S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  11293

                          I N  A S S E M B L Y

                              May 25, 2010
                               ___________

Introduced  by  M.  of A. SALADINO, MONTESANO, RAIA, McDONOUGH -- Multi-
  Sponsored by -- M. of A.  TEDISCO -- read once  and  referred  to  the
  Committee on Mental Health

AN  ACT  to amend the mental hygiene law, in relation to eliminating the
  alternative of strict and intensive supervision and treatment for  sex
  offenders  requiring  civil management; and to repeal section 10.11 of
  the mental hygiene law and subdivision 9-a of  section  259-a  of  the
  executive law relating thereto

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Subdivision (c) of section 10.01 of the mental hygiene law,
as added by chapter 7 of the  laws  of  2007,  is  amended  to  read  as
follows:
  (c) That [for other sex offenders, it can be effective and appropriate
to  provide  treatment  in  a regimen of strict and intensive outpatient
supervision. Accordingly, civil commitment should be only one element in
a range of responses to the need for treatment of  sex  offenders.  The]
THE  goal  of  a  comprehensive  system should be to protect the public,
reduce recidivism, and ensure offenders have access to proper treatment.
  S 2.  Subdivisions (q), (r) and (s) of section  10.03  of  the  mental
hygiene  law,  as added by chapter 7 of the laws of 2007, are amended to
read as follows:
  (q) "Sex offender requiring civil management"  means  a  detained  sex
offender who suffers from a mental abnormality. 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].
  (r) ["Sex offender requiring strict and intensive supervision" means a
detained sex offender who suffers from a mental abnormality but is not a
dangerous sex offender requiring confinement.
  (s)]  "Sexually  motivated"  means that the act or acts constituting a
designated felony were committed in whole or in substantial part for the
purpose of direct sexual gratification of the actor.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD17508-01-0
              

A. 11293                            2

  S 3. Subdivision (f) of section 10.07 of the mental  hygiene  law,  as
added by chapter 7 of the laws of 2007, is amended to read as follows:
  (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 requir-
ing 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 inten-
sive supervision, and] all available information about the prospects for
the respondent's possible re-entry into the community.
  S  4.  Subdivision  (g) of section 10.08 of the mental hygiene law, as
added by chapter 7 of the laws of 2007, is amended to read as follows:
  (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 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
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 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.

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  S  5.  Subdivisions  (e),  (f)  and (h) of section 10.09 of the mental
hygiene law, as added by chapter 7 of the laws of 2007, are  amended  to
read as follows:
  (e)  If,  at any time, the commissioner determines that the respondent
no longer is a dangerous sex offender requiring confinement, the commis-
sioner 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 subdivi-
sions (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 subdivi-
sion, the attorney general shall have the burden of proof as to  whether
the  respondent is currently a dangerous sex offender requiring confine-
ment.
  (h) At the conclusion of an evidentiary hearing, if the court finds by
clear and convincing evidence that the respondent is currently a danger-
ous 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.]
  S 6. Section 10.11 of the mental hygiene law is REPEALED.
  S  7.  Subdivision  9-a  of  section  259-a  of  the  executive law is
REPEALED.
  S 8. This act shall take effect on the thirtieth day  after  it  shall
have become a law.