S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    188
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                                (PREFILED)
 
                              January 6, 2021
                                ___________
 
 Introduced  by  M.  of A. PERRY, COLTON, GALEF, GUNTHER, LUPARDO -- 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.
                                                            LBD04242-01-1

 A. 188                              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.
   §  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:
   2-A. ANY SEX OFFENDER REQUIRED TO WEAR  A  GLOBAL  POSITIONING  SYSTEM
 MONITOR  PURSUANT  TO  THIS ARTICLE MAY PETITION THE SENTENCING COURT OR

 A. 188                              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.
   § 4. This act shall take effect on the first of November next succeed-
 ing the date on which it shall have become a law.