2023 New York Laws › MHY - Mental Hygiene › Title B - Mental Health Act › Article 10 - Sex Offenders Requiring Civil Commitment or Supervision › 10.03 - Definitions.

§ 10.03 Definitions.
As  used in this article, the following terms shall have the following
meanings:
(a) "Agency with jurisdiction" as to a person means that agency which,
during the period in question,  would  be  the  agency  responsible  for
supervising  or releasing such person, and can include the department of
corrections and community supervision, the office of mental health,  and
the office for people with developmental disabilities.
(b)  "Commissioner"  means  the  commissioner  of mental health or the
commissioner of developmental disabilities.
(c) "Correctional facility" means a correctional facility as that term
is defined in section two of the correction law.
(d) "Counsel for respondent" means any counsel that has been  retained
or appointed for respondent, or if no other counsel has been retained or
appointed,  or  prior counsel cannot be located with reasonable efforts,
then the mental hygiene legal service.
(e) "Dangerous sex offender requiring confinement" means a person  who
is a detained sex offender suffering from a mental abnormality involving
such  a  strong  predisposition  to  commit  sex  offenses,  and such an
inability to control behavior, that the person is likely to be a  danger
to  others  and  to  commit  sex  offenses  if  not confined to a secure
treatment facility.
(f) "Designated felony" means any felony offense defined by any of the
following provisions of the penal law: assault in the second  degree  as
defined  in  section  120.05,  assault in the first degree as defined in
section 120.10, gang assault in the second degree as defined in  section
120.06,  gang  assault in the first degree as defined in section 120.07,
stalking in the first degree as defined in section 120.60, strangulation
in the second degree as defined in section 121.12, strangulation in  the
first  degree  as  defined in section 121.13, manslaughter in the second
degree as defined in subdivision one of section 125.15, manslaughter  in
the  first  degree  as  defined  in section 125.20, murder in the second
degree as defined in section 125.25, aggravated  murder  as  defined  in
section 125.26, murder in the first degree as defined in section 125.27,
kidnapping in the second degree as defined in section 135.20, kidnapping
in  the first degree as defined in section 135.25, burglary in the third
degree as defined in section 140.20, burglary in the  second  degree  as
defined  in  section  140.25, burglary in the first degree as defined in
section 140.30, arson in the second degree as defined in section 150.15,
arson in the first degree as defined in section 150.20, robbery  in  the
third  degree as defined in section 160.05, robbery in the second degree
as defined in section 160.10, robbery in the first degree as defined  in
section  160.15,  promoting prostitution in the second degree as defined
in section 230.30, promoting prostitution in the first degree as defined
in section 230.32, compelling prostitution as defined in section 230.33,
sex trafficking of a child as defined in section 230.34-a, disseminating
indecent material to minors in the first degree as  defined  in  section
235.22,  use  of  a  child in a sexual performance as defined in section
263.05, promoting an obscene sexual performance by a child as defined in
section 263.10, promoting a sexual performance by a child as defined  in
section 263.15, or any felony attempt or conspiracy to commit any of the
foregoing offenses.
(g)  "Detained  sex  offender"  means  a  person  who  is in the care,
custody, control, or supervision of an agency  with  jurisdiction,  with
respect  to  a  sex  offense or designated felony, in that the person is
either:
(1) A person who stands convicted of  a  sex  offense  as  defined  in
subdivision  (p)  of  this  section, and is currently serving a sentence

for, or subject to supervision by the division  of  parole,  whether  on
parole or on post-release supervision, for such offense or for a related
offense;
(2)  A person charged with a sex offense who has been determined to be
an incapacitated person with  respect  to  that  offense  and  has  been
committed  pursuant  to  article  seven  hundred  thirty of the criminal
procedure law, but did engage in the conduct constituting such offense;
(3) A person charged with  a  sex  offense  who  has  been  found  not
responsible  by reason of mental disease or defect for the commission of
that offense;
(4) A person who stands convicted of  a  designated  felony  that  was
sexually  motivated  and  committed  prior to the effective date of this
article;
(5) A person convicted of a sex offense who is, or  was  at  any  time
after  September  first,  two  thousand  five,  a  patient in a hospital
operated by the office of mental health, and who was  admitted  directly
to  such facility pursuant to article nine of this title or section four
hundred two of the correction law upon release  or  conditional  release
from  a  correctional  facility,  provided  that  the provisions of this
article shall not be deemed to shorten or lengthen the  time  for  which
such   person   may   be  held  pursuant  to  such  article  or  section
respectively; or
(6) A person who has been determined to be a  sex  offender  requiring
civil management pursuant to this article.
(h)  "Licensed  psychologist"  means  a  person who is registered as a
psychologist under article one hundred fifty-three of the education law.
(i) "Mental abnormality" means a  congenital  or  acquired  condition,
disease or disorder that affects the emotional, cognitive, or volitional
capacity  of  a  person  in  a manner that predisposes him or her to the
commission of conduct constituting a sex offense  and  that  results  in
that person having serious difficulty in controlling such conduct.
(j)  "Psychiatric  examiner"  means  a  qualified  psychiatrist  or  a
licensed psychologist who  has  been  designated  to  examine  a  person
pursuant  to  this  article;  such  designee  may,  but  need not, be an
employee of the office of mental health or the office  for  people  with
developmental disabilities.
(k)  "Qualified  psychiatrist"  means a physician licensed to practice
medicine in New York state who: (1) is a diplomate of the American board
of psychiatry and neurology or is  eligible  to  be  certified  by  that
board;  or  (2)  is  certified  by  the  American  osteopathic  board of
neurology and psychiatry or is eligible to be certified by that board.
(l) "Related offenses" include any offenses  that  are  prosecuted  as
part of the same criminal action or proceeding, or which are part of the
same  criminal  transaction,  or  which  are  the bases of the orders of
commitment received  by  the  department  of  correctional  services  in
connection   with   an   incarcerated   individual's   current  term  of
incarceration.
(m) "Release" and "released" means  release,  conditional  release  or
discharge from confinement, from community supervision by the department
of   corrections   and  community  supervision,  or  from  an  order  of
observation, commitment, recommitment or retention.
(n) "Respondent" means a person referred to a  case  review  team  for
evaluation, a person as to whom a sex offender civil management petition
has  been  recommended by a case review team and not yet filed, or filed
by the attorney general and not dismissed, or  sustained  by  procedures
under this article.
(o)  "Secure  treatment  facility"  means a facility or a portion of a
facility, designated by the commissioner, that may  include  a  facility

located  on the grounds of a correctional facility, that is staffed with
personnel from the office of mental health or the office for people with
developmental disabilities  for  the  purposes  of  providing  care  and
treatment to persons confined under this article, and persons defined in
paragraph  five of subdivision (g) of this section. Personnel from these
same agencies may provide security services, provided  that  such  staff
are  adequately  trained  in  security  methods  and  so  equipped as to
minimize the risk or danger of escape.
(p) "Sex offense" means an act or acts constituting:  (1)  any  felony
defined  in  article  one  hundred  thirty of the penal law, including a
sexually motivated felony; (2) patronizing a person for prostitution  in
the  first  degree  as  defined  in  section  230.06  of  the penal law,
aggravated patronizing a minor for prostitution in the first  degree  as
defined  in  section  230.13  of the penal law, aggravated patronizing a
minor for prostitution in the second degree as defined in section 230.12
of the penal law, aggravated patronizing a minor for prostitution in the
third degree as defined in section 230.11 of the penal  law,  incest  in
the  second  degree  as  defined  in section 255.26 of the penal law, or
incest in the first degree as defined in section  255.27  of  the  penal
law;  (3)  a felony attempt or conspiracy to commit any of the foregoing
offenses set forth in this subdivision; or (4) a designated  felony,  as
defined  in  subdivision  (f) of this section, if sexually motivated and
committed prior to the effective date of this article.
(q) "Sex offender requiring civil management"  means  a  detained  sex
offender who suffers from a mental abnormality. A sex offender requiring
civil  management  can,  as  determined  by procedures set forth in this
article, be either (1) a dangerous sex offender requiring confinement or
(2) a sex offender requiring strict and intensive supervision.
(r) "Sex offender requiring strict and intensive supervision" means  a
detained sex offender who suffers from a mental abnormality but is not a
dangerous sex offender requiring confinement.
(s)  "Sexually  motivated"  means  that the act or acts constituting a
designated felony were committed in whole or in substantial part for the
purpose of direct sexual gratification of the actor.