2023 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.