N.Y. Mental Hygiene Law § 10.09: Annual examinations and petitions for discharge

§ 10.09 Annual examinations and petitions for discharge.

(a) The commissioner shall provide the respondent and counsel for

respondent with an annual written notice of the right to petition the

court for discharge. The notice shall contain a form for the waiver of

the right to petition for discharge.

(b) The commissioner shall also assure that each respondent committed

under this article shall have an examination for evaluation of his or

her mental condition made at least once every year (calculated from the

date on which the supreme or county court judge last ordered or

confirmed the need for continued confinement pursuant to this article or

the date on which the respondent waived the right to petition for

discharge pursuant to this section, whichever is later, as applicable)

conducted by a psychiatric examiner who shall report to the commissioner

his or her written findings as to whether the respondent is currently a

dangerous sex offender requiring confinement. At such time, the

respondent also shall have the right to be evaluated by an independent

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 such

evaluation, each psychiatric examiner shall report his or her findings

in writing to the commissioner and to counsel for respondent. The

commissioner shall review relevant records and reports, along with the

findings of the psychiatric examiners, and shall make a determination in

writing as to whether the respondent is currently a dangerous sex

offender requiring confinement.

(c) The commissioner shall annually forward the notice and waiver

form, along with a report including the commissioner's written

determination and the findings of the psychiatric examination, to the

supreme or county court where the respondent is located.

(d) The court shall hold an evidentiary hearing as to retention of the

respondent within forty-five days if it appears from one of the annual

submissions to the court under subdivision (c) of this section (i) that

the respondent has petitioned, or has not affirmatively waived the right

to petition, for discharge, or (ii) that even if the respondent has

waived the right to petition, and the commissioner has determined that

the respondent remains a dangerous sex offender requiring confinement,

the court finds on the basis of the materials described in subdivision

(b) of this section that there is a substantial issue as to whether the

respondent remains a dangerous sex offender requiring confinement. At an

evidentiary hearing on that issue under this subdivision, the attorney

general shall have the burden of proof.

(e) If, at any time, the commissioner determines that the respondent

no longer is a dangerous sex offender requiring confinement, the

commissioner shall petition the court for discharge of the respondent or

for the imposition of a regimen of strict and intensive supervision and

treatment. The petition shall be served upon the attorney general and

the respondent, and filed in the supreme or county court where the

person is located. The court, upon review of the petition, shall either

order the requested relief or order that an evidentiary hearing be held.

(f) The respondent may at any time petition the court for discharge

and/or release to the community under a regimen of strict and intensive

supervision and treatment. Upon review of the respondent's petition,

other than in connection with annual reviews as described in

subdivisions (a), (b) and (d) of this section, the court may order that

an evidentiary hearing be held, or may deny an evidentiary hearing and

deny the petition upon a finding that the petition is frivolous or does

not provide sufficient basis for reexamination prior to the next annual

review. If the court orders an evidentiary hearing under this

subdivision, the attorney general shall have the burden of proof as to

whether the respondent is currently a dangerous sex offender requiring

confinement.

(g) In connection with any evidentiary hearing held pursuant to

subdivision (d), (e), or (f) of this section, upon the request of either

party or upon its own motion, the court may direct the submission of

evidence, and may order a psychiatric evaluation if the court finds that

any available examination reports are not current or otherwise not

sufficient.

(h) At the conclusion of an evidentiary hearing, if the court finds by

clear and convincing evidence that the respondent is currently a

dangerous sex offender requiring confinement, the court shall continue

the respondent's confinement. Otherwise the court, unless it finds that

the respondent no longer suffers from a mental abnormality, shall issue

an order providing for the discharge of the respondent to a regimen of

strict and intensive supervision and treatment pursuant to section 10.11

of this article.