Passed by a majority vote, three-fifths being present. This act shall be known and may be cited as the "sex offender management and treatment act. The mental hygiene law is amended by adding a new article 10 to read as follows: The legislature finds as follows: Civil and criminal processes have distinct but overlapping goals, and both should be part of an integrated approach that is based on evolving scientific understanding, flexible enough to respond to current needs of individual offenders, and sufficient to provide mean- ingful treatment and to protect the public.
These offenders may require long-term specialized treatment modalities to address their risk to reoffend. They should receive such treatment while they are incarcerated as a result of the criminal process, and should continue to receive treatment when that incarceration comes to an end.
In extreme cases, confinement of the most dangerous offenders will need to be extended by civil process in order to provide them such treatment and to protect the public from their recidivistic conduct.
Accordingly, civil commitment should be only one element in a range of responses to the need for treatment of sex offenders. The goal of a comprehensive system should be to protect the public, reduce recidivism, and ensure offenders have access to proper treatment. For some recidivistic sex offenders, appropriate criminal sentences, including long-term post- release supervision, may be the most appropriate way to achieve those goals.
It should be based on the most accurate scientific understanding available, including the use of current, validated risk assessment instruments. Ideally, effective risk assessment should begin to occur prior to sentencing in the criminal process, and it should guide the process of civil commitment. Accordingly, civil commitment of sex offenders should be implemented in ways that do not endanger, stigmatize, or divert needed treatment resources away from such traditional mental health patients.
As used in this article, the following terms shall have the following meanings: 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.
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. At least two members of each team shall be professionals in the field of mental health or the field of mental retardation and developmental disa- bilities, as appropriate, with experience in the treatment, diagnosis, risk assessment or management of sex offenders.
To the extent practica- ble, the workload of the case review panel should be evenly distributed among its members. Members of the case review panel and psychiatric examiners should be free to exercise independent professional judgment without pressure or retaliation for the exercise of that judgment from any source.
When the division of parole is the agency with jurisdiction, it may give such notice. The agency with jurisdiction shall seek to give such notice at least one hundred twenty days prior to the person's antic- ipated release, but failure to give notice within such time period shall not affect the validity of such notice or any subsequent action, includ- ing the filing of a sex offender civil management petition.
When the commission- er receives notice pursuant to subdivision b of this section, such staff shall review and assess relevant medical, clinical, criminal, or institutional records, actuarial risk assessment instruments or other records and reports, including records and reports provided by the district attorney of the county where the person was convicted, or in the case of persons determined to be incapacitated or not responsible by reason of mental disease or defect, the county where the person was charged.
Upon such review and assessment, the staff shall determine whether the person who is the subject of the notice should be referred to a case review team for evaluation. Upon such referral, the case review team shall review relevant records, including those described in subdivisions c and d of this section, and may arrange for a psychiatric examination of the respondent.
Based on the review and assessment of such information, the case review team shall consider whether the respondent is a sex offender requiring civil management. The written notice must be accompanied by a written report from a psychiatric examiner that includes a finding as to whether the respondent has a mental abnormality.
Where the notice indicates that a respondent stands convicted of or was charged with a designated felony, it shall also include the case review team's finding as to whether the act was sexually motivated. The case review team shall provide its written notice to the attorney general and the respondent within forty-five days of the commissioner receiving the notice of anticipated release.
However, failure to do so within that time period shall not affect the validity of such notice or finding or any subsequent action, including the attorney general's filing of a sex offender civil management petition subsequent to receiving the finding of the case review team. 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 state- ments alleging facts of an evidentiary character tending to support the allegation that the respondent is a sex offender requiring civil manage- ment. The attorney general shall seek to file the petition within thir- ty 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.
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 charg- es. If the respondent does not timely file a notice of removal, or the attorney general moves for retention of venue and such motion is grant- ed, then the proceedings shall continue where the petition was filed.
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 appoint- ment, 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 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.
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 respond- ent. 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.
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.
In such circum- stance, there shall be no probable cause hearing until such time as the case review team may find that the respondent is a sex offender requir- ing civil management.
If the case review team determines that the respondent is not a sex offender requiring civil management, the attor- ney general shall so advise the court and the securing petition shall be dismissed. 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: Any failure to commence the probable cause hear- ing 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.
The hearing should be completed in one session but, in the interest of justice, may be adjourned by the court. 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.
If the court determines that proba- ble 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 deter- mines that probable cause has been established: 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.
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.
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: 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. 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.
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 abnor- mality, the court shall dismiss the petition.
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 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 inten- sive supervision, and all available information about the prospects for the respondent's possible re-entry into the community.
A psychiatric examiner chosen by or appointed on behalf of the respondent shall have reasonable access to the respond- ent'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 iden- tifying 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 exam- inations 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.
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. To the extent possible, such identifying information should be redacted so as to provide counsel with access to the balance of the document.
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 arti- cle.
The attorney general shall represent the state. Any relevant written reports of psychiatric examiners shall be admissi- ble, regardless of whether the author of the report is called to testi- fy, 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 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 admissi- ble. 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. Nothing in this article shall be construed to require the availability or imposition of forms of treatment or super- vision other than those for which this article specifically provides. The notice shall contain a form for the waiver of the right to petition for discharge.
At such time, the respondent also shall have the right to be evaluated by an independent psychiatric examiner. 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 examin- ers, and shall make a determination in writing as to whether the respondent is currently a dangerous sex offender requiring confinement.
At an evidentiary hearing on that issue under this subdivision, the attor- ney general shall have the burden of proof. 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.