On redirect, Dr. J reiterated that he did not believe that parole supervision of O.V. would be sufficient as a protection to the community. Dr. J concluded with a reasonable degree of psychiatric certainty that O.V. does pose a danger to society.
Mental Hygiene Law article 10 provides that after a case review team, consisting of at least two mental health professionals under Mental Hygiene Law § 10.05 [a], finds that an individual is “a sex offender requiring civil management,” the Attorney General may file a sex offender civil management petition in Supreme Court. The petition must contain a statement or statements alleging facts of an evidentiary character tending to support the allegation that the respondent is a sex crimes offender requiring civil management.
After a petition is filed, the act directs that Supreme Court shall 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.
At the conclusion of the criminal hearing, if the court determines that probable cause has not been demonstrated, it must dismiss the petition and the respondent will be released. If, however, probable cause has been established: “(i) the court shall order that the respondent be committed to a secure treatment facility; (ii) the court shall set a date for trial; and, (iii) the respondent shall not be released pending the completion of such trial.
The jury, or the court if a jury trial is waived, shall determine by clear and convincing evidence whether the respondent is a detained sex offender who suffers from a mental abnormality. The burden of proof shall be on the attorney general. A determination, if made by the jury, must be by unanimous verdict. 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 requiring strict and intensive supervision. 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 with drug possession requiring confinement.
Pursuant to Mental Hygiene Law § 10.06 (k), the court must now assess whether there is probable cause to believe that O.V. is a sex offender requiring civil management and whether he should be held for trial. The court must analyze whether the State has sufficiently demonstrated that O.V. suffers from a mental abnormality and must further make findings with respect to whether O.V. “is sufficiently dangerous to require confinement and whether lesser conditions of supervision will not suffice to protect the public during the pendency of the proceedings.
The court notes that the Mental Hygiene Legal Service urges adoption of a high standard of proof. In the context of article 10 of the Mental Hygiene Law, a showing of “probable cause” should require establishing that it is “more likely than not” that an offender requires civil management.