Assembly Bill A2038

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

                                  2038

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                            January 11, 2011
                               ___________

Introduced  by  M.  of  A.  TEDISCO, AMEDORE, BURLING, CALHOUN, FINCH --
  Multi-Sponsored by -- M.  of A. BUTLER, CONTE, CROUCH, DUPREY, GIGLIO,
  JORDAN, McDONOUGH, McKEVITT, J. MILLER, MOLINARO, OAKS, RAIA, REILICH,
  SALADINO, THIELE -- read once and referred to the Committee on  Mental
  Health

AN  ACT  to  amend  the  mental hygiene law, in relation to allowing the
  detention of a respondent of a "sex offender requiring  civil  manage-
  ment  petition"  pending trial, and to establish the standard of proof
  at trial be "beyond a reasonable doubt"  rather  than  "by  clear  and
  convincing evidence"

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

  Section 1. Subdivision (k) of section 10.06 of the mental hygiene law,
as amended by section 1 of part H of chapter 58 of the laws of 2009,  is
amended to read as follows:
  (k) At the conclusion of the hearing, the court shall determine wheth-
er  there  is  probable  cause  to  believe that the respondent is a sex
offender requiring civil management. 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[: (i) the court shall
order that the respondent be committed to a  secure  treatment  facility
designated  by the commissioner for care, treatment and control upon his
or her release, provided, however, that a respondent who otherwise would
be required to be transferred to a secure treatment facility may, upon a
written consent signed by the respondent and his or her counsel, consent
to remain in the custody of  the  department  of  correctional  services
pending the outcome of the proceedings under this article, and that such
consent may be revoked in writing at any time; (ii)] the court shall set
a  date for trial in accordance with subdivision (a) of section 10.07 of

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01969-01-1
              

A. 2038                             2

this article. IF RESPONDENT IS EITHER AT LIBERTY  AT  THE  TIME  OF  THE
HEARING  OR  ELIGIBLE FOR RELEASE FROM IMPRISONMENT DURING THE PERIOD OF
TIME BETWEEN THE HEARING AND THE TRIAL DATE,  THE  COURT  SHALL  FURTHER
DETERMINE WHETHER THERE IS PROBABLE CAUSE TO BELIEVE THAT THE RESPONDENT
IS  A  DANGEROUS SEX OFFENDER REQUIRING CONFINEMENT. IF THE COURT DETER-
MINES THAT PROBABLE CAUSE HAS NOT  BEEN  ESTABLISHED,  THE  COURT  SHALL
ORDER  THE  RESPONDENT'S  RELEASE  AND SHALL BE IN ACCORDANCE WITH OTHER
APPLICABLE PROVISIONS OF LAW, AND THE COURT SHALL ORDER  THE  RESPONDENT
APPEAR  FOR  TRIAL. IF THE COURT DETERMINES THAT PROBABLE CAUSE HAS BEEN
ESTABLISHED THE COURT SHALL ORDER THAT THE RESPONDENT BE COMMITTED TO  A
SECURE  TREATMENT  FACILITY  DESIGNATED  BY  THE  COMMISSIONER FOR CARE,
TREATMENT AND CONTROL UPON HIS OR HER RELEASE; and [(iii)] the  respond-
ent shall not be released pending the completion of such trial.
  S  2.  Subdivision  (d) 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:
  (d) The jury, or the court if a jury trial is waived, shall  determine
[by clear and convincing evidence] BEYOND A REASONABLE DOUBT whether the
respondent  is  a detained sex offender who suffers from a mental abnor-
mality. The burden of proof shall be on the attorney general. A determi-
nation, 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] BEYOND A REASONABLE  DOUBT  that  the
respondent did engage in the conduct constituting such offense.
  S 3. This act shall take effect immediately.