N.Y. Mental Hyg. Law § 10.07

§ 10.07 Trial.\n (a) Within sixty days after the court determines, pursuant to\nsubdivision (k) of section 10.06 of this article, that there is probable\ncause to believe that the respondent is a sex offender requiring civil\nmanagement, the court shall conduct a jury trial to determine whether\nthe respondent is a detained sex offender who suffers from a mental\nabnormality. The trial shall be held before the same court that\nconducted the probable cause hearing unless either the attorney general\nor counsel for the respondent has moved for a change of venue and the\nmotion has been granted by the court.\n (b) The provisions of article forty-one of the civil practice law and\nrules shall apply to the formation and conduct of jury trial under this\nsection, except that the provisions of the following sections of the\ncriminal procedure law shall govern to the extent that the provisions of\narticle forty-one of the civil practice law and rules are inconsistent\ntherewith: sections 270.05, 270.10, 270.15, 270.20, subdivision one of\nsection 270.25, and subdivision one of section 270.35 (except for the\nprovisions thereof requiring consent for the replacement of a discharged\njuror with an alternate). Each side shall have ten peremptory challenges\nfor the regular jurors and two for each alternate juror to be selected.\nThe right to a trial by jury may be waived by the respondent, and upon\nsuch waiver, the court shall conduct a trial in accordance with article\nforty-two of the civil practice law and rules, excluding provisions for\ndecision-making by referees.\n (c) The provisions of subdivision (g) of section 10.08 of this article\nand article forty-five of the civil practice law and rules shall be\napplicable to trials conducted pursuant to this section. The jury may\nhear evidence of the degree to which the respondent cooperated with the\npsychiatric examination. If the court finds that the respondent refused\nto submit to a psychiatric examination pursuant to this article, upon\nrequest it shall so instruct the jury. The respondent's commission of a\nsex offense shall be deemed established and shall not be relitigated at\nthe trial, whenever it is shown that: (i) the respondent stands\nconvicted of such offense; or (ii) the respondent previously has been\nfound not responsible by reason of mental disease or defect for the\ncommission of such offense or for an act or acts constituting such\noffense. Whenever the petition alleges the respondent's commission of a\ndesignated felony prior to the effective date of this article, the issue\nof whether such offense was sexually motivated shall be determined by\nthe jury.\n (d) The jury, or the court if a jury trial is waived, shall determine\nby clear and convincing evidence whether the respondent is a detained\nsex offender who suffers from a mental abnormality. The burden of proof\nshall be on the attorney general. A determination, if made by the jury,\nmust be by unanimous verdict. In charging the jury, the court's\ninstructions shall include the admonishment that the jury may not find\nsolely on the basis of the respondent's commission of a sex offense that\nthe respondent is a detained sex offender who suffers from a mental\nabnormality. In the case of a respondent committed pursuant to article\nseven hundred thirty of the criminal procedure law for a sex offense,\nthe attorney general shall have the burden of proving by clear and\nconvincing evidence that the respondent did engage in the conduct\nconstituting such offense.\n (e) If the jury unanimously, or the court if a jury trial is waived,\ndetermines that the attorney general has not sustained his or her burden\nof establishing that the respondent is a detained sex offender who\nsuffers from a mental abnormality, the court shall dismiss the petition\nand the respondent shall be released if and as warranted by other\nprovisions of law. If the jury is unable to render a unanimous verdict,\nthe court shall continue any commitment order previously issued and\nschedule a second trial to be held within sixty days in accordance with\nthe provisions of subdivision (a) of this section. If the jury in such\nsecond trial is unable to render a unanimous verdict as to whether the\nrespondent is a detained sex offender who suffers from a mental\nabnormality, the court shall dismiss the petition.\n (f) If the jury, or the court if a jury trial is waived, determines\nthat the respondent is a detained sex offender who suffers from a mental\nabnormality, then the court shall consider whether the respondent is a\ndangerous sex offender requiring confinement or a sex offender requiring\nstrict and intensive supervision. The parties may offer additional\nevidence, and the court shall hear argument, as to that issue. If the\ncourt finds by clear and convincing evidence that the respondent has a\nmental abnormality involving such a strong predisposition to commit sex\noffenses, and such an inability to control behavior, that the respondent\nis likely to be a danger to others and to commit sex offenses if not\nconfined to a secure treatment facility, then the court shall find the\nrespondent to be a dangerous sex offender requiring confinement. In such\ncase, the respondent shall be committed to a secure treatment facility\nfor care, treatment, and control until such time as he or she no longer\nrequires confinement. If the court does not find that the respondent is\na dangerous sex offender requiring confinement, then the court shall\nmake a finding of disposition that the respondent is a sex offender\nrequiring strict and intensive supervision, and the respondent shall be\nsubject to a regimen of strict and intensive supervision and treatment\nin accordance with section 10.11 of this article. In making a finding of\ndisposition, the court shall consider the conditions that would be\nimposed upon the respondent if subject to a regimen of strict and\nintensive supervision, and all available information about the prospects\nfor the respondent's possible re-entry into the community.\n