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

                                   609

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                               (PREFILED)

                             January 9, 2013
                               ___________

Introduced by M. of A. 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

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

                                                           LBD01025-01-3

A. 609                              2

DISCHARGE,  THE  court shall [also] notify the district attorney and the
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

A. 609                              3

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. This act shall take effect immediately.