S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    20
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                                (PREFILED)
 
                              January 9, 2019
                                ___________
 
 Introduced  by  M. of A. PERRY -- Multi-Sponsored by -- M. of A. COLTON,
   GALEF, GUNTHER, JAFFEE, LUPARDO, TITUS -- 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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                       [ ] is old law to be omitted.
                                                            LBD02542-01-9

 A. 20                               2
 
 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
 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. 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.
   § 3. Section 168-o of the correction law is amended by  adding  a  new
 subdivision 2-a to read as follows:

 A. 20                               3
 
   2-A.  ANY  SEX  OFFENDER  REQUIRED TO WEAR A GLOBAL POSITIONING SYSTEM
 MONITOR PURSUANT TO THIS ARTICLE MAY PETITION THE  SENTENCING  COURT  OR
 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.
   § 4. This act shall take effect on the first of November next succeed-
 ing the date on which it shall have become a law.