N.Y. Mental Hygiene Law § 10.08: Procedures under this article

§ 10.08 Procedures under this article.

(a) When a respondent submits to an examination pursuant to an order

issued in accordance with this article, any statement made by the

respondent for the purpose of the examination shall be kept confidential

in accordance with the provisions of section 33.13 of this chapter and

shall be inadmissible in evidence against him or her in any criminal

action or proceeding, provided that such statements may be used in

proceedings under this article.

(b) A psychiatric examiner chosen by the attorney general shall have

reasonable access to the respondent for the purpose of such examination,

as well as to the respondent's relevant medical, clinical, criminal or

other records and reports. A psychiatric examiner chosen by or appointed

on behalf of the respondent shall have reasonable access to the

respondent's relevant medical, clinical or criminal records and reports,

except that such psychiatric examiner shall not have access without

court order and for good cause shown to the name of, address of, or any

other identifying information about the victim or victims. To the extent

possible, such identifying information should be redacted so as to

provide the examiner with access to the balance of the document. In

conducting examinations under this article, psychiatric examiners may

employ any method that is accepted by the medical profession for the

examination of persons alleged to be suffering from a mental disability

or mental abnormality.

(c) Notwithstanding any other provision of law, the commissioner, the

case review panel and the attorney general shall be entitled to request

from any agency, office, department or other entity of the state, and

such entity shall be authorized to provide upon such request, any and

all records and reports relating to the respondent's commission or

alleged commission of a sex offense, the institutional adjustment and

any treatment received by such respondent, and any medical, clinical or

other information relevant to a determination of whether the respondent

is a sex offender requiring civil management. Otherwise confidential

materials obtained for purposes of proceedings pursuant to this article

shall not be further disseminated or otherwise used except for such

purposes. Nothing in this article shall be construed to restrict any

right of a respondent to obtain his or her own records pursuant to other

provisions of law.

(d) The attorney general shall make records in his or her possession

and relevant to the respondent available for inspection or copying by

counsel for the respondent for purposes of hearing, trial, and appeal

provided, however, that counsel shall not have access to the name of,

address of, or any other identifying information about the victim or

victims, or to any investigative or other reports that relate to matters

beyond the scope of the proceedings and are confidential or privileged

from disclosure. To the extent possible, such identifying information

should be redacted so as to provide counsel with access to the balance

of the document.

(e) At any hearing or trial pursuant to the provisions of this

article, the court may change the venue of the trial to any county for

good cause, which may include considerations relating to the convenience

of the parties or witnesses or the condition of the respondent.

(e-1) Records or reports provided to the respondent in accordance with

this article shall be disclosed in the circumstances and in the same

manner as records and reports disclosed pursuant to the provisions of

section 33.16 of this chapter.

(f) Time periods specified by provisions of this article for actions

by state agencies are goals that the agencies shall try to meet, but

failure to act within such periods shall not invalidate later agency

action except as explicitly provided by the provision in question. The

court may extend any time period at the request, or on the consent, of

the respondent. No provision of this article shall be interpreted so as

to prevent a respondent, after opportunity to consult with counsel for

respondent, from consenting to the relief which could be sought by an

agency with jurisdiction by means of a court proceeding under this

article.

(g) In preparing for or conducting any hearing or trial pursuant to

the provisions of this article, and in preparing any petition under the

provisions of this article, the respondent shall have the right to have

counsel represent him or her, provided that the respondent shall not be

entitled to appointment of counsel prior to the time provided in section

10.06 of this article. The attorney general shall represent the state.

Any relevant written reports of psychiatric examiners shall be

admissible, regardless of whether the author of the report is called to

testify, so long as they are certified pursuant to subdivision (c) of

rule forty-five hundred eighteen of the civil practice law and rules, in

any proceeding or hearing held pursuant to subdivision (g) or (h) of

section 10.06 of this article, paragraph two of subdivision (a), or

paragraph four of subdivision (d), or subdivision (e), (g) or (h) of

section 10.11 of this article. In all other proceedings or hearings held

pursuant to this article, such admissibility shall require a showing of

the author's unavailability to testify, or other good cause. All plea

minutes and prior trial testimony from the underlying criminal

proceeding, and records from previous proceedings under this article,

shall be admissible. Each witness, whether called by the attorney

general or the respondent, must, unless he or she would be authorized to

give unsworn evidence at a trial, testify under oath, and may be

cross-examined. The respondent may, as a matter of right, testify in his

or her own behalf, call and examine other witnesses, and produce other

evidence in his or her behalf. The respondent may not, however, cause a

subpoena to be served on the person against whom the sex offense was

committed or alleged to have been committed by the respondent, except

upon order of the court for good cause shown. Either party may request

closure of the courtroom, or sealing of papers, for good cause shown.

(h) The procedures and standards set forth in this article governing

the imposition of conditions upon the respondent are intended to be the

minimum required to provide for the protection of the public and

treatment of the respondent. Nothing in this article shall be construed

to require the availability or imposition of forms of treatment or

supervision other than those for which this article specifically

provides.

(i) * (1) At a proceeding conducted pursuant to subdivision (g) or (h)

of section 10.06 of this article, a psychiatric examiner called to

testify may be permitted, upon good cause shown, to testify by

electronic appearance in the court, as that phrase is defined in section

182.10 of the criminal procedure law. It shall constitute good cause to

permit such an electronic appearance that such proposed witness is

currently employed by the state at a secure treatment facility or

another work location unless there are compelling circumstances

requiring the witness' personal presence at the court proceeding.

* NB Effective until September 1, 2028

* (1) At a proceeding conducted pursuant to subdivision (g) or (h) of

section 10.06 of this article, a psychiatric examiner called to testify

may be permitted, upon good cause shown, to testify by electronic

appearance in the court by means of an independent audio-visual system,

as that phrase is defined in subdivision one of section 182.10 of the

criminal procedure law. It shall constitute good cause to permit such an

electronic appearance that such proposed witness is currently employed

by the state at a secure treatment facility or another work location

unless there are compelling circumstances requiring the witness'

personal presence at the court proceeding.

* NB Effective September 1, 2028

(2) A copy of any clinical record or other document that the party

calling such psychiatric examiner intends to present to the witness or

introduce during the direct testimony of such psychiatric examiner by

electronic appearance shall be provided to opposing counsel and, in a

manner consistent with section 33.16 of this chapter, the respondent:

(i) five days or more before the date such person is called to testify

by electronic appearance at a proceeding conducted pursuant to

subdivision (g) of section 10.06 of this article, and (ii) twenty-four

hours or more before the date such person is called to testify by

electronic appearance at a proceeding conducted pursuant to subdivision

(h) of such section 10.06.

(3) Except as provided in paragraph four of this subdivision, copies

of clinical records and documents not made available to opposing counsel

and, where applicable, the respondent as required by paragraph two of

this subdivision shall not be permitted to be presented to the witness

on direct examination or introduced in evidence without the consent of

opposing counsel provided, however, that where good cause is shown why

such clinical record or other document was not provided sufficiently in

advance as required by this subdivision, the court shall allow such

clinical record or other document to be provided by appropriate means,

including but not limited to facsimile or electronic means, and then

used or considered in the same manner as if timely advance disclosure

had been made.

(4) The court shall order that copies of clinical records and other

documents relevant for cross-examination, re-direct examination or

re-cross examination of such witness testifying by electronic means, not

otherwise provided pursuant to this subdivision, be provided to opposing

counsel and, in a manner consistent with section 33.16 of this chapter,

the respondent, by appropriate means, including but not limited to

facsimile or other electronic means.

(5) For purposes of this subdivision, an "electronic appearance" means

an appearance at which a participant is not present in the court, but in

which all of the participants are able to see and hear the simultaneous

reproductions of the voices and images of the judge, counsel, respondent

and any other appropriate participant. When a witness makes an

electronic appearance pursuant to this subdivision, the court

stenographer shall record any statements in the same manner as if the

witness had made a personal appearance.