N.Y. Mental Hygiene Law 10.05 – Notice and case review
§ 10.05 Notice and case review.
Terms Used In N.Y. Mental Hygiene Law 10.05
- Commissioner: means the commissioner of mental health or the commissioner of developmental disabilities. See N.Y. Mental Hygiene Law 10.03
- Designated felony: means any felony offense defined by any of the following provisions of the penal law: assault in the second degree as defined in section 120. See N.Y. Mental Hygiene Law 10.03
- Detained sex offender: means a person who is in the care, custody, control, or supervision of an agency with jurisdiction, with respect to a sex offense or designated felony, in that the person is either:
(1) A person who stands convicted of a sex offense as defined in subdivision (p) of this section, and is currently serving a sentence for, or subject to supervision by the division of parole, whether on parole or on post-release supervision, for such offense or for a related offense;
(2) A person charged with a sex offense who has been determined to be an incapacitated person with respect to that offense and has been committed pursuant to Article seven hundred thirty of the criminal procedure law, but did engage in the conduct constituting such offense;
(3) A person charged with a sex offense who has been found not responsible by reason of mental disease or defect for the commission of that offense;
(4) A person who stands convicted of a designated felony that was sexually motivated and committed prior to the effective date of this article;
(5) A person convicted of a sex offense who is, or was at any time after September first, two thousand five, a patient in a hospital operated by the office of mental health, and who was admitted directly to such facility pursuant to article nine of this title or § 402 of the correction law upon release or conditional release from a correctional facility, provided that the provisions of this article shall not be deemed to shorten or lengthen the time for which such person may be held pursuant to such article or section respectively; or
(6) A person who has been determined to be a sex offender requiring civil management pursuant to this article. See N.Y. Mental Hygiene Law 10.03 - Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- Mental abnormality: means a congenital or acquired condition, disease or disorder that affects the emotional, cognitive, or volitional capacity of a person in a manner that predisposes him or her to the commission of conduct constituting a sex offense and that results in that person having serious difficulty in controlling such conduct. See N.Y. Mental Hygiene Law 10.03
- Psychiatric examiner: means a qualified psychiatrist or a licensed psychologist who has been designated to examine a person pursuant to this article; such designee may, but need not, be an employee of the office of mental health or the office for people with developmental disabilities. See N.Y. Mental Hygiene Law 10.03
- Respondent: means a person referred to a case review team for evaluation, a person as to whom a sex offender civil management petition has been recommended by a case review team and not yet filed, or filed by the attorney general and not dismissed, or sustained by procedures under this article. See N.Y. Mental Hygiene Law 10.03
- Sex offender requiring civil management: means a detained sex offender who suffers from a mental abnormality. See N.Y. Mental Hygiene Law 10.03
- Sex offense: means an act or acts constituting: (1) any felony defined in Article one hundred thirty of the penal law, including a sexually motivated felony; (2) patronizing a person for prostitution in the first degree as defined in § 230. See N.Y. Mental Hygiene Law 10.03
- 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. See N.Y. Mental Hygiene Law 10.03
(a) The commissioner of mental health, in consultation with the commissioner of the department of corrections and community supervision and the commissioner of developmental disabilities, shall establish a case review panel consisting of at least fifteen members, any three of whom may sit as a team to review a particular case. At least two members of each team shall be professionals in the field of mental health or the field of developmental disabilities, as appropriate, with experience in the treatment, diagnosis, risk assessment or management of sex offenders. To the extent practicable, the workload of the case review panel should be evenly distributed among its members. Members of the case review panel and psychiatric examiners should be free to exercise independent professional judgment without pressure or retaliation for the exercise of that judgment from any source.
(b) When it appears to an agency with jurisdiction that a person who may be a detained sex offender is nearing an anticipated release from confinement, the agency shall give notice of that fact to the attorney general and to the commissioner of mental health. When it appears to the department of corrections and community supervision that a person who may be a detained sex offender is nearing an anticipated release from community supervision, the agency may give such notice. The agency with jurisdiction shall seek to give such notice at least one hundred twenty days prior to the person's anticipated release, but failure to give notice within such time period shall not affect the validity of such notice or any subsequent action, including the filing of a sex offender civil management petition.
(c) The notice to the attorney general and the commissioner of mental health shall, to the extent possible, contain the following:
(1) The person's name, aliases, and other identifying information such as date of birth, sex, physical characteristics, and anticipated future residence;
(2) A photograph and a set of fingerprints;
(3) A description of the act or acts that constitute the sex offense and a description of the person's criminal history, including the person's most recent sentence and any supervisory terms that it includes;
(4) The presentence reports prepared pursuant to Article three hundred ninety of the criminal procedure law and other available materials concerning the person's sex offense; and
(5) A description of the person's institutional history, including his or her participation in any sex offender treatment program; and
(6) Records of parole release interviews prepared pursuant to subparagraph (ii) of paragraph (a) of subdivision six of § 259-i of the executive law.
(d) The commissioner shall be authorized to designate multidisciplinary staff, including clinical and other professional personnel, to provide a preliminary review of the need for detained sex offenders to be evaluated under the procedures of this section. When the commissioner receives notice pursuant to subdivision (b) of this section, such staff shall review and assess relevant medical, clinical, criminal, and institutional records, actuarial risk assessment instruments and other records and reports, including records of parole release interviews where applicable, and records and reports provided by the district attorney of the county where the person was convicted, or in the case of persons determined to be incapacitated or not responsible by reason of mental disease or defect, the county where the person was charged. Upon such review and assessment, the staff shall determine whether the person who is the subject of the notice should be referred to a case review team for evaluation.
(e) If the person is referred to a case review team for evaluation, notice of such referral shall be provided to the respondent. Upon such referral, the case review team shall review relevant records, including those described in subdivisions (c) and (d) of this section, and may arrange for a psychiatric examination of the respondent. Based on the review and assessment of such information, the case review team shall consider whether the respondent is a sex offender requiring civil management.
(f) If the case review team determines that the respondent is not a sex offender requiring civil management, it shall so notify the respondent and the attorney general, and the attorney general shall not file a sex offender civil management petition.
(g) If the case review team finds that the respondent is a sex offender requiring civil management, it shall so notify the respondent and the attorney general, in writing. The written notice must be accompanied by a written report from a psychiatric examiner that includes a finding as to whether the respondent has a mental abnormality. Where the notice indicates that a respondent stands convicted of or was charged with a designated felony, it shall also include the case review team's finding as to whether the act was sexually motivated. The case review team shall provide its written notice to the attorney general and the respondent within forty-five days of the commissioner receiving the notice of anticipated release. However, failure to do so within that time period shall not affect the validity of such notice or finding or any subsequent action, including the attorney general's filing of a sex offender civil management petition subsequent to receiving the finding of the case review team.