Published on:

Penal law §§110.00 and 130.35

Respondent now moves to dismiss this action (for civil management pursuant to New York Mental Hygiene Law Section 10.06(a)), “based upon the constitutionally flawed structure of Article 10 and its flawed application to Respondent.”

A New York Sex Crime Lawyer said that, on March 14, 2007, former Governor Spitzer signed the Sex Offender Management and Treatment Act (“SOMTA”) (thereby adding Article 10 of the New York Mental Hygiene Law (“MHL”), creating a new legal mechanism to address the problem of managing repeat sexual offenders. Although New York already had a statute addressing the involuntary commitment of those determined to be “mentally ill”, the New York Legislature found that “recidivistic sex offenders pose a danger to society that should be addressed through comprehensive programs of treatment and management.” In extreme cases (i.e., those involving the most dangerous recidivistic sex offenders), the Legislature determined that confinement would be extended by civil process, in order to provide these individuals with such treatment and to protect the public from their recidivist conduct. It is beyond cavil that individuals who are mentally ill and dangerous, and predisposed to committing sexual offenses, pose serious risks to our communities. Nevertheless, in the case of confinement, due process “requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed.”

The issue in this case is whether respondent’s motion to dismiss this action (for civil management pursuant to New York Mental Hygiene Law Section 10.06(a)), “based upon the constitutionally flawed structure of Article 10 and its flawed application should be granted.
In order to identify and effectuate treatment for these individuals, the Legislature authorized the Commissioner of the Office of Mental Health (“OMH”) to designate personnel of various disciplines (including, among others, mental health professionals) to provide a preliminary review of the need for detained sex offenders to be evaluated for purposes of civil management. A “sex offender requiring civil management” is defined as a detained sex offender who suffers from a mental abnormality.

As is relevant here, “a 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, in that the person stands convicted of a sex crime offense and is currently serving a sentence for such offense or for a related offense. A “mental abnormality” is defined as 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 to the commission of conduct constituting a sex crime offense, and that results in that person having serious difficulty in controlling such conduct.

Article 10, as applied to currently confined persons such as Respondent, was designed to initiate a specific series of procedures. Pursuant to MHL §10.05(a), a case review panel must be established to determine, upon referral from an agency with jurisdiction over a particular criminal respondent, whether that individual is a sex offender requiring civil management. If the case review team determines that a respondent is a sex offender requiring civil management, it must notify the respondent and the Attorney General in writing. Based upon the case review team’s finding, the Attorney General may file a sex offender civil management petition in the Supreme Court of the County where the respondent is located.

Within thirty (30) days after the sex offender civil management petition is filed, the court must conduct a hearing without a jury to determine whether there is probable cause to believe that the respondent is a sex offender requiring civil management. Within sixty (60) days after the court determines probable cause, the court must then conduct a jury trial to determine whether the respondent is a detained sex offender who suffers from a mental abnormality. The jury (or the court if a jury trial is waived) must determine by clear and convincing evidence whether the respondent is a detained sex offender who suffers from a mental abnormality. The burden of proof is on the Attorney General, and a jury determination must be by unanimous verdict. Assault was not charged.

To Be Cont….

If you are charged with a sex crime, seek the assistance of a New York Criminal Attorney and New York Sex Crime Attorney at Stephen Bilkis and Associates.

Posted in:
Published on:
Updated:

Comments are closed.

Contact Information