S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   6548
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                               June 1, 2017
                                ___________
 
 Introduced  by  Sen.  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 dissemination of
   information on sex offenders from another  state  who  have  not  been
   assigned a risk level in this state

   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Subdivision 2 of section 168-k of the  correction  law,  as
 amended  by  chapter  684  of  the  laws  of 2005, is amended to read as
 follows:
   2. The division shall advise the  board  that  the  sex  offender  has
 established  residence  in this state. The board shall determine whether
 the sex offender is required to register with the  division.  If  it  is
 determined  that  the sex offender is required to register, the division
 shall notify the sex offender of his or her duty to register under  this
 article  and  shall  require  the  sex offender to sign a form as may be
 required by the division acknowledging that the duty to register and the
 procedure for registration has been explained to the sex  offender.  The
 division  shall  obtain  on such form the address where the sex offender
 expects to reside within the state and the sex offender shall retain one
 copy of the form and send two copies to the division which shall provide
 the information to the law enforcement agency having jurisdiction  where
 the sex offender expects to reside within this state.  IF THE SEX OFFEN-
 DER  HAS  NOT  BEEN  GIVEN  A  RISK LEVEL DESIGNATION IN THIS STATE, FOR
 PURPOSES OF DISSEMINATING RELEVANT INFORMATION AND UNTIL  SUCH  TIME  AS
 THE  SEX  OFFENDER  HAS  RECEIVED A RISK LEVEL DESIGNATION IN ACCORDANCE
 WITH THIS SECTION, THE LAW ENFORCEMENT AGENCY  HAVING  JURISDICTION  AND
 THE DIVISION MAY DISSEMINATE RELEVANT INFORMATION IN ACCORDANCE WITH THE
 PROVISIONS  OF  PARAGRAPH  (B) OF SUBDIVISION SIX OF SECTION ONE HUNDRED
 SIXTY-EIGHT-L, SECTION ONE HUNDRED SIXTY-EIGHT-P AND SUBDIVISION ONE  OF
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD11907-02-7

 S. 6548                             2
 
 SECTION ONE HUNDRED SIXTY-EIGHT-Q OF THIS ARTICLE. WHEN THE SEX OFFENDER
 HAS  BEEN ASSIGNED A RISK LEVEL IN ACCORDANCE WITH THIS SECTION, DISSEM-
 INATION OF RELEVANT INFORMATION FOR THAT RISK LEVEL SHALL THEREAFTER  BE
 MADE  BY THE LAW ENFORCEMENT AGENCY HAVING JURISDICTION AND THE DIVISION
 SHALL BE MADE AS PROVIDED IN THIS ARTICLE. No  later  than  thirty  days
 prior  to  the  board making a 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 relevant to the review.
 After  reviewing  any  information obtained, and applying the guidelines
 established in subdivision five of section one hundred sixty-eight-l  of
 this  article,  the board shall within sixty calendar days make a recom-
 mendation regarding 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.  This recom-
 mendation shall be confidential and shall not be  available  for  public
 inspection.  It  shall  be submitted by the board to the county court or
 supreme court and to the district attorney in the county of residence of
 the sex offender and to the sex offender. It shall be the  duty  of  the
 county  court  or  supreme  court  in the county of residence of the sex
 offender, 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. At least thirty days prior to the deter-
 mination proceeding, such court shall notify the district  attorney  and
 the  sex offender, in writing, of the date of the determination proceed-
 ing and the court shall also  provide  the  district  attorney  and  sex
 offender  with  a copy of the recommendation 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 substan-
 tially 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  moder-
 ate),  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. 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

 S. 6548                             3
 
 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 determinations sought by the district attor-
 ney 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. It shall be the duty of the court  apply-
 ing  the  guidelines  established  in  subdivision  five  of section one
 hundred sixty-eight-l of this article to determine the level of  notifi-
 cation  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. Where there is a dispute between  the  parties  concerning
 the  determinations, 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 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 recommendation and any material submitted by
 the board, and may  consider  reliable  hearsay  evidence  submitted  by
 either  party,  provided  that  it is relevant to the determinations. If
 available, facts proven at trial or elicited at the time 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-
 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.
   § 2. This act shall take effect immediately.