§ 10.06 Petition and hearing.

(a) If the case review team finds that a respondent is a sex offender
requiring civil management, then the attorney general may file a sex
offender civil management petition in the supreme court or county court
of the county where the respondent is located. 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
statements alleging facts of an evidentiary character tending to support
the allegation that the respondent is a sex offender requiring civil
management. The attorney general shall seek to file the petition within
thirty 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.

(b) Within ten days after the attorney general files a sex offender
civil management petition, the respondent may file in the same court a
notice of removal to the county of the underlying criminal sex offense
charges. 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
charges. If the respondent does not timely file a notice of removal, or
the attorney general moves for retention of venue and such motion is
granted, then the proceedings shall continue where the petition was
filed.

(c) Promptly upon the filing of a sex offender civil management
petition, or upon a request to the court by the attorney general for an
order pursuant to subdivision (d) of this section that a respondent
submit to an evaluation by a psychiatric examiner, whichever occurs
earlier, the court shall appoint counsel in any case where the
respondent is financially unable to obtain counsel. 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
appointment, 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 10.15 of this
article. 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.

(d) At any time after receiving notice pursuant to subdivision (b) of
section 10.05 of this article, and prior to trial, the attorney general
may request the court in which the sex offender civil management
petition could be filed, or is pending, to order the respondent to
submit to an evaluation by a psychiatric examiner. 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 respondent. 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.

(e) At any time after the filing of a sex offender civil management
petition, and prior to trial, the respondent may request the court in
which the petition is pending to order that he or she be evaluated by a
psychiatric examiner. 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.

(f) Notwithstanding any other provision of this article, if it appears
that the respondent may be released prior to the time the case review
team makes a determination, and the attorney general determines that the
protection of public safety so requires, the attorney general may file a
securing petition at any time after receipt of written notice pursuant
to subdivision (b) of section 10.05 of this article. In such
circumstance, there shall be no probable cause hearing until such time
as the case review team may find that the respondent is a sex offender
requiring civil management. If the case review team determines that the
respondent is not a sex offender requiring civil management, the
attorney general shall so advise the court and the securing petition
shall be dismissed.

(g) Within thirty days after the sex offender civil management
petition is filed, or within such longer period as to which the
respondent may consent, the supreme court or county court before which
the petition is pending shall conduct a hearing without a jury to
determine whether there is probable cause to believe that the respondent
is a sex offender requiring civil management.

(h) If the respondent was released subsequent to notice under
subdivision (b) of section 10.05 of this article, and is therefore at
liberty when the petition is filed, the court shall order the
respondent's return to confinement, observation, commitment,
recommitment or retention, as applicable, for purposes of 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 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: (i) the failure to commence the hearing was
due to the respondent's request, action or condition, or occurred with
his or her consent; or (ii) the court is satisfied that the attorney
general has shown good cause why the hearing could not so commence. Any
failure to commence the probable cause hearing 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.

(i) The provisions of subdivision (g) of section 10.08 of this article
shall be applicable to the hearing. The hearing should be completed in
one session but, in the interest of justice, may be adjourned by the
court.

(j) The respondent's commission of a sex offense shall be deemed
established and shall not be relitigated at the probable cause hearing,
whenever it appears that: (i) the respondent stands convicted of such
offense; (ii) the respondent previously has been found not responsible
by reason of mental disease or defect for the commission of such offense
or for an act or acts constituting such offense; or (iii) the respondent
was indicted for such offense by a grand jury but found to be
incompetent to stand trial for such offense. 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.

(k) At the conclusion of the hearing, the court shall determine
whether there is probable cause to believe that the respondent is a sex
offender requiring civil management. If the court determines that
probable 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
determines 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 corrections and community
supervision 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 this article; and (iii) the respondent shall not be
released pending the completion of such trial.

(l) (1) If a respondent who is transferred to a secure treatment
facility pursuant to subdivision (k) of this section, has not yet
reached his or her maximum expiration date on the underlying determinate
or indeterminate sentence of imprisonment, is significantly disruptive
of the treatment program at such secure treatment facility, the person
in charge of treatment programs at such facility may initiate a
proceeding to obtain an order that the respondent shall be transferred
to the custody of the department of corrections and community
supervision for such conduct.

(2) Such a proceeding shall be initiated by a written notice served
upon the respondent, and provided by mail to his or her counsel (or by
electronic mail or facsimile to a destination identified by such counsel
for such purpose). Such notice shall identify in detail the dates, times
and nature of the alleged misconduct pursuant to paragraph one of this
subdivision, the possible sanctions, and the date, time and location of
the hearing.

(3) A hearing on the allegations shall be held no less than ten days
nor more than sixty days after such notice is served on the respondent
and provided to his or her counsel. The hearing shall be conducted by
the director of the secure treatment facility, or his or her designee.
The respondent may be represented by counsel. Evidence shall be
introduced through witnesses and documents, if any, and both the person
in charge of the treatment program presenting the case and the
respondent may call and cross-examine witnesses and present documentary
evidence relevant to the question of whether the respondent has been
significantly disruptive of the treatment program. The presiding officer
may accept such evidence without applying formal state or federal rules
of evidence. The hearing shall be recorded or a stenographic record of
the proceeding shall be kept. When hearing the matter and, if the
allegations are sustained, the presiding officer shall consider the
respondent's mental health condition and its effect, if any, on his or
her conduct.

(4) At the conclusion of the hearing, if the presiding officer is
satisfied that there is a preponderance of evidence that the respondent
has been significantly disruptive of the treatment program at the secure
treatment facility, the presiding officer shall so find. In such event,
the presiding officer may order the respondent's transfer back to the
custody of the department of corrections and community supervision for a
period of up to six months, provided however, that when such respondent
reaches the maximum expiration date of his or her underlying sentence he
or she shall be returned to a secure treatment facility unless he or she
consents in writing as provided in subdivision (k) of this section to
remaining in the custody of the department of corrections and community
supervision and provided further that he or she shall be returned to a
secure treatment facility if the final order issued pursuant to
subdivision (f) of section 10.07 of this article requires placement in a
secure treatment facility.

(5) At the conclusion of the hearing, the presiding officer shall
prepare a written statement, to be made available to the respondent and
his or her counsel, indicating the evidence relied on, the reasons for
the determination and specifying the procedures and time frame for
administrative appeal to the commissioner. The determination may be
appealed to the commissioner in accordance with procedures established
in writing by the department. The respondent shall be given at least ten
days after notice of the determination has been served and the
transcript or recording of the proceeding (with appropriate access
equipment) has been provided to perfect the appeal. The respondent may
be represented by counsel on the administrative appeal.