NY Ment Hygiene L § 10.06 (2021)
2021 New York Laws MHY - Mental Hygiene Title B - Mental Health Act Article 10 - Sex Offenders Requiring Civil Commitment or Supervision 10.06 - Petition and Hearing.

§ 10.06 Petition and hearing.  (a)  If the case review team finds that a respondent is a sex offender requiring civil management, then the attorney general  may  file  a  sex offender  civil management petition in the supreme court or county court of the county where the respondent is located. In determining whether to file such a petition, the attorney general  shall  consider  information about any continuing supervision to which the respondent will be subject as a result of criminal conviction, and shall take such supervision into account  when  assessing  the need for further management as provided by this article. If the attorney general elects  to  file  a  sex  offender civil  management petition, he or she shall serve a copy of the petition upon  the  respondent.  The  petition  shall  contain  a  statement   or statements alleging facts of an evidentiary character tending to support the  allegation  that  the  respondent is a sex offender requiring civil management. The attorney general shall seek to file the petition  within thirty  days  after  receiving notice of the case review team's finding, but failure to do so within that period shall not affect the validity of the petition.  (b) Within ten days after the attorney general files  a  sex  offender civil  management  petition, the respondent may file in the same court a notice of removal to the county of the underlying criminal  sex  offense charges. The attorney general may, in the court in which the petition is pending, move for a retention of venue. Such motion shall be made within five days after the attorney general is served with a notice of removal, which  time  may be extended for good cause shown. The court shall grant the motion if the attorney general shows good cause for such  retention. If  the  attorney general does not timely move for a retention of venue, or does so move and the motion is denied, then the proceedings shall  be transferred  to  the  county  of  the  underlying  criminal  sex offense charges. If the respondent does not timely file a notice of removal,  or the  attorney  general  moves  for retention of venue and such motion is granted, then the proceedings shall  continue  where  the  petition  was filed.  (c)  Promptly  upon  the  filing  of  a  sex offender civil management petition, or upon a request to the court by the attorney general for  an order  pursuant  to  subdivision  (d)  of this section that a respondent submit to an evaluation by  a  psychiatric  examiner,  whichever  occurs earlier,  the  court  shall  appoint  counsel  in  any  case  where  the respondent is financially unable to  obtain  counsel.  The  court  shall appoint  the mental hygiene legal service if possible. In the event that the court determines that the mental hygiene legal service cannot accept appointment,  the  court  shall  appoint  an   attorney   eligible   for appointment  pursuant  to  article  eighteen-B  of the county law, or an entity,  if  any,  that  has  contracted  for  the  delivery  of   legal representation  services  under subdivision (c) of section 10.15 of this article. Counsel for the respondent shall be provided with copies of the written notice made by the  case  review  team,  the  petition  and  the written reports of the psychiatric examiners.  (d)  At any time after receiving notice pursuant to subdivision (b) of section 10.05 of this article, and prior to trial, the attorney  general may  request  the  court  in  which  the  sex  offender civil management petition could be filed, or is  pending,  to  order  the  respondent  to submit  to an evaluation by a psychiatric examiner. Upon such a request, the court shall order that the respondent submit to an evaluation  by  a psychiatric  examiner  chosen  by  the  attorney  general  and,  if  the respondent is not  represented  by  counsel,  the  court  shall  appoint counsel  for  the respondent. Following the evaluation, such psychiatric  examiner shall report his or her findings in  writing  to  the  attorney general, to counsel for the respondent, and to the court.  (e)  At  any  time after the filing of a sex offender civil management petition, and prior to trial, the respondent may request  the  court  in which  the petition is pending to order that he or she be evaluated by a psychiatric examiner. Upon such a request,  the  court  shall  order  an evaluation  by  a 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  the evaluation, such psychiatric examiner shall report his or her findings in writing to the respondent or counsel for the respondent, to the attorney general, and to the court.  (f) Notwithstanding any other provision of this article, if it appears that the respondent may be released prior to the time  the  case  review team makes a determination, and the attorney general determines that the protection of public safety so requires, the attorney general may file a securing  petition  at any time after receipt of written notice pursuant to  subdivision  (b)  of  section  10.05  of  this  article.   In   such circumstance,  there  shall be no probable cause hearing until such time as the case review team may find that the respondent is a  sex  offender requiring  civil management. If the case review team determines that the respondent is  not  a  sex  offender  requiring  civil  management,  the attorney  general  shall  so  advise the court and the securing petition shall be dismissed.  (g) Within  thirty  days  after  the  sex  offender  civil  management petition  is  filed,  or  within  such  longer  period  as  to which the respondent may consent, the supreme court or county court  before  which the  petition  is  pending  shall  conduct  a  hearing without a jury to determine whether there is probable cause to believe that the respondent is a sex offender requiring civil management.  (h)  If  the  respondent  was  released  subsequent  to  notice  under subdivision  (b)  of  section 10.05 of this article, and is therefore at liberty  when  the  petition  is  filed,  the  court  shall  order   the respondent's    return    to   confinement,   observation,   commitment, recommitment or retention, as applicable, for purposes of  the  probable cause  hearing.  When  a  court  issues such an order, the hearing shall commence  no  later  than  seventy-two  hours  from  the  date  of   the respondent's  return.  If  the  respondent  is  not  at liberty when the petition is filed, but becomes eligible to  be  released  prior  to  the probable  cause  hearing, the court shall order the stay of such release pending the probable cause hearing. When a court issues such  an  order, the hearing shall commence no later than seventy-two hours from the date of  the  respondent's  anticipated  release  date.  In  either case, the release of the respondent shall be in accordance with  other  provisions of  law  if  the  hearing  does  not  commence  within  such  period  of seventy-two hours, unless: (i) the failure to commence the  hearing  was due  to  the respondent's request, action or condition, or occurred with his or her consent; or (ii) the court is  satisfied  that  the  attorney general  has shown good cause why the hearing could not so commence. Any failure to commence the probable cause hearing within the  time  periods specified  shall  not  result in the dismissal of the petition and shall not  affect  the  validity  of  the  hearing  or  the   probable   cause determination.  (i) The provisions of subdivision (g) of section 10.08 of this article shall  be  applicable to the hearing. The hearing should be completed in one session but, in the interest of justice, may  be  adjourned  by  the court.  (j)  The  respondent's  commission  of  a  sex offense shall be deemed established and shall not be relitigated at the probable cause  hearing, whenever  it  appears  that: (i) the respondent stands convicted of such offense; (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; or (iii) the respondent was  indicted  for  such  offense  by  a  grand  jury  but  found  to be incompetent to stand trial  for  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 there  is  probable cause  to  believe  that  the  commission  of  such offense was sexually motivated shall be determined by the court.  (k) At the conclusion  of  the  hearing,  the  court  shall  determine whether  there is probable cause to believe that the respondent is a sex offender requiring  civil  management.  If  the  court  determines  that probable  cause has not been established, the court shall issue an order dismissing the petition,  and  the  respondent's  release  shall  be  in accordance  with  other  applicable  provisions  of  law.  If  the court determines that probable cause has been established: (i) the court shall order that the respondent be committed to a  secure  treatment  facility designated  by the commissioner for care, treatment and control upon his or her release, provided, however, that a respondent who otherwise would be required to be transferred to a secure treatment facility may, upon a written consent signed by the respondent and his or her counsel, consent to remain in the custody of the department of corrections and  community supervision  pending  the outcome of the proceedings under this article, and that such consent may be revoked in writing at any  time;  (ii)  the court  shall  set a date for trial in accordance with subdivision (a) of section 10.07 of this article; and (iii) the  respondent  shall  not  be released pending the completion of such trial.  (l)  (1)  If  a  respondent  who  is transferred to a secure treatment facility pursuant to subdivision  (k)  of  this  section,  has  not  yet reached his or her maximum expiration date on the underlying determinate or  indeterminate  sentence of imprisonment, is significantly disruptive of the treatment program at such secure treatment facility,  the  person in  charge  of  treatment  programs  at  such  facility  may  initiate a proceeding to obtain an order that the respondent shall  be  transferred to   the   custody  of  the  department  of  corrections  and  community supervision for such conduct.  (2) Such a proceeding shall be initiated by a  written  notice  served upon  the  respondent, and provided by mail to his or her counsel (or by electronic mail or facsimile to a destination identified by such counsel for such purpose). Such notice shall identify in detail the dates, times and nature of the alleged misconduct pursuant to paragraph one  of  this subdivision,  the possible sanctions, and the date, time and location of the hearing.  (3) A hearing on the allegations shall be held no less than  ten  days nor  more  than sixty days after such notice is served on the respondent and provided to his or her counsel. The hearing shall  be  conducted  by the  director  of the secure treatment facility, or his or her designee. The  respondent  may  be  represented  by  counsel.  Evidence  shall  be introduced  through witnesses and documents, if any, and both the person in  charge  of  the  treatment  program  presenting  the  case  and  the respondent  may call and cross-examine witnesses and present documentary evidence relevant to the question of whether  the  respondent  has  been significantly disruptive of the treatment program. The presiding officer may  accept such evidence without applying formal state or federal rules of evidence. The hearing shall be recorded or a stenographic  record  of  the  proceeding  shall  be  kept.  When  hearing  the matter and, if the allegations are sustained, the  presiding  officer  shall  consider  the respondent's  mental  health condition and its effect, if any, on his or her conduct.  (4)  At  the  conclusion  of  the hearing, if the presiding officer is satisfied that there is a preponderance of evidence that the  respondent has been significantly disruptive of the treatment program at the secure treatment  facility, the presiding officer shall so find. In such event, the presiding officer may order the respondent's transfer  back  to  the custody of the department of corrections and community supervision for a period  of up to six months, provided however, that when such respondent reaches the maximum expiration date of his or her underlying sentence he or she shall be returned to a secure treatment facility unless he or she consents in writing as provided in subdivision (k) of  this  section  to remaining  in the custody of the department of corrections and community supervision and provided further that he or she shall be returned  to  a secure  treatment  facility  if  the  final  order  issued  pursuant  to subdivision (f) of section 10.07 of this article requires placement in a secure treatment facility.  (5) At the conclusion of the  hearing,  the  presiding  officer  shall prepare  a written statement, to be made available to the respondent and his or her counsel, indicating the evidence relied on, the  reasons  for the  determination  and  specifying  the  procedures  and time frame for administrative appeal to the  commissioner.  The  determination  may  be appealed  to  the commissioner in accordance with procedures established in writing by the department. The respondent shall be given at least ten days  after  notice  of  the  determination  has  been  served  and  the transcript  or  recording  of  the  proceeding  (with appropriate access equipment) has been provided to perfect the appeal. The  respondent  may be represented by counsel on the administrative appeal.