S T A T E   O F   N E W   Y O R K
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                                  7678

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                              May 12, 2011
                               ___________

Introduced  by  M.  of  A.  SALADINO,  MONTESANO, RAIA, RA, N. RIVERA --
  Multi-Sponsored by -- M.  of A. BURLING, GRAF, McDONOUGH -- 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 and subdivision 9-a of  section  259-a  of  the
  executive 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.
  S 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.
                                                           LBD09029-01-1

              

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  (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.
  S  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.
  S 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

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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.
  S  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.]
  S 6. Section 10.11 of the mental hygiene law is REPEALED.
  S  7.  Subdivision  9-a  of  section  259-a  of  the  executive law is
REPEALED.
  S 8. This act shall take effect on the thirtieth day  after  it  shall
have become a law.