THE PROVISION OF THE MENTAL HYGIENE LAW WHICH ALLOWS TEMPORARY CONFINEMENT OF SEX OFFENDERS WITHOUT THE OFFENDER’S PARTICIPATION AT THE PROBABLE CAUSE STAGE IS CONSTITUTIONAL (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Singas, affirming the Appellate Division, over a two-judge dissenting opinion, determined the procedure under the Mental Hygiene Law which allows the temporary confinement of sex offenders without the offender’s participation at the probable cause stage is constitutional:

This appeal requires us to examine whether certain provisions of Mental Hygiene Law § 10.11 (d) (4) satisfy procedural due process. Those provisions govern the procedure for the temporary confinement of sex offenders adjudicated to have “mental abnormalities”—but released from confinement to strict and intensive supervision and treatment (SIST)—pending a final SIST revocation hearing. * * *

This appeal concerns the initial step in the process for revoking SIST. “If a parole officer has reasonable cause to believe that” a respondent has violated a SIST condition, or if an “evaluation or report by a treating professional indicat[es] that the person may be a dangerous sex offender requiring confinement,” a parole officer may take the violator into custody and transport them to a facility for a psychiatric evaluation, which must take place within five days … . Once the violator is taken into custody, DOCCS must “promptly” notify the Attorney General and the Mental Hygiene Legal Service (MHLS), which provides legal representation to article 10 respondents … . The Attorney General may then petition for confinement or a petition to modify the conditions within five days …  The petition must “be served promptly on the respondent and [MHLS],” and the court must appoint legal counsel to represent the respondent and provide counsel with a copy of the psychiatric evaluation … . If the Attorney General files a petition seeking confinement,

“then the court shall promptly review the petition and, based on the allegations in the petition and any accompanying papers, determine whether there is probable cause to believe that the respondent is a dangerous sex offender requiring confinement. Upon the finding of probable cause, the respondent may be retained in a local correctional facility or a secure treatment facility pending the conclusion of the proceeding” … .

* * * “The respondent shall not be released pending the completion of the hearing” … . People ex rel. Neville v Toulon, 2024 NY Slip Op 05178, CtApp 10-22-24

Practice Point: The provision of the Mental Hygiene Law which allows temporary confinement of sex offenders without the offender’s participation at the probable cause stage is constitutional.