S. 1542 2
[This] THE notice TO THE SEX OFFENDER shall include the following state-
ment [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. YOU HAVE A RIGHT TO
A HEARING BEFORE THE COURT MAKES THESE DETERMINATIONS. YOU HAVE A RIGHT
TO BE REPRESENTED BY COUNSEL AT THAT HEARING. COUNSEL WILL BE PROVIDED
IF YOU ARE FINANCIALLY UNABLE TO RETAIN COUNSEL. FAILURE TO APPEAR AT
THE HEARING IS A VIOLATION OF THIS ARTICLE. 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.] If
the sex offender applies for assignment of counsel to represent him or
her at the hearing and counsel was not previously assigned to represent
the sex offender in the underlying criminal action, the court shall
determine whether the offender is financially unable to retain counsel.
If such a finding is made, the court shall assign counsel to represent
the sex offender pursuant to article eighteen-B of the county law. Where
the court orders a sex offender released on probation, such order must
include a provision requiring that he or she comply with the require-
ments of this article. Where such sex offender violates such provision,
probation may be immediately revoked in the manner provided by article
four hundred ten of the criminal procedure law.
4. If a sex offender, having been given notice OF THE DETERMINATION
PROCEEDING, including the time and place [of the determination proceed-
ing] THEREOF in accordance with this section, fails to appear AND BE
HEARD at [this] SUCH proceeding, [without sufficient excuse,] the court
shall conduct the hearing and make the determinations in the manner set
forth in subdivision three of this section.
S 2. Section 168-f of the correction law is amended by adding a new
subdivision 1-a to read as follows:
1-A. EACH SEX OFFENDER SHALL APPEAR AT THE DETERMINATION PROCEEDING,
SET FORTH IN SUBDIVISION THREE OF SECTION ONE HUNDRED SIXTY-EIGHT-D OF
THIS ARTICLE, SUBDIVISION TWO OF SECTION ONE HUNDRED SIXTY-EIGHT-K OF
THIS ARTICLE OR SUBDIVISION THREE OF SECTION ONE HUNDRED SIXTY-EIGHT-N
OF THIS ARTICLE, HELD TO DETERMINE THE LEVEL OF NOTIFICATION AND WHETHER
SUCH SEX OFFENDER SHALL BE DESIGNATED A SEXUAL PREDATOR, SEXUALLY
VIOLENT OFFENDER, OR PREDICATE SEX OFFENDER.
S 3. Paragraph (c) of subdivision 2 of section 168-f of the correction
law, as amended by chapter 453 of the laws of 1999, is amended to read
as follows:
(c) If the sex offender fails to mail the signed verification form to
the division within ten calendar days after receipt of the form, he or
she shall be in violation of this [section unless he proves that he or
she has not changed his or her residence address] ARTICLE.
S. 1542 3
S 4. Subdivisions 2 and 4 of section 168-k of the correction law,
subdivision 2 as amended and subdivision 4 as added by chapter 684 of
the laws of 2005, are 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 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 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
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] THE notice TO THE SEX OFFENDER 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.
YOU HAVE A RIGHT TO A HEARING BEFORE THE COURT MAKES THESE DETERMI-
NATIONS. YOU HAVE A RIGHT TO BE REPRESENTED BY COUNSEL AT THAT HEARING.
COUNSEL WILL BE PROVIDED IF YOU ARE FINANCIALLY UNABLE TO RETAIN COUN-
S. 1542 4
SEL. FAILURE TO APPEAR AT THE HEARING IS A VIOLATION OF THIS ARTICLE. 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 finan-
cially 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 finan-
cially 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 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. 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. 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 mate-
rial submitted by the board, and may consider reliable hearsay evidence
submitted by either party, provided that it is relevant to the determi-
nations. 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 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
S. 1542 5
appeal as a poor person pursuant to article eighteen-B of the county
law.
4. If a sex offender, having been given notice OF THE DETERMINATION
PROCEEDING, including the time and place [of the determination proceed-
ing] THEREOF in accordance with this section, fails to appear AND BE
HEARD at [this] SUCH proceeding, [without sufficient excuse,] the court
shall conduct the hearing and make the determinations in the manner set
forth in subdivision two of this section.
S 5. Subdivisions 3 and 6 of section 168-n of the correction law,
subdivision 3 as amended and subdivision 6 as added by chapter 684 of
the laws of 2005, are amended to read as follows:
3. No later than thirty days prior to the board's 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 rele-
vant to the review. Upon receipt of the board's recommendation, the
sentencing court shall determine whether the sex offender was previously
found to be eligible for assigned counsel in the underlying case. Where
such a finding was previously made, the court shall assign counsel to
represent the offender, pursuant to article eighteen-B of the county
law. At least twenty days prior to the determination proceeding, the
sentencing court shall notify the district attorney, the sex offender
and the sex offender's counsel, in writing, of the date of the determi-
nation proceeding and shall also provide the district attorney, the sex
offender and the sex offender's counsel with a copy of the recommenda-
tion received from the board and any statement of the reasons for the
recommendation received from the board. [This] THE notice TO THE SEX
OFFENDER shall include the following statement [or a substantially simi-
lar 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 predi-
cate 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. YOU HAVE A RIGHT TO A HEARING BEFORE THE
COURT MAKES THESE DETERMINATIONS. YOU HAVE A RIGHT TO BE REPRESENTED BY
COUNSEL AT THAT HEARING. COUNSEL WILL BE PROVIDED IF YOU ARE FINANCIALLY
UNABLE TO RETAIN COUNSEL. FAILURE TO APPEAR AT THE HEARING IS A
VIOLATION OF THIS ARTICLE. 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
written notice to the sex offender shall also advise the offender that
he or she has a right to a hearing prior to the court's determination,
and that he or she has the right to be represented by counsel at the
hearing.] If counsel has been assigned to represent the offender at the
determination proceeding, the notice shall also provide the name,
address and telephone number of the assigned counsel. Where counsel has
not been assigned, [the notice shall advise the sex offender that coun-
sel will be appointed if he or she is financially unable to retain coun-
sel, and] 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
S. 1542 6
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. Where there is a dispute between the
parties concerning the determinations, the court shall adjourn the hear-
ing 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 mate-
rials submitted by the board, and may consider reliable hearsay evidence
submitted by either party, provided that it is relevant to the determi-
nations. 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.
6. If a sex offender, having been given notice OF THE DETERMINATION
PROCEEDING, including the time and place [of the determination proceed-
ing] THEREOF in accordance with this section, fails to appear AND BE
HEARD at [this] SUCH proceeding, [without sufficient excuse,] the court
shall conduct the hearing and make the determinations in the manner set
forth in subdivision three of this section.
S 6. Section 168-t of the correction law, as amended by chapter 373 of
the laws of 2007, is amended to read as follows:
S 168-t. [Penalty] FAILURE TO REGISTER, APPEAR AT THE DETERMINATION
PROCEEDING, ANNUALLY VERIFY, PERSONALLY VERIFY, NOTIFY OF STATUS AT AN
INSTITUTION OF HIGHER EDUCATION, NOTIFY OF ADDRESS CHANGE OR CHANGE OF
STATUS AT AN INSTITUTION OF HIGHER EDUCATION, NOTIFY OF ESTABLISHMENT OF
RESIDENCE IN STATE, OR COMPLY WITH THE PROHIBITION OF EMPLOYMENT ON
MOTOR VEHICLES ENGAGED IN RETAIL SALE OF FROZEN DESSERTS; PENALTY. 1.
Any sex offender required to register [or to verify] pursuant to the
provisions of this article [who fails to register or verify in the
manner and within the time periods provided for in this article shall
be] IS guilty of [a class E felony upon conviction for the first
offense, and upon conviction for a second or subsequent offense shall be
S. 1542 7
guilty of] FAILURE TO REGISTER, APPEAR AT THE DETERMINATION PROCEEDING,
ANNUALLY VERIFY, PERSONALLY VERIFY, NOTIFY OF STATUS AT AN INSTITUTION
OF HIGHER EDUCATION, NOTIFY OF ADDRESS CHANGE OR CHANGE OF STATUS AT AN
INSTITUTION OF HIGHER EDUCATION, NOTIFY OF ESTABLISHMENT OF RESIDENCE IN
STATE, OR COMPLY WITH THE PROHIBITION OF EMPLOYMENT ON MOTOR VEHICLES
ENGAGED IN THE RETAIL SALE OF FROZEN DESSERTS WHEN HE OR SHE:
(A) FAILS TO REGISTER WITH THE DIVISION ON A FORM PREPARED BY THE
DIVISION (I) AT LEAST TEN CALENDAR DAYS PRIOR TO DISCHARGE, PAROLE,
RELEASE TO POST-RELEASE SUPERVISION OR RELEASE FROM ANY STATE OR LOCAL
CORRECTIONAL FACILITY, HOSPITAL OR INSTITUTION WHERE HE OR SHE WAS
CONFINED OR COMMITTED, OR (II) AT THE TIME SENTENCE IS IMPOSED FOR ANY
SEX OFFENDER RELEASED ON PROBATION OR DISCHARGED UPON PAYMENT OF A FINE,
CONDITIONAL DISCHARGE OR UNCONDITIONAL DISCHARGE, OR (III) UPON THE
DIVISION'S REQUEST FOLLOWING A DETERMINATION BY THE BOARD THAT THE
OFFENDER IS REQUIRED TO REGISTER PURSUANT TO SUBDIVISION TWO OF SECTION
ONE HUNDRED SIXTY-EIGHT-K OF THIS ARTICLE; OR
(B) FAILS TO APPEAR AT THE DETERMINATION PROCEEDING, SET FORTH IN
SUBDIVISION THREE OF SECTION ONE HUNDRED SIXTY-EIGHT-D OF THIS ARTICLE,
SUBDIVISION TWO OF SECTION ONE HUNDRED SIXTY-EIGHT-K OF THIS ARTICLE OR
SUBDIVISION THREE OF SECTION ONE HUNDRED SIXTY-EIGHT-N OF THIS ARTICLE,
HELD TO DETERMINE THE LEVEL OF NOTIFICATION AND WHETHER SUCH SEX OFFEN-
DER SHALL BE DESIGNATED A SEXUAL PREDATOR, SEXUALLY VIOLENT OFFENDER, OR
PREDICATE SEX OFFENDER; OR
(C) FAILS TO SIGN AND RETURN TO THE DIVISION THE ANNUAL VERIFICATION
FORM MAILED BY THE DIVISION TO HIS OR HER LAST REPORTED ADDRESS PURSUANT
TO SECTION ONE HUNDRED SIXTY-EIGHT-B OF THIS ARTICLE WITHIN TEN CALENDAR
DAYS AFTER RECEIPT OF THE FORM; OR
(D) FAILS TO PERSONALLY VERIFY HIS OR HER ADDRESS WITH THE LOCAL LAW
ENFORCEMENT AGENCY EVERY NINETY CALENDAR DAYS AFTER THE DATE OF RELEASE
OR COMMENCEMENT OF PAROLE OR POST-RELEASE SUPERVISION, OR PROBATION, OR
RELEASE ON PAYMENT OF A FINE, CONDITIONAL DISCHARGE OR UNCONDITIONAL
DISCHARGE AFTER HAVING BEEN GIVEN A LEVEL THREE DESIGNATION OR HAVING
BEEN DESIGNATED A SEXUAL PREDATOR; OR
(E) FAILS TO PROVIDE THE DIVISION WITH THE NAME AND ADDRESS OF ANY
INSTITUTION OF HIGHER EDUCATION HE OR SHE EXPECTS TO BE EMPLOYED BY,
ENROLLED IN, ATTENDING OR EMPLOYED AT, WHETHER FOR COMPENSATION OR NOT,
AND WHETHER HE OR SHE EXPECTS TO RESIDE IN A FACILITY OWNED OR OPERATED
BY SUCH AN INSTITUTION; OR
(F) FAILS TO NOTIFY THE DIVISION NO LATER THAN TEN CALENDAR DAYS AFTER
ANY CHANGE OF ADDRESS; OR
(G) FAILS TO NOTIFY THE DIVISION NO LATER THAN TEN CALENDAR DAYS AFTER
ANY CHANGE OF STATUS AT AN INSTITUTION OF HIGHER EDUCATION; OR
(H) FAILS TO NOTIFY THE DIVISION WITHIN TEN CALENDAR DAYS AFTER ESTAB-
LISHING RESIDENCE IN THIS STATE IN THE CASE OF A SEX OFFENDER WHO HAS
BEEN CONVICTED OF AN OFFENSE WHICH REQUIRES REGISTRATION UNDER PARAGRAPH
(D) OF SUBDIVISION TWO OF SECTION ONE HUNDRED SIXTY-EIGHT-A OF THIS
ARTICLE OR PARAGRAPH (B) OF SUBDIVISION THREE OF SECTION ONE HUNDRED
SIXTY-EIGHT-A OF THIS ARTICLE; OR
(I) VIOLATES THE PROVISIONS OF SECTION ONE HUNDRED SIXTY-EIGHT-V OF
THIS ARTICLE.
2. FAILURE TO REGISTER, APPEAR AT THE DETERMINATION PROCEEDING, ANNU-
ALLY VERIFY, PERSONALLY VERIFY, NOTIFY OF STATUS AT AN INSTITUTION OF
HIGHER EDUCATION, NOTIFY OF ADDRESS CHANGE OR CHANGE OF STATUS AT AN
INSTITUTION OF HIGHER EDUCATION, NOTIFY OF ESTABLISHMENT OF RESIDENCE IN
STATE, OR COMPLY WITH THE PROHIBITION OF EMPLOYMENT ON MOTOR VEHICLES
ENGAGED IN THE RETAIL SALE OF FROZEN DESSERTS IS a class D felony. [Any
S. 1542 8
sex offender who violates the provisions of section one hundred sixty-
eight-v of this article shall be guilty of a class A misdemeanor upon
conviction for the first offense, and upon conviction for a second or
subsequent offense shall be guilty of a class D felony.]
3. Any such failure [to register or verify] may also be the basis for
revocation of parole pursuant to section two hundred fifty-nine-i of the
executive law or the basis for revocation of probation pursuant to arti-
cle four hundred ten of the criminal procedure law.
S 7. This act shall take effect immediately.