N.Y. Mental Hygiene Law § 10.07: Trial

§ 10.07 Trial.

(a) Within sixty days after the court determines, pursuant to

subdivision (k) of section 10.06 of this article, that there is probable

cause to believe that the respondent is a sex offender requiring civil

management, the court shall conduct a jury trial to determine whether

the respondent is a detained sex offender who suffers from a mental

abnormality. The trial shall be held before the same court that

conducted the probable cause hearing unless either the attorney general

or counsel for the respondent has moved for a change of venue and the

motion has been granted by the court.

(b) The provisions of article forty-one of the civil practice law and

rules shall apply to the formation and conduct of jury trial under this

section, except that the provisions of the following sections of the

criminal procedure law shall govern to the extent that the provisions of

article forty-one of the civil practice law and rules are inconsistent

therewith: sections 270.05, 270.10, 270.15, 270.20, subdivision one of

section 270.25, and subdivision one of section 270.35 (except for the

provisions thereof requiring consent for the replacement of a discharged

juror with an alternate). Each side shall have ten peremptory challenges

for the regular jurors and two for each alternate juror to be selected.

The right to a trial by jury may be waived by the respondent, and upon

such waiver, the court shall conduct a trial in accordance with article

forty-two of the civil practice law and rules, excluding provisions for

decision-making by referees.

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

and article forty-five of the civil practice law and rules shall be

applicable to trials conducted pursuant to this section. The jury may

hear evidence of the degree to which the respondent cooperated with the

psychiatric examination. If the court finds that the respondent refused

to submit to a psychiatric examination pursuant to this article, upon

request it shall so instruct the jury. The respondent's commission of a

sex offense shall be deemed established and shall not be relitigated at

the trial, whenever it is shown that: (i) the respondent stands

convicted of such offense; or (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. Whenever the petition alleges the respondent's commission of a

designated felony prior to the effective date of this article, the issue

of whether such offense was sexually motivated shall be determined by

the jury.

(d) The jury, or the court if a jury trial is waived, shall determine

by clear and convincing evidence whether the respondent is a detained

sex offender who suffers from a mental abnormality. The burden of proof

shall be on the attorney general. A determination, if made by the jury,

must be by unanimous verdict. In charging the jury, the court's

instructions shall include the admonishment that the jury may not find

solely on the basis of the respondent's commission of a sex offense that

the respondent is a detained sex offender who suffers from a mental

abnormality. In the case of a respondent committed pursuant to article

seven hundred thirty of the criminal procedure law for a sex offense,

the attorney general shall have the burden of proving by clear and

convincing evidence that the respondent did engage in the conduct

constituting such offense.

(e) If the jury unanimously, or the court if a jury trial is waived,

determines that the attorney general has not sustained his or her burden

of establishing that the respondent is a detained sex offender who

suffers from a mental abnormality, the court shall dismiss the petition

and the respondent shall be released if and as warranted by other

provisions of law. If the jury is unable to render a unanimous verdict,

the court shall continue any commitment order previously issued and

schedule a second trial to be held within sixty days in accordance with

the provisions of subdivision (a) of this section. If the jury in such

second trial is unable to render a unanimous verdict as to whether the

respondent is a detained sex offender who suffers from a mental

abnormality, the court shall dismiss the petition.

(f) If the jury, or the court if a jury trial is waived, determines

that the respondent is a detained sex offender who suffers from a mental

abnormality, then the court shall consider whether the respondent is a

dangerous sex offender requiring confinement or a sex offender requiring

strict and intensive supervision. The parties may offer additional

evidence, and the court shall hear argument, as to that issue. If the

court finds by clear and convincing evidence that the respondent has a

mental abnormality involving such a strong predisposition to commit sex

offenses, and such an inability to control behavior, that the respondent

is likely to be a danger to others and to commit sex offenses if not

confined to a secure treatment facility, then the court shall find the

respondent to be a dangerous sex offender requiring confinement. In such

case, the respondent shall be committed to a secure treatment facility

for care, treatment, and control until such time as he or she no longer

requires confinement. If the court does not find that the respondent is

a dangerous sex offender requiring confinement, then the court shall

make a finding of disposition that the respondent is a sex offender

requiring strict and intensive supervision, and the respondent shall be

subject to a regimen of strict and intensive supervision and treatment

in accordance with section 10.11 of this article. In making a finding of

disposition, the court shall consider the conditions that would be

imposed upon the respondent if subject to a regimen of strict and

intensive supervision, and all available information about the prospects

for the respondent's possible re-entry into the community.