S T A T E   O F   N E W   Y O R K
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                                  7949

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                              May 25, 2011
                               ___________

Introduced  by  M.  of  A.  M. MILLER  --  read once and referred to the
  Committee on Correction

AN ACT to amend the correction law, in relation to risk  level  determi-
  nation hearings for convicted sex offenders

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

  Section 1. Subdivisions 2 and 3 of section  168-d  of  the  correction
law,  subdivision  2  as  amended by chapter 684 of the laws of 2005 and
subdivision 3 as amended by chapter 11 of the laws of 2002, are  amended
to read as follows:
  2.  Any  sex offender, who is released on probation or discharged upon
payment of a fine,  conditional  discharge  or  unconditional  discharge
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.  At  the  time  sentence  is imposed, 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 high-
er education he or she expects to be employed by, enrolled in, attending
or  employed,  whether  for  compensation  or not, and whether he or she
expects to reside in a facility owned or operated by  such  an  institu-
tion, 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  enforce-
ment agencies having jurisdiction. [The]
  2-A.  WITHIN  FIVE  DAYS OF THE CONVICTION OF ANY SEX OFFENDER, WHO IS
EXPECTED TO BE, UPON SENTENCING, RELEASED  ON  PROBATION  OR  DISCHARGED
UPON   PAYMENT   OF  A  FINE,  CONDITIONAL  DISCHARGE  OR  UNCONDITIONAL
DISCHARGE, THE court shall [also] notify the district attorney  and  the

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD11402-01-1
              

A. 7949                             2

sex  offender  of  the  date  of the determination proceeding to be held
pursuant to subdivision three of this section, which shall be  held  [at
least  forty-five]  WITHIN  TWENTY  days  after such notice is given AND
PRIOR  TO SENTENCING.  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.
  2-B. Where the court orders a sex offender released on probation, such
order must include a provision requiring that he or she comply with  the
requirements  of  this  article.  Where  such sex offender violates such
provision, probation may be immediately revoked in the  manner  provided
by article four hundred ten of the criminal procedure law.
  3. For sex offenders WHO ARE EXPECTED TO BE, UPON SENTENCING, 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, PRIOR TO SENTENCING, 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. At least fifteen days prior to the deter-
mination  proceeding,  the  district attorney shall provide to the court
and the sex offender a written  statement  setting  forth  the  determi-
nations  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
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

A. 7949                             3

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. This act shall take effect immediately.