§ 10.09 Annual examinations and petitions for discharge.

(a) The commissioner shall provide the respondent and counsel for
respondent with an annual written notice of the right to petition the
court for discharge. The notice shall contain a form for the waiver of
the right to petition for discharge.

(b) The commissioner shall also assure that each respondent committed
under this article shall have an examination for evaluation of his or
her mental condition made at least once every year (calculated from the
date on which the supreme or county court judge last ordered or
confirmed the need for continued confinement pursuant to this article or
the date on which the respondent waived the right to petition for
discharge pursuant to this section, whichever is later, as applicable)
conducted by a psychiatric examiner who shall report to the commissioner
his or her written findings as to whether the respondent is currently a
dangerous sex offender requiring confinement. At such time, the
respondent also shall have the right to be evaluated by an independent
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 such
evaluation, each psychiatric examiner shall report his or her findings
in writing to the commissioner and to counsel for respondent. The
commissioner shall review relevant records and reports, along with the
findings of the psychiatric examiners, and shall make a determination in
writing as to whether the respondent is currently a dangerous sex
offender requiring confinement.

(c) The commissioner shall annually forward the notice and waiver
form, along with a report including the commissioner's written
determination and the findings of the psychiatric examination, to the
supreme or county court where the respondent is located.

(d) The court shall hold an evidentiary hearing as to retention of the
respondent within forty-five days if it appears from one of the annual
submissions to the court under subdivision (c) of this section (i) that
the respondent has petitioned, or has not affirmatively waived the right
to petition, for discharge, or (ii) that even if the respondent has
waived the right to petition, and the commissioner has determined that
the respondent remains a dangerous sex offender requiring confinement,
the court finds on the basis of the materials described in subdivision
(b) of this section that there is a substantial issue as to whether the
respondent remains a dangerous sex offender requiring confinement. At an
evidentiary hearing on that issue under this subdivision, the attorney
general shall have the burden of proof.

(e) If, at any time, the commissioner determines that the respondent
no longer is a dangerous sex offender requiring confinement, the
commissioner 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
subdivisions (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
subdivision, the attorney general shall have the burden of proof as to
whether the respondent is currently a dangerous sex offender requiring
confinement.

(g) In connection with any evidentiary hearing held pursuant to
subdivision (d), (e), or (f) of this section, upon the request of either
party or upon its own motion, the court may direct the submission of
evidence, and may order a psychiatric evaluation if the court finds that
any available examination reports are not current or otherwise not
sufficient.

(h) At the conclusion of an evidentiary hearing, if the court finds by
clear and convincing evidence that the respondent is currently a
dangerous 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.