2023 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.