N.Y. Mental Hyg. Law § 10.09

§ 10.09 Annual examinations and petitions for discharge.\n (a) The commissioner shall provide the respondent and counsel for\nrespondent with an annual written notice of the right to petition the\ncourt for discharge. The notice shall contain a form for the waiver of\nthe right to petition for discharge.\n (b) The commissioner shall also assure that each respondent committed\nunder this article shall have an examination for evaluation of his or\nher mental condition made at least once every year (calculated from the\ndate on which the supreme or county court judge last ordered or\nconfirmed the need for continued confinement pursuant to this article or\nthe date on which the respondent waived the right to petition for\ndischarge pursuant to this section, whichever is later, as applicable)\nconducted by a psychiatric examiner who shall report to the commissioner\nhis or her written findings as to whether the respondent is currently a\ndangerous sex offender requiring confinement. At such time, the\nrespondent also shall have the right to be evaluated by an independent\npsychiatric examiner. If the respondent is financially unable to obtain\nan examiner, the court shall appoint an examiner of the respondent's\nchoice to be paid within the limits prescribed by law. Following such\nevaluation, each psychiatric examiner shall report his or her findings\nin writing to the commissioner and to counsel for respondent. The\ncommissioner shall review relevant records and reports, along with the\nfindings of the psychiatric examiners, and shall make a determination in\nwriting as to whether the respondent is currently a dangerous sex\noffender requiring confinement.\n (c) The commissioner shall annually forward the notice and waiver\nform, along with a report including the commissioner's written\ndetermination and the findings of the psychiatric examination, to the\nsupreme or county court where the respondent is located.\n (d) The court shall hold an evidentiary hearing as to retention of the\nrespondent within forty-five days if it appears from one of the annual\nsubmissions to the court under subdivision (c) of this section (i) that\nthe respondent has petitioned, or has not affirmatively waived the right\nto petition, for discharge, or (ii) that even if the respondent has\nwaived the right to petition, and the commissioner has determined that\nthe respondent remains a dangerous sex offender requiring confinement,\nthe court finds on the basis of the materials described in subdivision\n(b) of this section that there is a substantial issue as to whether the\nrespondent remains a dangerous sex offender requiring confinement. At an\nevidentiary hearing on that issue under this subdivision, the attorney\ngeneral shall have the burden of proof.\n (e) If, at any time, the commissioner determines that the respondent\nno longer is a dangerous sex offender requiring confinement, the\ncommissioner shall petition the court for discharge of the respondent or\nfor the imposition of a regimen of strict and intensive supervision and\ntreatment. The petition shall be served upon the attorney general and\nthe respondent, and filed in the supreme or county court where the\nperson is located. The court, upon review of the petition, shall either\norder the requested relief or order that an evidentiary hearing be held.\n (f) The respondent may at any time petition the court for discharge\nand/or release to the community under a regimen of strict and intensive\nsupervision and treatment. Upon review of the respondent's petition,\nother than in connection with annual reviews as described in\nsubdivisions (a), (b) and (d) of this section, the court may order that\nan evidentiary hearing be held, or may deny an evidentiary hearing and\ndeny the petition upon a finding that the petition is frivolous or does\nnot provide sufficient basis for reexamination prior to the next annual\nreview. If the court orders an evidentiary hearing under this\nsubdivision, the attorney general shall have the burden of proof as to\nwhether the respondent is currently a dangerous sex offender requiring\nconfinement.\n (g) In connection with any evidentiary hearing held pursuant to\nsubdivision (d), (e), or (f) of this section, upon the request of either\nparty or upon its own motion, the court may direct the submission of\nevidence, and may order a psychiatric evaluation if the court finds that\nany available examination reports are not current or otherwise not\nsufficient.\n (h) At the conclusion of an evidentiary hearing, if the court finds by\nclear and convincing evidence that the respondent is currently a\ndangerous sex offender requiring confinement, the court shall continue\nthe respondent's confinement. Otherwise the court, unless it finds that\nthe respondent no longer suffers from a mental abnormality, shall issue\nan order providing for the discharge of the respondent to a regimen of\nstrict and intensive supervision and treatment pursuant to section 10.11\nof this article.\n