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

                                  5124

                       2015-2016 Regular Sessions

                          I N  A S S E M B L Y

                            February 12, 2015
                               ___________

Introduced  by  M.  of A. PERRY -- Multi-Sponsored by -- M. of A. CLARK,
  COLTON, GALEF, GUNTHER, JAFFEE, LAVINE, LUPARDO, 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
his  or  her  designee,  who  shall bear the burden of proving the facts
supporting the determinations sought by clear and  convincing  evidence.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD03510-01-5
              

A. 5124                             2

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:
  2-A. ANY SEX OFFENDER REQUIRED TO WEAR  A  GLOBAL  POSITIONING  SYSTEM
MONITOR  PURSUANT  TO  THIS ARTICLE MAY PETITION THE SENTENCING COURT OR

A. 5124                             3

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.