S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   7509
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                                May 8, 2019
                                ___________
 
 Introduced  by  M.  of  A.  O'DONNELL  --  read once and referred to the
   Committee on Correction
 
 AN ACT to amend the correction  law,  in  relation  to  risk  assessment
   instruments for sex offenders
 
   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 AND RISK ASSESSMENT
 INSTRUMENT 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 pred-
 ator, 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  determinations  sought  by  the
 district attorney together with the reasons for  seeking  such  determi-
 nations.  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  determi-
 nations  sought  by  clear  and  convincing evidence.   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 any state or local facility, hospital, institution, office, agency,
 department or division. Such materials may be obtained  by  subpoena  if
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD06639-01-9

 A. 7509                             2
 
 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 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  conclu-
 sions  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. 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.  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 AND RISK ASSESSMENT  INSTRUMENT  established  in  subdivision
 five  of  section  one  hundred sixty-eight-l of this article, the board
 shall within sixty calendar days make  a  recommendation  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 recommendation shall  be  confiden-
 tial  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 AND RISK ASSESSMENT  INSTRUMENT  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

 A. 7509                             3
 
 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
 determination  proceeding, such court shall notify the district attorney
 and the sex offender, in writing,  of  the  date  of  the  determination
 proceeding  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
 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. 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 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 AND RISK ASSESSMENT INSTRUMENT established in subdi-
 vision 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 offen-
 der, 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

 A. 7509                             4
 
 submitted  by  the sex offender and the district attorney and the recom-
 mendation 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 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.
   §  3.  Subdivision  5  and  the  opening paragraph of subdivision 6 of
 section 168-l of the correction law, subdivision 5 as added  by  chapter
 192  of  the laws of 1995, subparagraph (i) of paragraph (a) of subdivi-
 sion 5 and the opening paragraph of subdivision 6 as amended by  chapter
 11  of  the laws of 2002, are amended and a new subdivision 5-a is added
 to read as follows:
   5. The board shall develop guidelines and procedures AND USE  A  VALI-
 DATED  RISK ASSESSMENT INSTRUMENT to assess the risk of a repeat offense
 by such sex offender and the threat posed to  the  public  safety.  SUCH
 RISK  ASSESSMENT INSTRUMENT SHALL BE PERIODICALLY SUBJECTED TO EMPIRICAL
 RE-VALIDATION.  Such  guidelines  shall  [be  based  upon,]  INCORPORATE
 FACTORS  FOUND TO BE PREDICTIVE OF RISK OF RE-OFFENSE, INCLUDING but not
 limited to, the following:
   (a) criminal  history  factors  indicative  of  high  risk  of  repeat
 offense, including:
   (i)  whether  the sex offender has a mental abnormality or personality
 disorder that makes him or her likely to engage  in  predatory  sexually
 violent offenses;
   (ii)  whether the sex offender's conduct was found to be characterized
 by repetitive and compulsive behavior, associated with drugs or alcohol;
   (iii) whether the sex offender served the maximum term;
   (iv) whether the sex offender committed the felony sex offense against
 a child;
   (v) the age of the sex offender at the time of the commission  of  the
 first sex offense;
   (b)  other  criminal  history  factors to be considered in determining
 risk, including:
   (i) the relationship between such sex offender and the victim;
   (ii) whether the offense involved the use of  a  weapon,  violence  or
 infliction of serious bodily injury;
   (iii) the number, date and nature of prior offenses;
   (c)  conditions  of  release  that  minimize  risk [or] OF re-offense,
 including but not limited to whether the sex offender  is  under  super-
 vision;  receiving  counseling,  therapy  or treatment; or residing in a
 home situation that provides guidance and supervision;
   (d) physical conditions that minimize risk  of  re-offense,  including
 but not limited to advanced age or debilitating illness;

 A. 7509                             5
 
   (e)  whether  psychological or psychiatric profiles indicate a risk of
 recidivism;
   (f) the sex offender's response to treatment;
   (g) recent behavior, including behavior while confined;
   (h)  recent  threats  or  gestures  against  persons or expressions of
 intent to commit additional offenses; and
   (i) review of any victim impact statement.
   5-A. (A) THE BOARD IN CONSULTATION WITH THE DEPARTMENT AND  THE  DIVI-
 SION OF CRIMINAL JUSTICE SERVICES SHALL MAINTAIN A STATEWIDE DATABASE OF
 SEX OFFENDER RECIDIVISM STATISTICS.
   (B)  THE BOARD IN CONSULTATION WITH THE DEPARTMENT AND THE DIVISION OF
 CRIMINAL JUSTICE SERVICES SHALL CONDUCT A PERIODIC RETROACTIVE STUDY  AT
 LEAST  EVERY  FIVE  YEARS  TO DETERMINE THE PREDICTIVE VALUE OF THE RISK
 ASSESSMENT INSTRUMENT USED TO ASSIGN RISK OF REPEAT  OFFENSE  LEVELS  TO
 SEX  OFFENDERS  PURSUANT  TO SUBDIVISION SIX OF THIS SECTION. AFTER EACH
 SUCH STUDY THE BOARD SHALL PREPARE A DETAILED REPORT TO THE GOVERNOR AND
 LEGISLATURE DETERMINING THE PREDICTIVE  VALUE  OF  THE  RISK  ASSESSMENT
 INSTRUMENT  AND  THE  PREDICTIVE  VALUE OF EACH FACTOR CONSIDERED IN THE
 OVERALL RISK ASSESSMENT WHEN APPLIED TO  THE  STATEWIDE  DATABASE  MAIN-
 TAINED  PURSUANT  TO PARAGRAPH (A) OF THIS SUBDIVISION. THE REPORT SHALL
 INCLUDE RECOMMENDED  CHANGES  TO  THE  GUIDELINES  AND  RISK  ASSESSMENT
 INSTRUMENT  TO  ENHANCE THEIR PREDICTIVE CAPABILITIES FOR THE PURPOSE OF
 PERIODIC REVALIDATION OF SUCH GUIDELINES AND RISK ASSESSMENT  INSTRUMENT
 PURSUANT TO SUBDIVISION FIVE OF THIS SECTION. THE FIRST SUCH STUDY SHALL
 BE COMPLETED WITHIN TWO YEARS OF THE EFFECTIVE DATE OF THIS SUBDIVISION.
   Applying   these   guidelines   AND   THE  VALIDATED  RISK  ASSESSMENT
 INSTRUMENT, the board shall within sixty  calendar  days  prior  to  the
 discharge,  parole,  release to post-release supervision or release of a
 sex offender make a recommendation which shall be confidential and shall
 not be available for public inspection, 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 AND SUCH INSTRUMENT shall be applied by  the
 board  to  make  a recommendation to the sentencing court which shall be
 confidential and shall not be available for public inspection, providing
 for one of the following three levels of notification depending upon the
 degree of the risk of re-offense by the sex offender.
   § 4. Subdivisions 1 and 2 of section  168-n  of  the  correction  law,
 subdivision  1 as amended by chapter 11 of the laws of 2002 and subdivi-
 sion 2 as amended by chapter 453 of the laws of  1999,  are  amended  to
 read as follows:
   1.  A  determination  that  an offender is 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 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
 AND RISK  ASSESSMENT  INSTRUMENT  established  in  subdivision  five  of
 section  one  hundred  sixty-eight-l  of  this article after receiving a
 recommendation from the board pursuant to  section  one  hundred  sixty-
 eight-l of this article.
   2. In addition, applying the guidelines AND RISK ASSESSMENT INSTRUMENT
 established  in subdivision five of section one hundred sixty-eight-l of
 this article, the sentencing 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

 A. 7509                             6
 
 article. Both determinations of the sentencing court shall be made thir-
 ty calendar days prior to discharge, parole or release.
   § 5. This act shall take effect on the one hundred eightieth day after
 it shall have become a law.