10.03 - Definitions.

§ 10.03 Definitions.    As  used in this article, the following terms shall have the following  meanings:    (a) "Agency with jurisdiction" as to a person means that agency which,  during the period in question,  would  be  the  agency  responsible  for  supervising  or releasing such person, and can include the department of  correctional services, the office  of  mental  health,  the  office  for  people with developmental disabilities, and the division of parole.    (b)  "Commissioner"  means  the  commissioner  of mental health or the  commissioner of developmental disabilities.    (c) "Correctional facility" means a correctional facility as that term  is defined in section two of the correction law.    (d) "Counsel for respondent" means any counsel that has been  retained  or appointed for respondent, or if no other counsel has been retained or  appointed,  or  prior counsel cannot be located with reasonable efforts,  then the mental hygiene legal service.    (e) "Dangerous sex offender requiring confinement" means a person  who  is a detained sex offender suffering from a mental abnormality involving  such  a  strong  predisposition  to  commit  sex  offenses,  and such an  inability to control behavior, that the person is likely to be a  danger  to  others  and  to  commit  sex  offenses  if  not confined to a secure  treatment facility.    * (f) "Designated felony" means any felony offense defined by  any  of  the  following provisions of the penal law: assault in the second degree  as defined in section 120.05, assault in the first degree as defined  in  section  120.10, gang assault in the second degree as defined in section  120.06, gang assault in the first degree as defined in  section  120.07,  stalking  in the first degree as defined in section 120.60, manslaughter  in the second degree as defined in subdivision one  of  section  125.15,  manslaughter in the first degree as defined in section 125.20, murder in  the  second  degree  as  defined in section 125.25, aggravated murder as  defined in section 125.26, murder in the  first  degree  as  defined  in  section  125.27,  kidnapping  in the second degree as defined in section  135.20, kidnapping in the first degree as  defined  in  section  135.25,  burglary  in  the third degree as defined in section 140.20, burglary in  the second degree as defined in section 140.25, burglary  in  the  first  degree  as  defined  in  section  140.30,  arson in the second degree as  defined in section 150.15, arson in  the  first  degree  as  defined  in  section  150.20,  robbery  in  the  third  degree  as defined in section  160.05, robbery in the second  degree  as  defined  in  section  160.10,  robbery  in  the  first  degree  as defined in section 160.15, promoting  prostitution  in  the  second  degree  as  defined  in  section  230.30,  promoting prostitution in the first degree as defined in section 230.32,  compelling  prostitution  as  defined  in  section 230.33, disseminating  indecent material to minors in the first degree as  defined  in  section  235.22,  use  of  a  child in a sexual performance as defined in section  263.05, promoting an obscene sexual performance by a child as defined in  section 263.10, promoting a sexual performance by a child as defined  in  section 263.15, or any felony attempt or conspiracy to commit any of the  foregoing offenses.    * NB Effective until November 11, 2010    * (f)  "Designated  felony" means any felony offense defined by any of  the following provisions of the penal law: assault in the second  degree  as  defined in section 120.05, assault in the first degree as defined in  section 120.10, gang assault in the second degree as defined in  section  120.06,  gang  assault in the first degree as defined in section 120.07,  stalking in the first degree as defined in section 120.60, strangulation  in the second degree as defined in section 121.12, strangulation in  thefirst  degree  as  defined in section 121.13, manslaughter in the second  degree as defined in subdivision one of section 125.15, manslaughter  in  the  first  degree  as  defined  in section 125.20, murder in the second  degree  as  defined  in  section 125.25, aggravated murder as defined in  section 125.26, murder in the first degree as defined in section 125.27,  kidnapping in the second degree as defined in section 135.20, kidnapping  in the first degree as defined in section 135.25, burglary in the  third  degree  as  defined  in section 140.20, burglary in the second degree as  defined in section 140.25, burglary in the first degree  as  defined  in  section 140.30, arson in the second degree as defined in section 150.15,  arson  in  the first degree as defined in section 150.20, robbery in the  third degree as defined in section 160.05, robbery in the second  degree  as  defined in section 160.10, robbery in the first degree as defined in  section 160.15, promoting prostitution in the second degree  as  defined  in section 230.30, promoting prostitution in the first degree as defined  in section 230.32, compelling prostitution as defined in section 230.33,  disseminating indecent material to minors in the first degree as defined  in  section 235.22, use of a child in a sexual performance as defined in  section 263.05, promoting an obscene sexual performance by  a  child  as  defined  in section 263.10, promoting a sexual performance by a child as  defined in section 263.15, or any felony attempt or conspiracy to commit  any of the foregoing offenses.    * NB Effective November 11, 2010    (g) "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 or designated felony, in  that  the  person  is  either:    (1)  A  person  who  stands  convicted  of a sex offense as defined in  subdivision (p) of this section, and is  currently  serving  a  sentence  for,  or  subject  to  supervision by the division of parole, whether on  parole or on post-release supervision, for such offense or for a related  offense;    (2) A person charged with a sex offense who has been determined to  be  an  incapacitated  person  with  respect  to  that  offense and has been  committed pursuant to article  seven  hundred  thirty  of  the  criminal  procedure law, but did engage in the conduct constituting such offense;    (3)  A  person  charged  with  a  sex  offense  who has been found not  responsible by reason of mental disease or defect for the commission  of  that offense;    (4)  A  person  who  stands  convicted of a designated felony that was  sexually motivated and committed prior to the  effective  date  of  this  article;    (5)  A  person  convicted  of a sex offense who is, or was at any time  after September first, two  thousand  five,  a  patient  in  a  hospital  operated  by  the office of mental health, and who was admitted directly  to such facility pursuant to article nine of this title or section  four  hundred  two  of  the correction law upon release or conditional release  from a correctional facility,  provided  that  the  provisions  of  this  article  shall  not  be deemed to shorten or lengthen the time for which  such  person  may  be  held  pursuant  to  such   article   or   section  respectively; or    (6)  A  person  who has been determined to be a sex offender requiring  civil management pursuant to this article.    (h) "Licensed psychologist" means a person  who  is  registered  as  a  psychologist under article one hundred fifty-three of the education law.    (i)  "Mental  abnormality"  means  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  or  her  to  thecommission  of  conduct  constituting  a sex offense and that results in  that person having serious difficulty in controlling such conduct.    (j)  "Psychiatric  examiner"  means  a  qualified  psychiatrist  or  a  licensed psychologist who  has  been  designated  to  examine  a  person  pursuant  to  this  article;  such  designee  may,  but  need not, be an  employee of the office of mental health or the office  for  people  with  developmental disabilities.    (k)  "Qualified  psychiatrist"  means a physician licensed to practice  medicine in New York state who: (1) is a diplomate of the American board  of psychiatry and neurology or is  eligible  to  be  certified  by  that  board;  or  (2)  is  certified  by  the  American  osteopathic  board of  neurology and psychiatry or is eligible to be certified by that board.    (l) "Related offenses" include any offenses  that  are  prosecuted  as  part of the same criminal action or proceeding, or which are part of the  same  criminal  transaction,  or  which  are  the bases of the orders of  commitment received  by  the  department  of  correctional  services  in  connection with an inmate's current term of incarceration.    (m)  "Release"  and  "released"  means release, conditional release or  discharge from confinement, from supervision by the division of  parole,  or from an order of observation, commitment, recommitment or retention.    (n)  "Respondent"  means  a  person referred to a case review team for  evaluation, a person as to whom a sex offender civil management petition  has been recommended by a case review team and not yet filed,  or  filed  by  the  attorney  general and not dismissed, or sustained by procedures  under this article.    (o) "Secure treatment facility" means a facility or  a  portion  of  a  facility,  designated  by  the commissioner, that may include a facility  located on the grounds of a correctional facility, that is staffed  with  personnel from the office of mental health or the office for people with  developmental  disabilities  for  the  purposes  of  providing  care and  treatment to persons confined under this article, and persons defined in  paragraph five of subdivision (g) of this section. Personnel from  these  same  agencies  may  provide security services, provided that such staff  are adequately trained  in  security  methods  and  so  equipped  as  to  minimize the risk or danger of escape.    (p)  "Sex  offense"  means an act or acts constituting: (1) any felony  defined in article one hundred thirty of  the  penal  law,  including  a  sexually  motivated  felony;  (2)  patronizing a prostitute in the first  degree as defined in section 230.06 of the  penal  law,  incest  in  the  second  degree  as defined in section 255.26 of the penal law, or incest  in the first degree as defined in section 255.27 of the penal law; (3) a  felony attempt or conspiracy to commit any of the foregoing offenses set  forth in this subdivision; or (4) a designated  felony,  as  defined  in  subdivision  (f)  of  this  section, if sexually motivated and committed  prior to the effective date of this article.    (q) "Sex offender requiring civil management"  means  a  detained  sex  offender who suffers from a mental abnormality. A sex offender requiring  civil  management  can,  as  determined  by procedures set forth in this  article, be either (1) a dangerous sex offender requiring confinement or  (2) a sex offender requiring strict and intensive supervision.    (r) "Sex offender requiring strict and intensive supervision" means  a  detained sex offender who suffers from a mental abnormality but is not a  dangerous sex offender requiring confinement.    (s)  "Sexually  motivated"  means  that the act or acts constituting a  designated felony were committed in whole or in substantial part for the  purpose of direct sexual gratification of the actor.