S T A T E O F N E W Y O R K
________________________________________________________________________
9258
I N A S S E M B L Y
February 9, 2012
___________
Introduced by M. of A. AUBRY -- 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
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
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD14211-02-2
A. 9258 2
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.
S 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
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
A. 9258 3
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
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
A. 9258 4
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.
S 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 the opening paragraph of and 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] MAY be based upon, but not limit-
ed 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 re-offense, including
but not limited to whether the sex offender is under supervision;
receiving counseling, therapy or treatment; or residing in a home situ-
ation that provides guidance and supervision;
(d) physical conditions that minimize risk of re-offense, including
but not limited to advanced age or debilitating illness;
(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;
A. 9258 5
(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 RISK ASSESSMENT INSTRUMENT TO ENHANCE
ITS PREDICTIVE CAPABILITIES FOR THE PURPOSE OF PERIODIC REVALIDATION OF
SUCH 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.
S 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
article. Both determinations of the sentencing court shall be made thir-
ty calendar days prior to discharge, parole or release.
S 5. This act shall take effect on the one hundred eightieth day after
it shall have become a law.