Within 30 days after the filing of a civil management petition, the court is required to conduct a hearing without a jury to “determine whether there is probable cause to believe that the respondent is a sex crimes offender requiring civil management.” If the court finds “there is probable cause to believe that the respondent is a sex offender requiring civil management,” it must order that the respondent be committed to a secure treatment facility designated by the Office of Mental Health (hereinafter referred to as “OMH”) for care, treatment and control. The court is also required to set a date for a jury trial, to be conducted within 60 days after the probable cause determination, and “the respondent shall not be released pending the completion of such trial.”
Subsequently, if, at trial, a jury finds that the respondent is a sex offender suffering from a mental abnormality, then the court determines the appropriate disposition at a hearing. It “shall consider whether the respondent is a dangerous sex offender requiring confinement or a sex offender requiring strict and intensive supervision.” Additional evidence may be offered on that issue by both the respondent and the Attorney General.
Civil commitment to a secure treatment facility is required if the court finds, upon 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.” If the court does not so find, it must make a finding of disposition that the respondent is a sex offender requiring SIST. The determination is based on consideration of the conditions that would be imposed under SIST, and all available information about the prospects for the respondent’s reentry into the community. A weapon was not used.
On appeal, the respondent does not assert more. He argues, inter alia, that MHL § 10.06(k)’s mandatory detention provision is unconstitutional as applied to him because he belongs to that class of sex offender that may ultimately be found suitable for SIST, that the evidence before the hearing court indicated that he could be “safely” released on conditions pending trial, and thus that the Attorney General failed in sustaining its burden of proving that less restrictive alternatives would not suffice to protect the community from him. Therefore, the respondent argues, the provision offends the due process guarantees of the Federal Constitution, and violates the New York State Constitution’s guarantee that mental health patients be treated in the “least restrictive alternative setting.”
We confine our analysis to the respondent’s assertion that the statute is unconstitutional as applied to him as well as to that criminal category of Article 10 sex offender who, at disposition, may be approved for release into the community under SIST. The respondent argues that if he and others like him are found not sufficiently dangerous to warrant confinement post trial and disposition, then they are not sufficiently dangerous to warrant detention pre-trial. Thus, he asserts, the provision is not narrowly tailored to effectuate the government’s objective of protecting the public from him and those like him. We disagree.
To Be cont…