N.Y. Mental Hygiene Law § 10.06: Petition and hearing

§ 10.06 Petition and hearing.

(a) If the case review team finds that a respondent is a sex offender

requiring civil management, then the attorney general may file a sex

offender civil management petition in the supreme court or county court

of the county where the respondent is located. In determining whether to

file such a petition, the attorney general shall consider information

about any continuing supervision to which the respondent will be subject

as a result of criminal conviction, and shall take such supervision into

account when assessing the need for further management as provided by

this article. If the attorney general elects to file a sex offender

civil management petition, he or she shall serve a copy of the petition

upon the respondent. The petition shall contain a statement or

statements alleging facts of an evidentiary character tending to support

the allegation that the respondent is a sex offender requiring civil

management. The attorney general shall seek to file the petition within

thirty days after receiving notice of the case review team's finding,

but failure to do so within that period shall not affect the validity of

the petition.

(b) Within ten days after the attorney general files a sex offender

civil management petition, the respondent may file in the same court a

notice of removal to the county of the underlying criminal sex offense

charges. The attorney general may, in the court in which the petition is

pending, move for a retention of venue. Such motion shall be made within

five days after the attorney general is served with a notice of removal,

which time may be extended for good cause shown. The court shall grant

the motion if the attorney general shows good cause for such retention.

If the attorney general does not timely move for a retention of venue,

or does so move and the motion is denied, then the proceedings shall be

transferred to the county of the underlying criminal sex offense

charges. If the respondent does not timely file a notice of removal, or

the attorney general moves for retention of venue and such motion is

granted, then the proceedings shall continue where the petition was

filed.

(c) Promptly upon the filing of a sex offender civil management

petition, or upon a request to the court by the attorney general for an

order pursuant to subdivision (d) of this section that a respondent

submit to an evaluation by a psychiatric examiner, whichever occurs

earlier, the court shall appoint counsel in any case where the

respondent is financially unable to obtain counsel. The court shall

appoint the mental hygiene legal service if possible. In the event that

the court determines that the mental hygiene legal service cannot accept

appointment, the court shall appoint an attorney eligible for

appointment pursuant to article eighteen-B of the county law, or an

entity, if any, that has contracted for the delivery of legal

representation services under subdivision (c) of section 10.15 of this

article. Counsel for the respondent shall be provided with copies of the

written notice made by the case review team, the petition and the

written reports of the psychiatric examiners.

(d) At any time after receiving notice pursuant to subdivision (b) of

section 10.05 of this article, and prior to trial, the attorney general

may request the court in which the sex offender civil management

petition could be filed, or is pending, to order the respondent to

submit to an evaluation by a psychiatric examiner. Upon such a request,

the court shall order that the respondent submit to an evaluation by a

psychiatric examiner chosen by the attorney general and, if the

respondent is not represented by counsel, the court shall appoint

counsel for the respondent. Following the evaluation, such psychiatric

examiner shall report his or her findings in writing to the attorney

general, to counsel for the respondent, and to the court.

(e) At any time after the filing of a sex offender civil management

petition, and prior to trial, the respondent may request the court in

which the petition is pending to order that he or she be evaluated by a

psychiatric examiner. Upon such a request, the court shall order an

evaluation by a psychiatric examiner. If the respondent is financially

unable to obtain an examiner, the court shall appoint an examiner of the

respondent's choice to be paid within the limits prescribed by law.

Following the evaluation, such psychiatric examiner shall report his or

her findings in writing to the respondent or counsel for the respondent,

to the attorney general, and to the court.

(f) Notwithstanding any other provision of this article, if it appears

that the respondent may be released prior to the time the case review

team makes a determination, and the attorney general determines that the

protection of public safety so requires, the attorney general may file a

securing petition at any time after receipt of written notice pursuant

to subdivision (b) of section 10.05 of this article. In such

circumstance, there shall be no probable cause hearing until such time

as the case review team may find that the respondent is a sex offender

requiring civil management. If the case review team determines that the

respondent is not a sex offender requiring civil management, the

attorney general shall so advise the court and the securing petition

shall be dismissed.

(g) Within thirty days after the sex offender civil management

petition is filed, or within such longer period as to which the

respondent may consent, the supreme court or county court before which

the petition is pending shall conduct a hearing without a jury to

determine whether there is probable cause to believe that the respondent

is a sex offender requiring civil management.

(h) If the respondent was released subsequent to notice under

subdivision (b) of section 10.05 of this article, and is therefore at

liberty when the petition is filed, the court shall order the

respondent's return to confinement, observation, commitment,

recommitment or retention, as applicable, for purposes of the probable

cause hearing. When a court issues such an order, the hearing shall

commence no later than seventy-two hours from the date of the

respondent's return. If the respondent is not at liberty when the

petition is filed, but becomes eligible to be released prior to the

probable cause hearing, the court shall order the stay of such release

pending the probable cause hearing. When a court issues such an order,

the hearing shall commence no later than seventy-two hours from the date

of the respondent's anticipated release date. In either case, the

release of the respondent shall be in accordance with other provisions

of law if the hearing does not commence within such period of

seventy-two hours, unless: (i) the failure to commence the hearing was

due to the respondent's request, action or condition, or occurred with

his or her consent; or (ii) the court is satisfied that the attorney

general has shown good cause why the hearing could not so commence. Any

failure to commence the probable cause hearing within the time periods

specified shall not result in the dismissal of the petition and shall

not affect the validity of the hearing or the probable cause

determination.

(i) The provisions of subdivision (g) of section 10.08 of this article

shall be applicable to the hearing. The hearing should be completed in

one session but, in the interest of justice, may be adjourned by the

court.

(j) The respondent's commission of a sex offense shall be deemed

established and shall not be relitigated at the probable cause hearing,

whenever it appears that: (i) the respondent stands convicted of such

offense; (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; or (iii) the respondent

was indicted for such offense by a grand jury but found to be

incompetent to stand trial for 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 there is probable

cause to believe that the commission of such offense was sexually

motivated shall be determined by the court.

(k) At the conclusion of the hearing, the court shall determine

whether there is probable cause to believe that the respondent is a sex

offender requiring civil management. If the court determines that

probable cause has not been established, the court shall issue an order

dismissing the petition, and the respondent's release shall be in

accordance with other applicable provisions of law. If the court

determines that probable cause has been established: (i) the court shall

order that the respondent be committed to a secure treatment facility

designated by the commissioner for care, treatment and control upon his

or her release, provided, however, that a respondent who otherwise would

be required to be transferred to a secure treatment facility may, upon a

written consent signed by the respondent and his or her counsel, consent

to remain in the custody of the department of corrections and community

supervision pending the outcome of the proceedings under this article,

and that such consent may be revoked in writing at any time; (ii) the

court shall set a date for trial in accordance with subdivision (a) of

section 10.07 of this article; and (iii) the respondent shall not be

released pending the completion of such trial.

(l) (1) If a respondent who is transferred to a secure treatment

facility pursuant to subdivision (k) of this section, has not yet

reached his or her maximum expiration date on the underlying determinate

or indeterminate sentence of imprisonment, is significantly disruptive

of the treatment program at such secure treatment facility, the person

in charge of treatment programs at such facility may initiate a

proceeding to obtain an order that the respondent shall be transferred

to the custody of the department of corrections and community

supervision for such conduct.

(2) Such a proceeding shall be initiated by a written notice served

upon the respondent, and provided by mail to his or her counsel (or by

electronic mail or facsimile to a destination identified by such counsel

for such purpose). Such notice shall identify in detail the dates, times

and nature of the alleged misconduct pursuant to paragraph one of this

subdivision, the possible sanctions, and the date, time and location of

the hearing.

(3) A hearing on the allegations shall be held no less than ten days

nor more than sixty days after such notice is served on the respondent

and provided to his or her counsel. The hearing shall be conducted by

the director of the secure treatment facility, or his or her designee.

The respondent may be represented by counsel. Evidence shall be

introduced through witnesses and documents, if any, and both the person

in charge of the treatment program presenting the case and the

respondent may call and cross-examine witnesses and present documentary

evidence relevant to the question of whether the respondent has been

significantly disruptive of the treatment program. The presiding officer

may accept such evidence without applying formal state or federal rules

of evidence. The hearing shall be recorded or a stenographic record of

the proceeding shall be kept. When hearing the matter and, if the

allegations are sustained, the presiding officer shall consider the

respondent's mental health condition and its effect, if any, on his or

her conduct.

(4) At the conclusion of the hearing, if the presiding officer is

satisfied that there is a preponderance of evidence that the respondent

has been significantly disruptive of the treatment program at the secure

treatment facility, the presiding officer shall so find. In such event,

the presiding officer may order the respondent's transfer back to the

custody of the department of corrections and community supervision for a

period of up to six months, provided however, that when such respondent

reaches the maximum expiration date of his or her underlying sentence he

or she shall be returned to a secure treatment facility unless he or she

consents in writing as provided in subdivision (k) of this section to

remaining in the custody of the department of corrections and community

supervision and provided further that he or she shall be returned to a

secure treatment facility if the final order issued pursuant to

subdivision (f) of section 10.07 of this article requires placement in a

secure treatment facility.

(5) At the conclusion of the hearing, the presiding officer shall

prepare a written statement, to be made available to the respondent and

his or her counsel, indicating the evidence relied on, the reasons for

the determination and specifying the procedures and time frame for

administrative appeal to the commissioner. The determination may be

appealed to the commissioner in accordance with procedures established

in writing by the department. The respondent shall be given at least ten

days after notice of the determination has been served and the

transcript or recording of the proceeding (with appropriate access

equipment) has been provided to perfect the appeal. The respondent may

be represented by counsel on the administrative appeal.