N.Y. Mental Hygiene Law § 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.