NY State Senate Bill 2009-S4176

Archive: Last Bill Status - In Senate Committee Codes Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
May 26, 2010	reported and committed to codes
May 03, 2010	notice of committee consideration - requested
Jan 06, 2010	referred to mental health and developmental disabilities
Apr 15, 2009	referred to mental health and developmental disabilities

Votes

- May 26, 2010 - Committee Vote
  S4176
  
  7
  
  Aye
  
  1
  
  Nay
  
  1
  
  Aye with Reservations
  
  0
  
  Absent
  
  1
  
  Excused
  
  0
  
  Abstained
  - - Committee Vote: May 26, 2010
      
      aye (7)
      
      Breslin
      
      Duane
      
      Hannon
      
      Huntley
      
      Libous
      
      McDonald
      
      Volker
      
      nay (1)
      
      Montgomery
      
      aye wr (1)
      
      Adams
      
      excused (1)
      
      Morahan

co-Sponsors

View additional co-sponsors

2009-S4176 (ACTIVE) - Details

Current Committee:: Senate Codes
Law Section:: Mental Hygiene Law
Laws Affected:: Amd §§33.13, 29.16 & 29.17, Ment Hyg L; amd §§168-a, 168-b & 168-d, Cor L
Versions Introduced in Other Legislative Sessions:: 2011-2012: S2593
2013-2014: S1691
2015-2016: S2090

2009-S4176 (ACTIVE) - Summary

Provides for disclosure of sexual offender information related to a patient or client.

2009-S4176 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S4176

 TITLE OF BILL :

An act to amend the mental hygiene law, in relation to disclosure of
sexual offender information related to a patient or client, and to
amend the correction law, in relation to inclusion of certain persons
within the provisions of the sex offender registration act who have
had pleas accepted, or who have had verdicts entered with respect to
them, of not responsible by reason of mental disease or defect


 PURPOSE OF THE BILL :

(1) To amend the Mental Hygiene Law to authorize the Commissioners of
OMRDD and OMH to consent to a release of portions of client or patient
records containing information that is available pursuant to Article
6-C of the Correction Law under certain circumstances.

(2) To amend the Correction Law to include persons who have had pleas
accepted, or who have had verdicts entered against them, of not
responsible by reason of mental disease or defect within the
provisions of the sex offender registration act where such plea or
verdict relates to a sex offense as defined in the provisions of the
sex offender registration act.

(3) To amend the Correction Law and the Mental Hygiene Law in relation
to ensuring that notification of change of address by a sex offender
occurs at or prior to the time that such offender is to be discharged
or released from a Department of Mental Hygiene facility.

 SUMMARY OF PROVISIONS :

(1) Section one of this bill would authorize both the Commissioner of
OMRDD and the Commissioner of OMH to release certain portions of
client or patient clinical information related to the sex offender
status of individuals to other persons and entities when necessary to
ensure the safety and welfare of others. The release of such
information would be limited to sex offender registration information
that is available to the public pursuant to Article 6-C of the
Correction Law.

(2) Sections two, three and four of bill would amend provisions within
the "Sex Offender Registration Act" ("SORA") set forth in Article 6-C
of the Correction Law as follows:

(a) Section two amends subdivision 10f § 168-a of the Correction Law,
to include, within the definition of "sex offender", those persons who
have entered a plea, accepted by the court, or have had a verdict
rendered against them, of not responsible by reason of mental disease
or defect with respect to any of the offenses for which a convicted
person would be defined or otherwise labeled under SORA as a sex
offender.

(b) Section three of this bill would amend paragraph (c) of
subdivision 1 of § 168-b of the Correction Law to require the Division
of Criminal Justice Services to maintain information in the SORA
registry on those persons who have entered a plea, accepted by the
court, or have had a verdict rendered against them, of not responsible
by reason of mental disease or defect and who, by reason of such plea
or verdict, would be included within the definition of a sex offender.
(c) Section four of this bill would amend § 168-d of the Correction
Law to create an additional duty of the court to certify, when
applicable, that a person is a sex offender in an order issued
pursuant to the provisions of Article 330 of the Criminal procedure
Law. This section is further amended so that the court carries out the
same duties, with respect to sex offenders who are subjected to orders
issued pursuant to the provisions of Article 330 of the Criminal
Procedure Law, as the court heretofore had carried out under this
section for persons who had been convicted of any of the offenses set
forth in subdivisions two or three of § 168-a of the Correction Law.

(3) Sections 5, 6 and 7 of this proposal will amend the provisions of
§29.16 of the Mental Hygiene Law which currently relates to the
discharge of patients from a department facility.  Under this
proposal, the director of a department facility, prior to the
discharge or release, including a court ordered release, of a patient
who is a registered sex offender pursuant to Article 6-C of the
Correction Law (SORA), will contact the Division of Criminal Justice
Services to determine whether or not such patient has registered a
proposed change of address pursuant to § 168-f(4)of the Correction
Law. In the event that the director of a department of facility finds
that the resident sex offender has not filed a proposed change of
address in accordance with the registration requirement of the
correction law, the director would be authorized to delay the
implementation of the discharge or release, including a court order
release, of such resident for a period of up to 10 days or until the
date that such person complies with the registration requirements of
the applicable provisions of SORA, whichever occurs first.

This proposal will also amend the provisions of §29.17 of the Mental
Hygiene Law to provide such patient wit h the fee amount that is
charged under SORA to register a change of address.  Finally, the
provisions of § 168-b(2) of the Correction Law would be amended to
authorize the Division of Criminal Justice Services to release SORA
registry information directly to the commissioner of mental
retardation or the commissioner of mental health.

 EXISTING LAW :

(1) Section one of this bill would add a new paragraph to subdivision
(c) of §33.13 of the Mental Hygiene Law.

(2) Article 6-C of the Correction Law provides for the registration of
sex offender who have been convicted of sex offenses which are listed
in subdivisions two or three of § 168-a of the Correction Law.
However, there is currently no statutory registration requirements
for, or sex offender designations of, individuals who have entered a
plea accepted by the court or have had a verdict rendered against
them, of not responsible by reason of mental disease or defect with
respect to any of the sex offenses set forth in such section of the
correction law. Section two, three and four of this bill would amend
three separate provisions of such Article 6-C which would provide for
the foregoing requirements.

(3) Sections 29.16 and 29.17 of the Mental Hygiene Law currently
address issues relative to the discharge or release of individuals who
are residents of Department of Mental Hygiene facilities.  Section
168-b(2) of the Correction Law, in part, provides authority to the
Division of Criminal Justice Services to release SORA registry
information to specified entities. Sections five, six and seven of
this bill will provide additional notification provisions and
information sharing.

 PRIOR LEGISLATIVE HISTORY :

Sections one, two, three and four of this bill were introduced as
S.4835 during the 2003-2004 legislative session. Sections five, six
and seven of this bill would constitute new proposed amendments to the
Mental Hygiene Law and the Correction Law. In the 2007-2008
legislative session the bill was referred to the Senate Committee on
Mental Health and Developmental Disabilities.
 STATEMENT IN SUPPORT :

(1) With respect to section one of this proposal, the provisions of
Article 6-C of the Correction Law which constitutes the Sex Offender
Registration Act, or "SORA", was enacted into law in response to
public outcry over repeat sex crimes committed by persons having a
history of such crimes while residing anonymously in a community.
SORA provides for the registration of all sex offenders who are
convicted of certain sex crimes, most of which involve offenses with
children. Under SORA, these offenders are required to register with
the Division of Criminal Justice Services (DCJS) and are given a
designation of one of three levels, depending upon the seriousness of
the crime for which they had been convicted and other evaluation
factors. DCJS provides information on all levels of sex offenders to
local law enforcement agencies. In turn, these agencies are allowed to
release information on these offenders to the public, in accordance
with, and subject to the restrictions and limitations set forth in,
the provisions of SORA.  OMRDD obtains registrant information that may
relate to its consumers from the NYS Division of State Police.

Mental Hygiene Law §33.13 prohibits the disclosure of clinical
information, including any information that identifies an individual
as receiving services funded by OMRDD, except in situations enumerated
in the law. When OMRDD obtains registrant information concerning
clients, disclosure of that information is limited by §33.13 of the
Mental Hygiene Law. Absent the consent of the consumer with the sex
offender designation or a finding of serious and imminent danger to
others, such information cannot be disclosed to staff who have no
supervisory responsibilities for the individual, other consumers,
their family members, or to other regular visitors.

In the interest of safety to other patients and clients, staff and
others who may need to know this sex offender information, the
Commissioners of OMRDD and OMH will be authorized to release to them
the same information available under article 6-C of the Correction Law
from the records of a patient or client.

(2) With respect to sections two, three and four of this bill, the
provisions of SORA, set forth in Article 6-C of the Correction Law,
require that persons who have been convicted of certain sex offenses
to register with DCJS as sex offenders and that DCJS is required to
maintain a sex offender registry with specific information concerning
convicted sex offenders. However, persons, who have been charged with
a sex offense as set forth in SORA and who, with respect to such
charges, have entered a plea, accepted by the court, or have had a
verdict rendered against them, of not responsible by reason of mental
disease or defect, do not fall within the definition of a sex offender
and are not required to register with DCJS as a sex offender.
Although such individuals have not technically been convicted of a
designated sex offense, they arguably continue to pose the same threat
to other persons within this state that convicted sex offenders pose
to the citizens of this state. Since there doesn't appear to be any
constitutional or policy reasons that would prevent these individuals
from being subjected to the requirements of SORA, these individuals
should be required to register and be subjected to the same provisions
of SORA as if they had been convicted of the same sex offenses.

(3) Currently under the provisions of § 168-f of the Correction Law, a
registered sex offender is required to register with DCJS no later
than ten calendar days after any change of address or any change of
his or her status of enrollment, attendance, employment or residence
at any institution of higher education. These same provisions apply to
registered sex offender's who are residents of a Department of Mental
Hygiene facility and who are subsequently discharged or released from
such facility. Residents of department facilities, however, undergo a
discharge planning process that makes it likely that the intended new
address of a facility resident is known at or prior to the time of
their discharge or release. In the interest of public safety, this
information should be conveyed to DCJS as soon as possible at or prior
to the discharge or release of such residents.  Sections five, six and
seven of this bill will ensure that registered sex offender have
properly notified DCJS of their intended new address at or prior to
the time that they are discharged or released from the care and
custody of the Department of Mental Hygiene.

 BUDGET IMPLICATIONS :

Unknown at this time.

 LEGISLATIVE HISTORY :

2005: S.5624 - Passed Senate
2006: S.5624 - Senate Mental Health and Developmental Disabilities
Committee.
2007-08: S.3327 - Senate Mental Health and Developmental Disabilities
Committee

 EFFECTIVE DATE :
This bill would take effect on the one hundred and eightieth day after
it shall have become law.

2009-S4176 (ACTIVE) - Bill Text download pdf

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

                                  4176

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                             April 15, 2009
                               ___________

Introduced  by  Sens.  FLANAGAN,  LARKIN, MAZIARZ, MORAHAN, RANZENHOFER,
  SKELOS, VOLKER -- read twice and ordered printed, and when printed  to
  be committed to the Committee on Mental Health and Developmental Disa-
  bilities

AN  ACT  to  amend  the mental hygiene law, in relation to disclosure of
  sexual offender information related to a patient  or  client,  and  to
  amend  the correction law, in relation to inclusion of certain persons
  within the provisions of the sex offender registration  act  who  have
  had  pleas  accepted, or who have had verdicts entered with respect to
  them, of not responsible by reason of mental disease or defect

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

  Section  1.  Paragraph  9  of  subdivision (c) of section 33.13 of the
mental hygiene law is amended by adding a new subparagraph (ix) to  read
as follows:
  (IX) APPROPRIATE PERSONS AND ENTITIES PURSUANT TO ARTICLE SIX-C OF THE
CORRECTION  LAW, WHEN DISCLOSURE IS LIMITED TO SEXUAL OFFENDER REGISTRA-
TION INFORMATION NECESSARY TO ENSURE THE WELFARE AND SAFETY OF OTHERS.
  S 2. Subdivision 1 of section 168-a of the correction law, as added by
chapter 192 of the laws of 1995, is amended to read as follows:
  1. "Sex offender" includes any person who is convicted of any  of  the
offenses  set  forth  in  subdivision  two  or  three  of  this section.
Convictions that result from or are connected  with  the  same  act,  or
result  from  offenses  committed at the same time, shall be counted for
the purpose of this article as one conviction. Any conviction set  aside
pursuant  to  law  is not a conviction for purposes of this article. FOR
PURPOSES OF THIS ARTICLE, THE TERM "SEX OFFENDER"  SHALL  BE  DEEMED  TO
INCLUDE A PERSON WHO HAS HAD A CRIMINAL ACTION COMMENCED AGAINST THEM BY
THE FILING OF AN ACCUSATORY INSTRUMENT, A SUPERIOR COURT INFORMATION, OR
INDICTMENT  WHICH  INCLUDES  A  CHARGE  FOR THE COMMISSION OF ANY OF THE
OFFENSES SET FORTH IN SUBDIVISION TWO OR THREE OF THIS SECTION AND, WITH

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD06525-01-9

S. 4176                             2

RESPECT TO SUCH OFFENSE OR  OFFENSES,  HAS  ENTERED  A  PLEA,  WHICH  IS
ACCEPTED,  OR  HAS  HAD  A  VERDICT  ENTERED AGAINST SUCH PERSON, OF NOT
RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT.   ANY  SUCH  PLEA  OR
VERDICT  WITH  RESPECT TO SUCH OFFENSE OR OFFENSES SHALL BE CONSIDERED A
CONVICTION OF ALL OF THE OFFENSES SO CHARGED, OR THAT REMAIN AS  CHARGED
OR  OTHERWISE EXIST AT THE TIME OF THE ENTRY OF SUCH PLEA OR VERDICT, AS
MAY BE APPLICABLE, THAT FALL WITHIN THE DEFINITION  OF  SEX  OFFENSE  OR
SEXUALLY  VIOLENT  OFFENSE  AS  SET FORTH IN SUBDIVISION TWO OR THREE OF
THIS SECTION AND SHALL BE DEEMED  TO  BE  A  CONVICTION  FOR  ALL  OTHER
PURPOSES OF THIS ARTICLE.
  S 3. Paragraph (c) of subdivision 1 of section 168-b of the correction
law, as amended by chapter 11 of the laws of 2002, is amended to read as
follows:
  (c)  A  description  of  the  offense  for  which the sex offender was
convicted, the date of conviction and the sentence imposed. IN THE EVENT
THAT SUCH CONVICTION IS DEEMED TO EXIST FROM THE ENTRY AND ACCEPTANCE OF
A PLEA, OR THE ENTRY OF A VERDICT,  OF  NOT  RESPONSIBLE  BY  REASON  OF
MENTAL  DISEASE OR DEFECT AS DESCRIBED IN SUBDIVISION ONE OF SECTION ONE
HUNDRED SIXTY-EIGHT-A OF THIS ARTICLE, THE DATE OF CONVICTION  SHALL  BE
DEEMED  TO BE THE DATE THE PLEA WAS ACCEPTED BY THE COURT, OR THE DATE A
VERDICT WAS ENTERED, OF NOT RESPONSIBLE BY REASON OF MENTAL  DISEASE  OR
DEFECT.  IN  LIEU  OF  A  DESCRIPTION  OF  THE  SENTENCE IMPOSED WHERE A
CONVICTION IS DEEMED TO EXIST AS A RESULT OF SUCH PLEA OR VERDICT, THERE
SHALL BE ENTERED A DESCRIPTION OF ALL  PROCEEDINGS  THAT  HAVE  OCCURRED
PURSUANT TO THE PROVISIONS OF ARTICLE THREE HUNDRED THIRTY OF THE CRIMI-
NAL PROCEDURE LAW.
  S  4. Section 168-d of the correction law, as amended by chapter 11 of
the laws of 2002, paragraph (a) of subdivision 1 as amended  by  chapter
69  of  the  laws  of 2003, paragraph (b) of subdivision 1 as amended by
chapter 74 of the laws of 2007, and subdivision 2 as amended and  subdi-
vision 4 as added by chapter 684 of the laws of 2005, is amended to read
as follows:
  S  168-d. Duties of the court. 1. (a) Except as provided in paragraphs
(b) and (c) of this subdivision, upon conviction of any of the  offenses
set  forth  in  subdivision  two  or three of section one hundred sixty-
eight-a of this article the court shall certify that the person is a sex
offender and shall include the certification in the order of commitment,
if any, and judgment of conviction OR IN AN ORDER ISSUED PURSUANT TO THE
PROVISIONS OF ARTICLE THREE HUNDRED THIRTY  OF  THE  CRIMINAL  PROCEDURE
LAW,  except  as provided in paragraph (e) of subdivision two of section
one hundred sixty-eight-a of this article. The court shall  also  advise
the  sex  offender  of  his or her duties under this article. Failure to
include the certification in the order of commitment [or], the  judgment
of conviction, OR IN AN ORDER ISSUED PURSUANT TO THE PROVISIONS OF ARTI-
CLE THREE HUNDRED THIRTY OF THE CRIMINAL PROCEDURE LAW shall not relieve
a sex offender of the obligations imposed by this article.
  (b)  Where a defendant stands convicted of an offense defined in para-
graph (b) of subdivision two of section  one  hundred  sixty-eight-a  of
this article or where the defendant was convicted of patronizing a pros-
titute in the third degree under section 230.04 of the penal law and the
defendant  controverts an allegation that the victim of such offense was
less than eighteen years of age or, in the case of  a  conviction  under
section  230.04  of the penal law, less than seventeen years of age, the
court, without a jury, shall, prior to sentencing OR  ISSUING  AN  ORDER
PURSUANT TO THE PROVISIONS OF ARTICLE THREE HUNDRED THIRTY OF THE CRIMI-
NAL  PROCEDURE LAW, conduct a hearing, and the people may prove by clear

S. 4176                             3

and convincing evidence that the victim was less than eighteen years  of
age  or less than seventeen years of age, as applicable, by any evidence
admissible under the rules applicable to a trial of the issue of  guilt.
The  court  in  addition  to  such admissible evidence may also consider
reliable hearsay evidence submitted by either party provided that it  is
relevant to the determination of the age of the victim. Facts concerning
the  age  of  the  victim  proven at trial or ascertained at the time of
entry of a plea of guilty, OR FACTS CONCERNING THE  AGE  OF  THE  VICTIM
ASCERTAINED  AT  THE  TIME  A  PLEA IS ENTERED, WHICH IS ACCEPTED BY THE
COURT, OR AT A TRIAL WHERE VERDICT IS ENTERED AGAINST  SUCH  PERSON,  OF
NOT  RESPONSIBLE  BY REASON OF MENTAL DISEASE OR DEFECT, shall be deemed
established by clear and convincing evidence and shall  not  be  reliti-
gated.  At  the  conclusion of the hearing, or if the defendant does not
controvert an allegation that the victim of the offense  was  less  than
eighteen  years  of age or less than seventeen years of age, as applica-
ble, the court must make a finding and enter an order setting forth  the
age  of  the  victim. If the court finds that the victim of such offense
was under eighteen years of age or under  seventeen  years  of  age,  as
applicable, the court shall certify the defendant as a sex offender, the
provisions  of  paragraph  (a)  of  this subdivision shall apply and the
defendant shall register  with  the  division  in  accordance  with  the
provisions of this article.
  (c)  Where a defendant stands convicted of an offense defined in para-
graph (c) of subdivision two of section  one  hundred  sixty-eight-a  of
this  article  and  the  defendant  controverts  an  allegation that the
defendant was previously convicted  of  a  sex  offense  or  a  sexually
violent offense defined in this article or has previously been convicted
of  or  convicted  for  an  attempt  to  commit any of the provisions of
section 130.52 or 130.55 of the penal law, the court,  without  a  jury,
shall,  prior  to  sentencing  OR  ISSUING  AN  ORDER  PURSUANT  TO  THE
PROVISIONS OF ARTICLE THREE HUNDRED THIRTY  OF  THE  CRIMINAL  PROCEDURE
LAW, conduct a hearing, and the people may prove by clear and convincing
evidence that the defendant was previously convicted of a sex offense or
a  sexually  violent  offense  defined in this article or has previously
been convicted of or convicted for an  attempt  to  commit  any  of  the
provisions of section 130.52 or 130.55 of the penal law, by any evidence
admissible  under the rules applicable to a trial of the issue of guilt.
The court in addition to such  admissible  evidence  may  also  consider
reliable  hearsay evidence submitted by either party provided that it is
relevant to the determination of whether the  defendant  was  previously
convicted of a sex offense or a sexually violent offense defined in this
article  or has previously been convicted of or convicted for an attempt
to commit any of the provisions of section 130.52 or 130.55 of the penal
law. At the conclusion of the hearing, or  if  the  defendant  does  not
controvert  an allegation that the defendant was previously convicted of
a sex offense or a sexually violent offense defined in this  article  or
has  previously  been convicted of or convicted for an attempt to commit
any of the provisions of section 130.52 or 130.55 of the penal law,  the
court  must  make  a  finding and enter an order determining whether the
defendant was previously convicted  of  a  sex  offense  or  a  sexually
violent offense defined in this article or has previously been convicted
of  or  convicted  for  an  attempt  to  commit any of the provisions of
section 130.52 or 130.55 of the penal law. If the court finds  that  the
defendant  has  such  a previous conviction, the court shall certify the
defendant as a sex offender, the provisions of  paragraph  (a)  of  this

S. 4176                             4

subdivision  shall apply and the defendant shall register with the divi-
sion in accordance with the provisions of this article.
  2.  Any  sex offender, who is released on probation or discharged upon
payment of a fine, conditional discharge or unconditional  discharge  OR
IS  RELEASED  OR  DISCHARGED PURSUANT TO THE PROVISIONS OF ARTICLE THREE
HUNDRED THIRTY OF THE  CRIMINAL  PROCEDURE  LAW  shall,  prior  to  such
release  or  discharge, be informed of his or her duty to register under
this article by the court in which he or she was  convicted  OR  BY  THE
COURT  ISSUING  AN  ORDER  PURSUANT  TO  THE PROVISIONS OF ARTICLE THREE
HUNDRED THIRTY OF THE CRIMINAL PROCEDURE LAW.  At the time  sentence  is
imposed  OR  AT  THE TIME THAT THE COURT ISSUES AN ORDER PURSUANT TO THE
PROVISIONS OF ARTICLE THREE HUNDRED THIRTY  OF  THE  CRIMINAL  PROCEDURE
LAW,  such  sex  offender  shall  register  with  the division on a form
prepared by the division. The court shall require the  sex  offender  to
read and sign such form and to complete the registration portion of such
form.  The  court  shall  on  such form obtain the address where the sex
offender expects to reside upon his or her release,  and  the  name  and
address  of  any institution of higher education he or she expects to be
employed by, enrolled in, attending or  employed,  whether  for  compen-
sation  or  not,  and  whether he or she expects to reside in a facility
owned or operated by such an institution, AND, IF APPLICABLE, A COPY  OF
THE ORDER ISSUED, AND DESCRIPTION OF ALL PROCEEDINGS THAT HAVE OCCURRED,
PURSUANT TO THE PROVISIONS OF ARTICLE THREE HUNDRED THIRTY OF THE CRIMI-
NAL PROCEDURE LAW and shall report such information to the division. The
court shall give one copy of the form to the sex offender and shall send
two  copies  to  the division which shall forward the information to the
law enforcement agencies having jurisdiction. The court shall also noti-
fy the district attorney and the sex offender of the date of the  deter-
mination  proceeding  to  be  held pursuant to subdivision three of this
section, which shall be held at least forty-five days after such  notice
is  given.  This  notice  shall  include  the  following  statement or a
substantially similar statement:  "This  proceeding  is  being  held  to
determine  whether you will be classified as a level 3 offender (risk of
repeat offense is high), a level 2 offender (risk of repeat  offense  is
moderate),  or  a  level  1 offender (risk of repeat offense is low), or
whether you will be designated as a sexual predator, a sexually  violent
offender  or a predicate sex offender, which will determine how long you
must register as a sex offender and how much information can be provided
to the public concerning your registration. If you  fail  to  appear  at
this  proceeding,  without  sufficient  excuse, it shall be held in your
absence. Failure to appear may result in a longer period of registration
or a higher level of community notification because you are not  present
to offer evidence or contest evidence offered by the district attorney."
The  court shall also advise the sex offender that he or she has a right
to a hearing prior to the court's determination, that he or she has  the
right  to be represented by counsel at the hearing and that counsel will
be appointed if he or she is financially unable to  retain  counsel.  If
the  sex  offender applies for assignment of counsel to represent him or
her at the hearing and counsel was not previously assigned to  represent
the  sex  offender  in  the  underlying criminal action, the court shall
determine whether the offender is financially unable to retain  counsel.
If  such  a finding is made, the court shall assign counsel to represent
the sex offender pursuant to article eighteen-B of the county law. Where
the court orders a sex offender released on probation, such  order  must
include  a  provision  requiring that he or she comply with the require-
ments of this article. Where such sex offender violates such  provision,

S. 4176                             5

probation  may  be immediately revoked in the manner provided by article
four hundred ten of the criminal procedure law.
  3.  For sex offenders released on probation or discharged upon payment
of a fine, conditional discharge or unconditional discharge, OR RELEASED
OR DISCHARGED PURSUANT TO THE PROVISIONS OF ARTICLE THREE HUNDRED THIRTY
OF THE CRIMINAL PROCEDURE LAW, it shall be the duty of the court  apply-
ing  the  guidelines  established  in  subdivision  five  of section one
hundred sixty-eight-l of this article to determine the level of  notifi-
cation  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. At least fifteen days prior to the determination  proceed-
ing, the district attorney shall provide to the court and the sex offen-
der  a  written statement setting forth the determinations sought by the
district attorney together with the reasons for  seeking  such  determi-
nations.  The court shall allow the sex offender to appear and be heard.
The state shall appear by the district attorney, or his or her designee,
who shall bear the burden of proving the facts supporting  the  determi-
nations  sought  by  clear  and  convincing evidence.   Where there is a
dispute between the parties concerning  the  determinations,  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, institution, office, agency,
department or division. Such materials may be obtained  by  subpoena  if
not voluntarily provided to the requesting party. In making the determi-
nations,  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 OR PREVIOUSLY ELICITED AT THE TIME  A  PLEA  IS  ENTERED,
WHICH IS ACCEPTED BY THE COURT, OR ARE PROVEN AT A TRIAL WHERE A VERDICT
HAS  BEEN  ENTERED,  OF  NOT  RESPONSIBLE BY REASON OF MENTAL DISEASE OR
DEFECT 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 submit-
ted  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.
  4. If a sex offender, having been given notice, including the time and
place  of  the determination proceeding in accordance with this section,
fails to appear at this proceeding, without sufficient excuse, the court
shall conduct the hearing and make the determinations in the manner  set
forth in subdivision three of this section.
  S  5.  Section  29.16 of the mental hygiene law, as amended by chapter
465 of the laws of 1992, is amended to read as follows:
S 29.16 Discharge OR RELEASE; certain cases.

S. 4176                             6

  (A) The director of a facility shall,  with  respect  to  any  patient
admitted  to  such facility pursuant to section five hundred nine of the
executive law or 353.4 of the family  court  act  and  article  nine  or
fifteen  of this chapter, give immediate written notice to the [director
of the division for youth] OFFICE OF CHILDREN AND FAMILY SERVICES and to
the mental hygiene legal service when any such patient leaves the facil-
ity  without  the  consent  of  its  director. Such patient shall not be
discharged so long as there is a valid order of the family court placing
such person with the [division for youth] OFFICE OF CHILDREN AND  FAMILY
SERVICES,  except  in  accordance  with  the  provisions of section five
hundred nine of the executive law or section 353.4 of the  family  court
act.
  (B)  NOTWITHSTANDING  ANY  PROVISIONS OF LAW TO THE CONTRARY, PRIOR TO
THE DISCHARGE OR RELEASE, INCLUDING A  COURT  ORDERED  RELEASE,  FROM  A
DEPARTMENT  FACILITY  OF  A  PATIENT  WHO  IS A SEX OFFENDER REQUIRED TO
REGISTER PURSUANT TO ARTICLE SIX-C OF THE CORRECTION LAW,  THE  DIRECTOR
OF  A  FACILITY  SHALL CONTACT THE DIVISION OF CRIMINAL JUSTICE SERVICES
(HEREIN THE "DIVISION") TO DETERMINE WHETHER OR  NOT  SUCH  PATIENT  HAS
REGISTERED A CHANGE OF ADDRESS PURSUANT TO THE PROVISIONS OF SUBDIVISION
FOUR  OF SECTION ONE HUNDRED SIXTY-EIGHT-F OF THE CORRECTION LAW. IN THE
EVENT THAT THE DIRECTOR DETERMINES  THAT  SUCH  PATIENT  HAS  FAILED  TO
PROVIDE  THE  DIVISION  WITH THE NOTIFICATION OF CHANGE OF ADDRESS WHICH
WILL PROVIDE THE DIVISION WITH THE PATIENT'S INTENDED NEW ADDRESS  WHICH
WILL TAKE EFFECT UPON SUCH DISCHARGE OR RELEASE, THE DIRECTOR IMMEDIATE-
LY  SHALL NOTIFY THE PATIENT AND THE MENTAL HYGIENE LEGAL SERVICE OF THE
REQUIREMENTS OF  REGISTERING  A  CHANGE  OF  ADDRESS  PURSUANT  TO  SUCH
PROVISIONS  OF  THE  CORRECTION  LAW.  NOTWITHSTANDING THE PROVISIONS OF
SECTION ONE HUNDRED SIXTY-EIGHT-F OF THE CORRECTION LAW, THE DIRECTOR OF
A FACILITY IS AUTHORIZED TO DELAY THE IMPLEMENTATION OF THE DISCHARGE OR
RELEASE, INCLUDING A COURT ORDERED RELEASE, OF SUCH PATIENT FOR A PERIOD
OF UP TO TEN DAYS OR UNTIL THE DATE THAT SUCH PATIENT COMPLIES WITH  THE
REGISTRATION  REQUIREMENTS  OF  SUCH  PROVISIONS  OF THE CORRECTION LAW,
WHICHEVER OCCURS FIRST.
  S 6. Section 29.17 of the mental hygiene law is  amended  to  read  as
follows:
S 29.17 Clothing  and  money  to  be  furnished  patients  discharged or
          released.
  No patient shall be discharged or released from a department  facility
without  suitable  clothing  adapted to the season in which he OR SHE is
discharged or released; and if it  cannot  be  otherwise  obtained,  the
facility  shall  upon the order of the director, or of the commissioner,
as the case may be, furnish the same,  and  money  not  exceeding  fifty
dollars,  to defray his OR HER expenses until he OR SHE can reach his OR
HER relatives or friends, or find employment to earn a subsistence.  THE
FACILITY, UPON THE ORDER OF THE DIRECTOR, OR OF THE COMMISSIONER, AS THE
CASE  MAY  BE,  SHALL  FURNISH  A  PATIENT, WHO IS A SEX OFFENDER AND IS
REQUIRED TO REGISTER A CHANGE OF ADDRESS PURSUANT TO SUBDIVISION FOUR OF
SECTION ONE HUNDRED SIXTY-EIGHT-F OF THE CORRECTION LAW, WITH MONEY,  IN
AN AMOUNT EQUAL TO THE STATUTORY AMOUNT CHARGED BY THE DIVISION OF CRIM-
INAL  JUSTICE  SERVICES  TO DEFRAY THE EXPENSE OF REGISTERING HIS OR HER
CHANGE OF ADDRESS WITH THE DIVISION, AT OR PRIOR TO  THE  DATE  OF  SUCH
DISCHARGE OR RELEASE.
  S  7.  Paragraph a of subdivision 2 of section 168-b of the correction
law, as amended by chapter 645 of the laws of 2005, is amended  to  read
as follows:

S. 4176                             7

  a.  The  division  is authorized to make the registry available to any
regional or national registry of sex offenders for the purpose of  shar-
ing  information  OR TO THE COMMISSIONER OF MENTAL HEALTH OR THE COMMIS-
SIONER OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES.  The  divi-
sion  shall  accept  files from any regional or national registry of sex
offenders and shall make such files available when requested pursuant to
the provisions of this article.
  S 8. This act shall take effect on the one hundred eightieth day after
it shall have become a law.

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Senate Bill S4176

Sponsored By

Archive: Last Bill Status - In Senate Committee Codes Committee

May 26, 2010 - Committee Vote

Committee Vote: May 26, 2010

co-Sponsors

2009-S4176 (ACTIVE) - Details

2009-S4176 (ACTIVE) - Summary

2009-S4176 (ACTIVE) - Sponsor Memo

2009-S4176 (ACTIVE) - Bill Text download pdf

Comments

Senate Bill S4176

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Sponsored By

John J. Flanagan

Archive: Last Bill Status - In Senate Committee Codes Committee

co-Sponsors

William Larkin

George D. Maziarz

Thomas P. Morahan

Michael H. Ranzenhofer

2009-S4176 (ACTIVE) - Details

2009-S4176 (ACTIVE) - Summary

2009-S4176 (ACTIVE) - Sponsor Memo

2009-S4176 (ACTIVE) - Bill Text download pdf

Comments