2023 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.