§ 10.06 — Petition and hearing

New York § 10.06

• Jurisdiction: New York
• Law MHY: Mental Hygiene
• Title B: Mental Health Act
• Art. 10: Sex Offenders Requiring Civil Commitment or Supervision

Text

§ 10.06 Petition and hearing.\n (a) If the case review team finds that a respondent is a sex offender\nrequiring civil management, then the attorney general may file a sex\noffender civil management petition in the supreme court or county court\nof the county where the respondent is located. In determining whether to\nfile such a petition, the attorney general shall consider information\nabout any continuing supervision to which the respondent will be subject\nas a result of criminal conviction, and shall take such supervision into\naccount when assessing the need for further management as provided by\nthis article. If the attorney general elects to file a sex offender\ncivil management petition, he or she shall serve a copy of the petition\nupon the respondent. The petition shall contain a statement or\nstatements alleging facts of an evidentiary character tending to support\nthe allegation that the respondent is a sex offender requiring civil\nmanagement. The attorney general shall seek to file the petition within\nthirty days after receiving notice of the case review team's finding,\nbut failure to do so within that period shall not affect the validity of\nthe petition.\n (b) Within ten days after the attorney general files a sex offender\ncivil management petition, the respondent may file in the same court a\nnotice of removal to the county of the underlying criminal sex offense\ncharges. The attorney general may, in the court in which the petition is\npending, move for a retention of venue. Such motion shall be made within\nfive days after the attorney general is served with a notice of removal,\nwhich time may be extended for good cause shown. The court shall grant\nthe motion if the attorney general shows good cause for such retention.\nIf the attorney general does not timely move for a retention of venue,\nor does so move and the motion is denied, then the proceedings shall be\ntransferred to the county of the underlying criminal sex offense\ncharges. If the respondent does not timely file a notice of removal, or\nthe attorney general moves for retention of venue and such motion is\ngranted, then the proceedings shall continue where the petition was\nfiled.\n (c) Promptly upon the filing of a sex offender civil management\npetition, or upon a request to the court by the attorney general for an\norder pursuant to subdivision (d) of this section that a respondent\nsubmit to an evaluation by a psychiatric examiner, whichever occurs\nearlier, the court shall appoint counsel in any case where the\nrespondent is financially unable to obtain counsel. The court shall\nappoint the mental hygiene legal service if possible. In the event that\nthe court determines that the mental hygiene legal service cannot accept\nappointment, the court shall appoint an attorney eligible for\nappointment pursuant to article eighteen-B of the county law, or an\nentity, if any, that has contracted for the delivery of legal\nrepresentation services under subdivision (c) of section 10.15 of this\narticle. Counsel for the respondent shall be provided with copies of the\nwritten notice made by the case review team, the petition and the\nwritten reports of the psychiatric examiners.\n (d) At any time after receiving notice pursuant to subdivision (b) of\nsection 10.05 of this article, and prior to trial, the attorney general\nmay request the court in which the sex offender civil management\npetition could be filed, or is pending, to order the respondent to\nsubmit to an evaluation by a psychiatric examiner. Upon such a request,\nthe court shall order that the respondent submit to an evaluation by a\npsychiatric examiner chosen by the attorney general and, if the\nrespondent is not represented by counsel, the court shall appoint\ncounsel for the respondent. Following the evaluation, such psychiatric\nexaminer shall report his or her findings in writing to the attorney\ngeneral, to counsel for the respondent, and to the court.\n (e) At any time after the filing of a sex offender civil management\npetition, and prior to trial, the respondent may request the court in\nwhich the petition is pending to order that he or she be evaluated by a\npsychiatric examiner. Upon such a request, the court shall order an\nevaluation by a psychiatric examiner. If the respondent is financially\nunable to obtain an examiner, the court shall appoint an examiner of the\nrespondent's choice to be paid within the limits prescribed by law.\nFollowing the evaluation, such psychiatric examiner shall report his or\nher findings in writing to the respondent or counsel for the respondent,\nto the attorney general, and to the court.\n (f) Notwithstanding any other provision of this article, if it appears\nthat the respondent may be released prior to the time the case review\nteam makes a determination, and the attorney general determines that the\nprotection of public safety so requires, the attorney general may file a\nsecuring petition at any time after receipt of written notice pursuant\nto subdivision (b) of section 10.05 of this article. In such\ncircumstance, there shall be no probable cause hearing until such time\nas the case review team may find that the respondent is a sex offender\nrequiring civil management. If the case review team determines that the\nrespondent is not a sex offender requiring civil management, the\nattorney general shall so advise the court and the securing petition\nshall be dismissed.\n (g) Within thirty days after the sex offender civil management\npetition is filed, or within such longer period as to which the\nrespondent may consent, the supreme court or county court before which\nthe petition is pending shall conduct a hearing without a jury to\ndetermine whether there is probable cause to believe that the respondent\nis a sex offender requiring civil management.\n (h) If the respondent was released subsequent to notice under\nsubdivision (b) of section 10.05 of this article, and is therefore at\nliberty when the petition is filed, the court shall order the\nrespondent's return to confinement, observation, commitment,\nrecommitment or retention, as applicable, for purposes of the probable\ncause hearing. When a court issues such an order, the hearing shall\ncommence no later than seventy-two hours from the date of the\nrespondent's return. If the respondent is not at liberty when the\npetition is filed, but becomes eligible to be released prior to the\nprobable cause hearing, the court shall order the stay of such release\npending the probable cause hearing. When a court issues such an order,\nthe hearing shall commence no later than seventy-two hours from the date\nof the respondent's anticipated release date. In either case, the\nrelease of the respondent shall be in accordance with other provisions\nof law if the hearing does not commence within such period of\nseventy-two hours, unless: (i) the failure to commence the hearing was\ndue to the respondent's request, action or condition, or occurred with\nhis or her consent; or (ii) the court is satisfied that the attorney\ngeneral has shown good cause why the hearing could not so commence. Any\nfailure to commence the probable cause hearing within the time periods\nspecified shall not result in the dismissal of the petition and shall\nnot affect the validity of the hearing or the probable cause\ndetermination.\n (i) The provisions of subdivision (g) of section 10.08 of this article\nshall be applicable to the hearing. The hearing should be completed in\none session but, in the interest of justice, may be adjourned by the\ncourt.\n (j) The respondent's commission of a sex offense shall be deemed\nestablished and shall not be relitigated at the probable cause hearing,\nwhenever it appears that: (i) the respondent stands convicted of such\noffense; (ii) the respondent previously has been found not responsible\nby reason of mental disease or defect for the commission of such offense\nor for an act or acts constituting such offense; or (iii) the respondent\nwas indicted for such offense by a grand jury but found to be\nincompetent to stand trial for such offense. Whenever the petition\nalleges the respondent's commission of a designated felony prior to the\neffective date of this article, the issue of whether there is probable\ncause to believe that the commission of such offense was sexually\nmotivated shall be determined by the court.\n (k) At the conclusion of the hearing, the court shall determine\nwhether there is probable cause to believe that the respondent is a sex\noffender requiring civil management. If the court determines that\nprobable cause has not been established, the court shall issue an order\ndismissing the petition, and the respondent's release shall be in\naccordance with other applicable provisions of law. If the court\ndetermines that probable cause has been established: (i) the court shall\norder that the respondent be committed to a secure treatment facility\ndesignated by the commissioner for care, treatment and control upon his\nor her release, provided, however, that a respondent who otherwise would\nbe required to be transferred to a secure treatment facility may, upon a\nwritten consent signed by the respondent and his or her counsel, consent\nto remain in the custody of the department of corrections and community\nsupervision pending the outcome of the proceedings under this article,\nand that such consent may be revoked in writing at any time; (ii) the\ncourt shall set a date for trial in accordance with subdivision (a) of\nsection 10.07 of this article; and (iii) the respondent shall not be\nreleased pending the completion of such trial.\n (l) (1) If a respondent who is transferred to a secure treatment\nfacility pursuant to subdivision (k) of this section, has not yet\nreached his or her maximum expiration date on the underlying determinate\nor indeterminate sentence of imprisonment, is significantly disruptive\nof the treatment program at such secure treatment facility, the person\nin charge of treatment programs at such facility may initiate a\nproceeding to obtain an order that the respondent shall be transferred\nto the custody of the department of corrections and community\nsupervision for such conduct.\n (2) Such a proceeding shall be initiated by a written notice served\nupon the respondent, and provided by mail to his or her counsel (or by\nelectronic mail or facsimile to a destination identified by such counsel\nfor such purpose). Such notice shall identify in detail the dates, times\nand nature of the alleged misconduct pursuant to paragraph one of this\nsubdivision, the possible sanctions, and the date, time and location of\nthe hearing.\n (3) A hearing on the allegations shall be held no less than ten days\nnor more than sixty days after such notice is served on the respondent\nand provided to his or her counsel. The hearing shall be conducted by\nthe director of the secure treatment facility, or his or her designee.\nThe respondent may be represented by counsel. Evidence shall be\nintroduced through witnesses and documents, if any, and both the person\nin charge of the treatment program presenting the case and the\nrespondent may call and cross-examine witnesses and present documentary\nevidence relevant to the question of whether the respondent has been\nsignificantly disruptive of the treatment program. The presiding officer\nmay accept such evidence without applying formal state or federal rules\nof evidence. The hearing shall be recorded or a stenographic record of\nthe proceeding shall be kept. When hearing the matter and, if the\nallegations are sustained, the presiding officer shall consider the\nrespondent's mental health condition and its effect, if any, on his or\nher conduct.\n (4) At the conclusion of the hearing, if the presiding officer is\nsatisfied that there is a preponderance of evidence that the respondent\nhas been significantly disruptive of the treatment program at the secure\ntreatment facility, the presiding officer shall so find. In such event,\nthe presiding officer may order the respondent's transfer back to the\ncustody of the department of corrections and community supervision for a\nperiod of up to six months, provided however, that when such respondent\nreaches the maximum expiration date of his or her underlying sentence he\nor she shall be returned to a secure treatment facility unless he or she\nconsents in writing as provided in subdivision (k) of this section to\nremaining in the custody of the department of corrections and community\nsupervision and provided further that he or she shall be returned to a\nsecure treatment facility if the final order issued pursuant to\nsubdivision (f) of section 10.07 of this article requires placement in a\nsecure treatment facility.\n (5) At the conclusion of the hearing, the presiding officer shall\nprepare a written statement, to be made available to the respondent and\nhis or her counsel, indicating the evidence relied on, the reasons for\nthe determination and specifying the procedures and time frame for\nadministrative appeal to the commissioner. The determination may be\nappealed to the commissioner in accordance with procedures established\nin writing by the department. The respondent shall be given at least ten\ndays after notice of the determination has been served and the\ntranscript or recording of the proceeding (with appropriate access\nequipment) has been provided to perfect the appeal. The respondent may\nbe represented by counsel on the administrative appeal.\n