S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  3403

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            January 27, 2009
                               ___________

Introduced  by  M.  of A. PERRY, SPANO -- Multi-Sponsored by -- M. of A.
  ALFANO, BARRA,  BOYLAND,  CLARK,  COLTON,  EDDINGTON,  FIELDS,  GALEF,
  GUNTHER,  JAFFEE,  JOHN,  KOON,  LATIMER,  LAVINE, LUPARDO, MAYERSOHN,
  MENG, PERALTA, PHEFFER, P. RIVERA, SCHROEDER, SWEENEY,  TITUS,  WRIGHT
  -- read once and referred to the Committee on Correction

AN  ACT to amend the correction law, in relation to tracking certain sex
  offenders with a global positioning system

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Subdivision  3 of section 168-d of the correction law, as
amended by chapter 11 of the  laws  of  2002,  is  amended  to  read  as
follows:
  3.  For sex offenders released on probation or discharged upon payment
of a fine, conditional discharge or unconditional discharge, it shall be
the duty of the court applying the guidelines established in subdivision
five of section one hundred sixty-eight-l of this article  to  determine
the  level  of  notification  pursuant to subdivision six of section one
hundred sixty-eight-l of this article [and]; whether such  sex  offender
shall  be  designated  a  sexual predator, sexually violent offender, or
predicate sex offender as defined in subdivision seven  of  section  one
hundred  sixty-eight-a  of  this  article; AND, IF SUCH SEX OFFENDER HAS
BEEN CONVICTED OF AN OFFENSE INVOLVING A CHILD AND  DESIGNATED  A  LEVEL
THREE  OFFENDER  AND  A  SEXUAL  PREDATOR OR PREDICATE SEX OFFENDER, THE
PERIOD OF TIME SUCH SEX OFFENDER  SHALL  SUBMIT  TO  GLOBAL  POSITIONING
SYSTEM  MONITORING  AS  PROVIDED  IN  SUBDIVISION THREE-A OF SECTION ONE
HUNDRED SIXTY-EIGHT-F OF THIS ARTICLE.  At least fifteen days  prior  to
the determination proceeding, the district attorney shall provide to the
court  and the sex offender a written statement setting forth the deter-
minations sought by the district attorney together with the reasons  for
seeking  such  determinations. The court shall allow the sex offender to
appear and be heard. The state shall appear by the district attorney, or

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD02104-01-9
              

A. 3403                             2

his or her designee, who shall bear the  burden  of  proving  the  facts
supporting  the  determinations sought by clear and convincing evidence.
Where there is a dispute between the  parties  concerning  the  determi-
nations,  the court shall adjourn the hearing as necessary to permit the
sex offender or the district attorney to obtain  materials  relevant  to
the  determinations from any state or local facility, hospital, institu-
tion, office, agency, department or  division.  Such  materials  may  be
obtained  by  subpoena  if  not  voluntarily  provided to the requesting
party. In making the determinations, the court shall review any victim's
statement and any relevant materials and evidence submitted by  the  sex
offender  and  the district attorney and the court may consider reliable
hearsay evidence submitted by either party provided that it is  relevant
to  the  determinations. Facts previously proven at trial or elicited at
the time of entry of a plea of guilty shall  be  deemed  established  by
clear  and  convincing  evidence and shall not be relitigated. The court
shall render an order setting forth its determinations and the  findings
of  fact and conclusions of law on which the determinations are based. A
copy of the order shall be submitted by the court to the division.  Upon
application  of  either  party,  the court shall seal any portion of the
court file or record which contains material that is confidential  under
any  state  or federal statute. Either party may appeal as of right from
the order pursuant to the provisions of articles  fifty-five,  fifty-six
and  fifty-seven  of the civil practice law and rules. Where counsel has
been assigned to represent the sex offender upon the ground that the sex
offender is financially unable to retain counsel, that assignment  shall
be  continued  throughout the pendency of the appeal, and the person may
appeal as a poor person pursuant to article  eighteen-B  of  the  county
law.
  S  2.  Section  168-f of the correction law is amended by adding a new
subdivision 3-a to read as follows:
  3-A. THE PROVISIONS OF  SUBDIVISION  TWO  OF  THIS  SECTION  SHALL  BE
APPLIED TO A SEX OFFENDER REQUIRED TO REGISTER UNDER THIS ARTICLE EXCEPT
THAT A SEX OFFENDER CONVICTED OF AN OFFENSE INVOLVING A CHILD AND DESIG-
NATED  A  LEVEL  THREE  OFFENDER  AND A SEXUAL PREDATOR OR PREDICATE SEX
OFFENDER, MUST ALSO BE FITTED WITH A GLOBAL POSITIONING  SYSTEM  MONITOR
IMMEDIATELY  UPON  RELEASE  OR  COMMENCEMENT  OF  PAROLE OR POST-RELEASE
SUPERVISION, OR PROBATION, OR RELEASE ON PAYMENT OF A FINE,  CONDITIONAL
DISCHARGE  OR  UNCONDITIONAL  DISCHARGE.  SUCH GLOBAL POSITIONING DEVICE
SHALL BE PROGRAMMED TO SEND FORTH AN ALARM WHEN SUCH SEX OFFENDER LEAVES
A CERTAIN JURISDICTION OR ENTERS A FORBIDDEN AREA. THE  PERIOD  OF  SUCH
MONITORING  FOR  SUCH  SEX OFFENDER SHALL BE DETERMINED BY THE COURT, AS
PROVIDED IN SUBDIVISION THREE OF SECTION ONE  HUNDRED  SIXTY-EIGHT-D  OF
THIS  ARTICLE.  THE DIVISION SHALL ANNUALLY EVALUATE SUCH SEX OFFENDER'S
FINANCIAL ABILITY TO OFFSET THE COST OF ADMINISTERING THE  GLOBAL  POSI-
TIONING  SYSTEM  AND LEVY SUCH ASSESSMENT UPON SUCH OFFENDER. FAILURE TO
PAY SUCH ASSESSMENT SHALL RESULT IN  A  FINANCIAL  HARDSHIP  HEARING  AS
PROVIDED  IN  SECTION  420.40  OF  THE  CRIMINAL PROCEDURE LAW. SUCH SEX
OFFENDER SHALL HAVE THE RIGHT TO PETITION FOR RELIEF OR MODIFICATION  OF
SUCH  DUTY  TO  WEAR  A GLOBAL POSITIONING SYSTEM MONITOR AS PROVIDED IN
SUBDIVISION TWO-A OF SECTION ONE HUNDRED SIXTY-EIGHT-O OF THIS  ARTICLE.
THE  DUTY TO WEAR A GLOBAL POSITIONING SYSTEM MONITOR SHALL BE TEMPORAR-
ILY SUSPENDED DURING ANY PERIOD IN WHICH SUCH SEX OFFENDER  IS  CONFINED
TO ANY STATE OR LOCAL CORRECTIONAL FACILITY, HOSPITAL OR INSTITUTION AND
SHALL IMMEDIATELY RECOMMENCE ON THE DATE OF SUCH SEX OFFENDER'S RELEASE.
  S  3.  Section  168-o of the correction law is amended by adding a new
subdivision 2-a to read as follows:

A. 3403                             3

  2-A. ANY SEX OFFENDER REQUIRED TO WEAR  A  GLOBAL  POSITIONING  SYSTEM
MONITOR  PURSUANT  TO  THIS ARTICLE MAY PETITION THE SENTENCING COURT OR
THE COURT WHICH MADE THE DETERMINATION REGARDING SUCH MONITORING FOR  AN
ORDER  MODIFYING  OR  TERMINATING THE MONITORING PORTION OF THE DETERMI-
NATION. THE PETITION SHALL SET FORTH THE REASONS SUPPORTING SUCH MODIFI-
CATION OR TERMINATION. THE SEX OFFENDER SHALL BEAR THE BURDEN OF PROVING
THE  FACTS SUPPORTING THE REQUESTED MODIFICATION OR TERMINATION BY CLEAR
AND CONVINCING EVIDENCE. SUCH A PETITION SHALL NOT  BE  CONSIDERED  MORE
THAN  ANNUALLY.  IN THE EVENT THAT THE SEX OFFENDER'S PETITION TO MODIFY
THE LEVEL OF NOTIFICATION IS GRANTED, THE DISTRICT ATTORNEY  MAY  APPEAL
AS  OF  RIGHT  FROM  THE  ORDER  PURSUANT  TO THE PROVISIONS OF ARTICLES
FIFTY-FIVE, FIFTY-SIX AND FIFTY-SEVEN OF  THE  CIVIL  PRACTICE  LAW  AND
RULES.  WHERE  COUNSEL  HAS  BEEN ASSIGNED TO REPRESENT THE SEX OFFENDER
UPON THE GROUND THAT THE SEX OFFENDER IS FINANCIALLY  UNABLE  TO  RETAIN
COUNSEL,  THAT  ASSIGNMENT SHALL BE CONTINUED THROUGHOUT THE PENDENCY OF
THE APPEAL, AND THE PERSON MAY APPEAL AS A POOR PERSON PURSUANT TO ARTI-
CLE EIGHTEEN-B OF THE COUNTY LAW.
  S 4. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.