S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   4997
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 6, 2019
                                ___________
 
 Introduced  by  M. of A. RAIA, BARCLAY, CROUCH, GIGLIO, McDONOUGH, MORI-
   NELLO, WILLIAMS,  NORRIS,  D'URSO,  MONTESANO,  LAWRENCE,  PALUMBO  --
   Multi-Sponsored by -- M.  of A. PALMESANO -- 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.
                                                            LBD07969-01-9
              

 A. 4997                             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. 4997                             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.