S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   1511
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                             January 10, 2017
                                ___________
 
 Introduced by Sens. AVELLA, FLANAGAN, KENNEDY, MARCHIONE, MURPHY -- read
   twice  and  ordered  printed,  and when printed to be committed to the
   Committee on Crime Victims, Crime and 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.
              

                                                            LBD00594-01-7

 S. 1511                             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

 S. 1511                             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.
   § 2. This act shall take effect immediately.