this subdivision,  the  attorney general shall have the burden of proof.  (e)  If,  at any time, the commissioner determines that the respondent no longer  is  a  dangerous  sex  offender  requiring  confinement,  the commissioner shall petition the court for discharge of the respondent or for  the imposition of a regimen of strict and intensive supervision and treatment. The petition shall be served upon the  attorney  general  and the  respondent,  and  filed  in  the  supreme or county court where the person is located. The court, upon review of the petition, shall  either order the requested relief or order that an evidentiary hearing be held.  (f)  The  respondent  may at any time petition the court for discharge and/or release to the community under a regimen of strict and  intensive supervision  and  treatment.  Upon  review of the respondent's petition, other  than  in  connection  with  annual  reviews   as   described   in subdivisions  (a), (b) and (d) of this section, the court may order that an evidentiary hearing be held, or may deny an evidentiary  hearing  and deny  the petition upon a finding that the petition is frivolous or does not provide sufficient basis for reexamination prior to the next  annual review.   If   the  court  orders  an  evidentiary  hearing  under  this  subdivision, the attorney general shall have the burden of proof  as  to whether  the  respondent is currently a dangerous sex offender requiring confinement.  (g)  In  connection  with  any  evidentiary  hearing  held pursuant to subdivision (d), (e), or (f) of this section, upon the request of either party or upon its own motion, the court may  direct  the  submission  of evidence, and may order a psychiatric evaluation if the court finds that any  available  examination  reports  are  not  current or otherwise not sufficient.  (h) At the conclusion of an evidentiary hearing, if the court finds by clear and  convincing  evidence  that  the  respondent  is  currently  a dangerous  sex  offender requiring confinement, the court shall continue the respondent's confinement. Otherwise the court, unless it finds  that the  respondent no longer suffers from a mental abnormality, shall issue an order providing for the discharge of the respondent to a  regimen  of strict and intensive supervision and treatment pursuant to section 10.11 of this article.