S T A T E O F N E W Y O R K
________________________________________________________________________
2139
2015-2016 Regular Sessions
I N A S S E M B L Y
January 15, 2015
___________
Introduced by M. of A. ENGLEBRIGHT, ORTIZ, COLTON -- Multi-Sponsored by
-- M. of A. GALEF -- read once and referred to the Committee on
Correction
AN ACT to amend the correction law, in relation to the judicial determi-
nation that an offender is a sex offender or a sexually violent preda-
tor; and to repeal subdivision 2 of section 168-k of such law relating
thereto
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 subdivi-
sion five of section one hundred sixty-eight-l of this article to deter-
mine 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 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
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
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD06792-01-5
A. 2139 2
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] THE BOARD SHALL MAKE A LEVEL OF NOTIFICATION RECOMMENDATION TO THE
COURT IN ACCORDANCE WITH SECTION ONE HUNDRED SIXTY-EIGHT-L OF THIS ARTI-
CLE. FINAL LEVEL OF NOTIFICATION DETERMINATIONS BY THE COURT SHALL BE
MADE AFTER A CLASSIFICATION HEARING WHERE IN MAKING THE DETERMINATION,
THE COURT SHALL INCLUDE A REVIEW OF ANY VICTIM'S STATEMENT AND ANY MATE-
RIALS SUBMITTED BY THE SEX OFFENDER. THE COURT SHALL PROVIDE THAT THE
OFFENDER RECEIVE FAIR WRITTEN NOTICE OF THE CLASSIFICATION HEARING WHICH
SHALL INCLUDE A STATEMENT OF THE PROCEEDING'S PURPOSE, THE BOARD'S
RECOMMENDATION AND RAMIFICATIONS OF CLASSIFICATION LEVEL, AND A STATE-
MENT OF THE OFFENDER'S RIGHT TO BE REPRESENTED BY COUNSEL AT THE HEAR-
ING. THE OFFENDER SHALL HAVE THE RIGHT TO HAVE COUNSEL APPOINTED AND FOR
PRE-HEARING DISCOVERY OF DOCUMENTARY EVIDENCE ON WHICH THE BOARD'S LEVEL
OF NOTIFICATION RECOMMENDATION WAS DETERMINED. THE STATE MUST PROVE THE
FACTS SUPPORTING ANY CLASSIFICATION DETERMINATION. THE OFFENDER SHALL
HAVE THE RIGHT TO APPEAL A LEVEL OF NOTIFICATION DETERMINATION.
S 2. Subdivisions 1, 2 and 3 of section 168-g of the correction law,
as amended by section 18 of subpart B of part C of chapter 62 of the
laws of 2011, are amended to read as follows:
1. [The department or office of probation and correctional alterna-
tives in accordance with risk factors pursuant to section one hundred
sixty-eight-l of this article shall determine the duration of registra-
tion and notification for every sex offender who on the effective date
of this article is then on community supervision or probation for an
offense provided for in subdivision two or three of section one hundred
sixty-eight-a of this article] FOR SEX OFFENDERS UNDER THIS SECTION, THE
BOARD SHALL MAKE A LEVEL OF NOTIFICATION RECOMMENDATION TO THE COURT IN
ACCORDANCE WITH SECTION ONE HUNDRED SIXTY-EIGHT-L OF THIS ARTICLE. FINAL
LEVEL OF NOTIFICATION DETERMINATIONS BY THE COURT SHALL BE MADE AFTER A
CLASSIFICATION HEARING WHERE IN MAKING THE DETERMINATION, THE COURT
SHALL INCLUDE A REVIEW OF ANY VICTIM'S STATEMENT AND ANY MATERIALS
SUBMITTED BY THE SEX OFFENDER. THE COURT SHALL PROVIDE THAT THE OFFEN-
DER RECEIVE FAIR WRITTEN NOTICE OF THE CLASSIFICATION HEARING WHICH
SHALL INCLUDE A STATEMENT OF THE PROCEEDING'S PURPOSE, THE BOARD'S
RECOMMENDATION AND RAMIFICATIONS OF CLASSIFICATION LEVEL, AND A STATE-
A. 2139 3
MENT OF THE OFFENDER'S RIGHT TO BE REPRESENTED BY COUNSEL AT THE HEAR-
ING. THE OFFENDER SHALL HAVE THE RIGHT TO HAVE COUNSEL APPOINTED AND FOR
PRE-HEARING DISCOVERY OF DOCUMENTARY EVIDENCE ON WHICH THE BOARD'S LEVEL
OF NOTIFICATION RECOMMENDATION WAS DETERMINED. THE STATE MUST PROVE THE
FACTS SUPPORTING ANY CLASSIFICATION DETERMINATION. THE OFFENDER SHALL
HAVE A RIGHT TO APPEAL A LEVEL OF NOTIFICATION DETERMINATION.
2. Every sex offender who on the effective date of this article is
then on community supervision or probation for an offense provided for
in subdivision two or three of section one hundred sixty-eight-a of this
article shall within ten calendar days of [such determination] RECEIPT
OF HEARING NOTIFICATION register with his parole or probation officer.
On each anniversary of the sex offender's initial registration date
thereafter, the provisions of section one hundred sixty-eight-f of this
article shall apply. Any sex offender who fails or refuses to so comply
shall be subject to the same penalties as otherwise provided for in this
article which would be imposed upon a sex offender who fails or refuses
to so comply with the provisions of this article on or after such effec-
tive date.
3. [It] UPON FINAL COURT LEVEL OF NOTIFICATION DETERMINATION IT shall
be the duty of the [parole or probation officer] COURT to inform and
register such sex offender according to the requirements imposed by this
article. [A parole or probation officer] THE COURT shall give one copy
of the form to the sex offender and shall, within three calendar days,
send two copies electronically or otherwise to the department which
shall forward one copy electronically or otherwise to the law enforce-
ment agency having jurisdiction where the sex offender resides upon his
or her community supervision, probation, or local conditional release.
S 3. Subdivision 2 of section 168-k of the correction law is REPEALED
and two new subdivisions 2 and 2-a are added to read as follows:
2. FOR SEX OFFENDERS UNDER THIS SECTION, THE BOARD SHALL MAKE A LEVEL
OF NOTIFICATION RECOMMENDATION TO THE COURT IN ACCORDANCE WITH SECTION
ONE HUNDRED SIXTY-EIGHT-L OF THIS ARTICLE. FINAL LEVEL OF NOTIFICATION
DETERMINATIONS BY THE COURT SHALL BE MADE AFTER A CLASSIFICATION HEARING
WHERE IN MAKING THE DETERMINATION, THE COURT SHALL INCLUDE A REVIEW OF
ANY VICTIM'S STATEMENT AND ANY MATERIALS SUBMITTED BY THE SEX OFFENDER.
THE COURT SHALL PROVIDE THAT THE OFFENDER RECEIVE FAIR WRITTEN NOTICE OF
THE CLASSIFICATION HEARING WHICH SHALL INCLUDE A STATEMENT OF THE
PROCEEDING'S PURPOSE, THE BOARD'S RECOMMENDATION AND RAMIFICATIONS OF
CLASSIFICATION LEVEL, AND A STATEMENT OF THE OFFENDER'S RIGHT TO BE
REPRESENTED BY COUNSEL AT THE HEARING. THE OFFENDER SHALL HAVE THE RIGHT
TO HAVE COUNSEL APPOINTED AND FOR PRE-HEARING DISCOVERY OF DOCUMENTARY
EVIDENCE ON WHICH THE BOARD'S LEVEL OF NOTIFICATION RECOMMENDATION WAS
DETERMINED. THE STATE MUST PROVE THE FACTS SUPPORTING ANY CLASSIFICATION
DETERMINATION. THE OFFENDER SHALL HAVE A RIGHT TO APPEAL A LEVEL OF
NOTIFICATION DETERMINATION.
2-A. UPON FINAL COURT LEVEL OF NOTIFICATION DETERMINATION, IT SHALL BE
THE DUTY OF THE COURT TO INFORM AND REGISTER SUCH SEX OFFENDER ACCORDING
TO THE REQUIREMENTS IMPOSED BY THIS ARTICLE. THE COURT SHALL GIVE ONE
COPY OF THE FORM TO THE SEX OFFENDER AND SHALL, WITHIN THREE CALENDAR
DAYS, SEND TWO COPIES ELECTRONICALLY OR OTHERWISE TO THE DIVISION WHICH
SHALL FORWARD ONE COPY ELECTRONICALLY OR OTHERWISE TO THE LAW ENFORCE-
MENT AGENCY HAVING JURISDICTION WHERE THE SEX OFFENDER RESIDES UPON HIS
PAROLE, PROBATION, OR UPON ANY FORM OF STATE OR LOCAL CONDITIONAL
RELEASE.
A. 2139 4
S 4. The opening paragraph of subdivision 6 of section 168-l of the
correction law, as amended by chapter 11 of the laws of 2002, is amended
to read as follows:
Applying these guidelines, the board shall MAKE A RECOMMENDATION, FOR
OFFENDERS WHO ON THE EFFECTIVE DATE OF THIS ARTICLE WERE THEN INCARCER-
ATED, ON PROBATION OR PAROLE FOR AN OFFENSE PROVIDED FOR IN SUBDIVISION
TWO OR THREE OF SECTION ONE HUNDRED SIXTY-EIGHT-A OF THIS ARTICLE, WHICH
SHALL BE CONFIDENTIAL AND SHALL NOT BE AVAILABLE FOR PUBLIC INSPECTION,
EXCEPT FOR SEX OFFENDER PREHEARING DISCOVERY, TO THE SENTENCING COURT AS
TO WHETHER SUCH SEX OFFENDER WARRANTS THE DESIGNATION OF SEXUAL PREDA-
TOR, SEXUALLY VIOLENT PREDATOR OR PREDICATE SEX OFFENDER. APPLYING THESE
SAME GUIDELINES, THE BOARD SHALL within [sixty] NINETY calendar days
prior to the discharge, parole, release to post-release supervision or
release of a sex offender make a recommendation which shall be confiden-
tial and shall not be available for public inspection, EXCEPT FOR SEX
OFFENDER PREHEARING DISCOVERY, to the sentencing court as to whether
such sex offender warrants the designation of sexual predator, sexually
violent offender, or predicate sex offender as defined in subdivision
seven of section one hundred sixty-eight-a of this article. In addition,
the guidelines shall be applied by the board to make a recommendation to
the sentencing court which shall be confidential and shall not be avail-
able for public inspection, providing for one of the following three
levels of notification depending upon the degree of the risk of re-of-
fense by the sex offender.
S 5. Section 168-n of the correction law, as added by chapter 192 of
the laws of 1995, subdivision 1 as amended by chapter 11 of the laws of
2002, subdivisions 2 and 5 as amended by chapter 453 of the laws of
1999, and subdivision 3 as amended and subdivision 6 as added by chapter
684 of the laws of 2005, is amended to read as follows:
S 168-n. Judicial determination. 1. [A determination that an offender
is a sexual predator, sexually violent offender, or predicate sex offen-
der as defined in subdivision seven of section one hundred sixty-eight-a
of this article shall be made prior to the discharge, parole, release to
post-release supervision or release of such offender by the sentencing
court applying the guidelines established in subdivision five of section
one hundred sixty-eight-l of this article after receiving a recommenda-
tion from the board pursuant to section one hundred sixty-eight-l of
this article.
2. In addition, applying the guidelines established in subdivision
five of section one hundred sixty-eight-l of this article, the sentenc-
ing court shall also make a determination with respect to the level of
notification, after receiving a recommendation from the board pursuant
to section one hundred sixty-eight-l of this article. Both determi-
nations of the sentencing court shall be made thirty calendar days prior
to discharge, parole or release.
3. No later than thirty days prior to the board's recommendation, the
sex offender shall be notified that his or her case is under review and
that he or she is permitted to submit to the board any information rele-
vant to the review. Upon receipt of the board's recommendation, the
sentencing court shall determine whether the sex offender was previously
found to be eligible for assigned counsel in the underlying case. Where
such a finding was previously made, the court shall assign counsel to
represent the offender, pursuant to article eighteen-B of the county
law. At least twenty days prior to the determination proceeding, the
sentencing court shall notify the district attorney, the sex offender
and the sex offender's counsel, in writing, of the date of the determi-
A. 2139 5
nation proceeding and shall also provide the district attorney, the sex
offender and the sex offender's counsel with a copy of the recommenda-
tion received from the board and any statement of the reasons for the
recommendation received from the board. 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 written notice to the sex offen-
der shall also advise the offender that he or she has a right to a hear-
ing prior to the court's determination, and that he or she has the right
to be represented by counsel at the hearing. If counsel has been
assigned to represent the offender at the determination proceeding, the
notice shall also provide the name, address and telephone number of the
assigned counsel. Where counsel has not been assigned, the notice shall
advise the sex offender that counsel will be appointed if he or she is
financially unable to retain counsel, and a returnable form shall be
enclosed in the court's notice to the sex offender on which the sex
offender may apply for assignment of counsel. If the sex offender
applies for assignment of counsel and the court finds that the offender
is financially unable to retain counsel, the court shall assign counsel
to represent the sex offender pursuant to article eighteen-B of the
county law. If the district attorney seeks a determination that differs
from the recommendation submitted by the board, at least ten days prior
to the determination proceeding the district attorney shall provide to
the court and the sex offender a 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 the state board of examiners of sex offenders or
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 recommendation and any materials submitted by the
board, and may consider reliable hearsay evidence submitted by either
party, provided that it is relevant to the determinations. Facts previ-
ously 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 submit-
A. 2139 6
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] THE BOARD SHALL MAKE A
RECOMMENDATION TO THE COURT AS TO WHETHER AN OFFENDER IS A SEX OFFENDER,
A SEXUAL PREDATOR, A SEXUALLY VIOLENT PREDATOR OR A PREDICATE SEX OFFEN-
DER PURSUANT TO SECTION ONE HUNDRED SIXTY-EIGHT-L OF THIS ARTICLE. THE
BOARD SHALL MAKE A LEVEL OF NOTIFICATION RECOMMENDATION TO THE COURT IN
ACCORDANCE WITH SECTION ONE HUNDRED SIXTY-EIGHT-L OF THIS ARTICLE. FINAL
LEVEL OF NOTIFICATION DETERMINATIONS BY THE COURT SHALL BE MADE PRIOR TO
THE OFFENDER'S DISCHARGE, PAROLE OR RELEASE AND AFTER A CLASSIFICATION
HEARING WHERE IN MAKING THE DETERMINATION, THE COURT SHALL INCLUDE A
REVIEW OF ANY VICTIM'S STATEMENT AND ANY MATERIALS SUBMITTED BY THE SEX
OFFENDER. THE COURT SHALL PROVIDE THAT THE OFFENDER RECEIVE FAIR WRITTEN
NOTICE OF THE CLASSIFICATION HEARING WHICH SHALL INCLUDE A STATEMENT OF
THE PROCEEDING'S PURPOSE, THE BOARD'S RECOMMENDATION AND RAMIFICATIONS
OF CLASSIFICATION LEVEL, AND A STATEMENT OF THE OFFENDER'S RIGHT TO BE
REPRESENTED BY COUNSEL AT THE HEARING. THE OFFENDER SHALL HAVE THE RIGHT
TO HAVE COUNSEL APPOINTED AND FOR PRE-HEARING DISCOVERY OF DOCUMENTARY
EVIDENCE ON WHICH THE BOARD'S LEVEL OF NOTIFICATION RECOMMENDATION WAS
DETERMINED. THE STATE MUST PROVE THE FACTS SUPPORTING ANY CLASSIFICATION
DETERMINATION. THE OFFENDER SHALL HAVE A RIGHT TO APPEAL A LEVEL OF
NOTIFICATION DETERMINATION.
[4.] 2. Upon determination that the risk of repeat offense and threat
to public safety is high, the sentencing court shall also notify the
division of such fact for the purposes of section one hundred sixty-
eight-q of this article.
[5.] 3. Upon the reversal of a conviction of a sexual offense defined
in paragraphs (a) and (b) of subdivision two or three of section one
hundred sixty-eight-a of this article, the appellate court shall remand
the case to the lower court for entry of an order directing the expunge-
ment of any records required to be kept [herein] PURSUANT TO THIS ARTI-
CLE.
[6.] 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] ONE of this section.
S 6. This act shall take effect immediately.