S T A T E O F N E W Y O R K
________________________________________________________________________
8633
2017-2018 Regular Sessions
I N A S S E M B L Y
September 1, 2017
___________
Introduced by M. of A. RAIA, BARCLAY, CROUCH, GIGLIO, McDONOUGH, MORI-
NELLO, MURRAY, WILLIAMS, NORRIS, D'URSO -- Multi-Sponsored by -- M. of
A. McLAUGHLIN -- 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 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.
§ 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.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD13119-01-7
A. 8633 2
(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.
§ 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.
§ 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
A. 8633 3
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.
§ 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.]
§ 6. Section 10.11 of the mental hygiene law is REPEALED.
§ 7. This act shall take effect on the thirtieth day after it shall
have become a law.