§ 10.07 Trial.

(a) Within sixty days after the court determines, pursuant to
subdivision (k) of section 10.06 of this article, that there is probable
cause to believe that the respondent is a sex offender requiring civil
management, the court shall conduct a jury trial to determine whether
the respondent is a detained sex offender who suffers from a mental
abnormality. 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.

(b) The provisions of article forty-one of the civil practice law and
rules shall apply to the formation and conduct of jury trial under this
section, except that the provisions of the following sections of the
criminal procedure law shall govern to the extent that the provisions of
article forty-one of the civil practice law and rules are inconsistent
therewith: sections 270.05, 270.10, 270.15, 270.20, subdivision one of
section 270.25, and subdivision one of section 270.35 (except for the
provisions thereof requiring consent for the replacement of a discharged
juror with an alternate). 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.

(c) The provisions of subdivision (g) of section 10.08 of this article
and article forty-five of the civil practice law and rules shall be
applicable to trials conducted pursuant to this section. 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: (i) the respondent stands
convicted of such offense; or (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. 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.

(d) The jury, or the court if a jury trial is waived, shall determine
by clear and convincing evidence whether the respondent is a detained
sex offender who suffers from a mental abnormality. 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.

(e) If the jury unanimously, or the court if a jury trial is waived,
determines that the attorney general has not sustained his or her burden
of establishing that the respondent is a detained sex offender who
suffers from a mental abnormality, the court shall dismiss the petition
and the respondent shall be released if and as warranted by other
provisions of law. 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
abnormality, the court shall dismiss the petition.

(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 requiring
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
intensive supervision, and all available information about the prospects
for the respondent's possible re-entry into the community.