S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  2593

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                            January 26, 2011
                               ___________

Introduced  by Sen. FLANAGAN -- read twice and ordered printed, and when
  printed to be committed to the Committee on Mental Health and Develop-
  mental Disabilities

AN ACT to amend the mental hygiene law, in  relation  to  disclosure  of
  sexual  offender  information  related  to a patient or client, and to
  amend the correction law, in relation to inclusion of certain  persons
  within  the  provisions  of the sex offender registration act who have
  had pleas accepted, or who have had verdicts entered with  respect  to
  them, of not responsible by reason of mental disease or defect

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Paragraph 9 of subdivision (c)  of  section  33.13  of  the
mental  hygiene law is amended by adding a new subparagraph (ix) to read
as follows:
  (IX) APPROPRIATE PERSONS AND ENTITIES PURSUANT TO ARTICLE SIX-C OF THE
CORRECTION LAW, WHEN DISCLOSURE IS LIMITED TO SEXUAL OFFENDER  REGISTRA-
TION INFORMATION NECESSARY TO ENSURE THE WELFARE AND SAFETY OF OTHERS.
  S 2. Subdivision 1 of section 168-a of the correction law, as added by
chapter 192 of the laws of 1995, is amended to read as follows:
  1.  "Sex  offender" includes any person who is convicted of any of the
offenses set  forth  in  subdivision  two  or  three  of  this  section.
Convictions  that  result  from  or  are connected with the same act, or
result from offenses committed at the same time, shall  be  counted  for
the  purpose of this article as one conviction. Any conviction set aside
pursuant to law is not a conviction for purposes of  this  article.  FOR
PURPOSES  OF  THIS  ARTICLE,  THE TERM "SEX OFFENDER" SHALL BE DEEMED TO
INCLUDE A PERSON WHO HAS HAD A CRIMINAL ACTION COMMENCED AGAINST THEM BY
THE FILING OF AN ACCUSATORY INSTRUMENT, A SUPERIOR COURT INFORMATION, OR
INDICTMENT WHICH INCLUDES A CHARGE FOR THE  COMMISSION  OF  ANY  OF  THE
OFFENSES SET FORTH IN SUBDIVISION TWO OR THREE OF THIS SECTION AND, WITH
RESPECT  TO  SUCH  OFFENSE  OR  OFFENSES,  HAS  ENTERED A PLEA, WHICH IS

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD08456-01-1
              

S. 2593                             2

ACCEPTED, OR HAS HAD A VERDICT  ENTERED  AGAINST  SUCH  PERSON,  OF  NOT
RESPONSIBLE  BY  REASON  OF  MENTAL DISEASE OR DEFECT.  ANY SUCH PLEA OR
VERDICT WITH RESPECT TO SUCH OFFENSE OR OFFENSES SHALL BE  CONSIDERED  A
CONVICTION  OF ALL OF THE OFFENSES SO CHARGED, OR THAT REMAIN AS CHARGED
OR OTHERWISE EXIST AT THE TIME OF THE ENTRY OF SUCH PLEA OR VERDICT,  AS
MAY  BE  APPLICABLE,  THAT  FALL WITHIN THE DEFINITION OF SEX OFFENSE OR
SEXUALLY VIOLENT OFFENSE AS SET FORTH IN SUBDIVISION  TWO  OR  THREE  OF
THIS  SECTION  AND  SHALL  BE  DEEMED  TO  BE A CONVICTION FOR ALL OTHER
PURPOSES OF THIS ARTICLE.
  S 3. Paragraph (c) of subdivision 1 of section 168-b of the correction
law, as amended by chapter 11 of the laws of 2002, is amended to read as
follows:
  (c) A description of the  offense  for  which  the  sex  offender  was
convicted, the date of conviction and the sentence imposed. IN THE EVENT
THAT SUCH CONVICTION IS DEEMED TO EXIST FROM THE ENTRY AND ACCEPTANCE OF
A  PLEA,  OR  THE  ENTRY  OF  A VERDICT, OF NOT RESPONSIBLE BY REASON OF
MENTAL DISEASE OR DEFECT AS DESCRIBED IN SUBDIVISION ONE OF SECTION  ONE
HUNDRED  SIXTY-EIGHT-A  OF THIS ARTICLE, THE DATE OF CONVICTION SHALL BE
DEEMED TO BE THE DATE THE PLEA WAS ACCEPTED BY THE COURT, OR THE DATE  A
VERDICT  WAS  ENTERED, OF NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR
DEFECT. IN LIEU OF  A  DESCRIPTION  OF  THE  SENTENCE  IMPOSED  WHERE  A
CONVICTION IS DEEMED TO EXIST AS A RESULT OF SUCH PLEA OR VERDICT, THERE
SHALL  BE  ENTERED  A  DESCRIPTION OF ALL PROCEEDINGS THAT HAVE OCCURRED
PURSUANT TO THE PROVISIONS OF ARTICLE THREE HUNDRED THIRTY OF THE CRIMI-
NAL PROCEDURE LAW.
  S 4. Section 168-d of the correction law, as amended by chapter 11  of
the  laws  of 2002, paragraph (a) of subdivision 1 as amended by chapter
69 of the laws of 2003, paragraph (b) of subdivision  1  as  amended  by
chapter  74 of the laws of 2007, and subdivision 2 as amended and subdi-
vision 4 as added by chapter 684 of the laws of 2005, is amended to read
as follows:
  S 168-d. Duties of the court. 1. (a) Except as provided in  paragraphs
(b)  and (c) of this subdivision, upon conviction of any of the offenses
set forth in subdivision two or three  of  section  one  hundred  sixty-
eight-a of this article the court shall certify that the person is a sex
offender and shall include the certification in the order of commitment,
if any, and judgment of conviction OR IN AN ORDER ISSUED PURSUANT TO THE
PROVISIONS  OF  ARTICLE  THREE  HUNDRED THIRTY OF THE CRIMINAL PROCEDURE
LAW, except as provided in paragraph (e) of subdivision two  of  section
one  hundred  sixty-eight-a of this article. The court shall also advise
the sex offender of his or her duties under  this  article.  Failure  to
include  the certification in the order of commitment [or], the judgment
of conviction, OR IN AN ORDER ISSUED PURSUANT TO THE PROVISIONS OF ARTI-
CLE THREE HUNDRED THIRTY OF THE CRIMINAL PROCEDURE LAW shall not relieve
a sex offender of the obligations imposed by this article.
  (b) Where a defendant stands convicted of an offense defined in  para-
graph  (b)  of  subdivision  two of section one hundred sixty-eight-a of
this article or where the defendant was convicted of patronizing a pros-
titute in the third degree under section 230.04 of the penal law and the
defendant controverts an allegation that the victim of such offense  was
less  than  eighteen  years of age or, in the case of a conviction under
section 230.04 of the penal law, less than seventeen years of  age,  the
court,  without  a  jury, shall, prior to sentencing OR ISSUING AN ORDER
PURSUANT TO THE PROVISIONS OF ARTICLE THREE HUNDRED THIRTY OF THE CRIMI-
NAL PROCEDURE LAW, conduct a hearing, and the people may prove by  clear
and  convincing evidence that the victim was less than eighteen years of

S. 2593                             3

age or less than seventeen years of age, as applicable, by any  evidence
admissible  under the rules applicable to a trial of the issue of guilt.
The court in addition to such  admissible  evidence  may  also  consider
reliable  hearsay evidence submitted by either party provided that it is
relevant to the determination of the age of the victim. Facts concerning
the age of the victim proven at trial or  ascertained  at  the  time  of
entry  of  a  plea  of guilty, OR FACTS CONCERNING THE AGE OF THE VICTIM
ASCERTAINED AT THE TIME A PLEA IS ENTERED,  WHICH  IS  ACCEPTED  BY  THE
COURT,  OR  AT  A TRIAL WHERE VERDICT IS ENTERED AGAINST SUCH PERSON, OF
NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT, shall  be  deemed
established  by  clear  and convincing evidence and shall not be reliti-
gated. At the conclusion of the hearing, or if the  defendant  does  not
controvert  an  allegation  that the victim of the offense was less than
eighteen years of age or less than seventeen years of age,  as  applica-
ble,  the court must make a finding and enter an order setting forth the
age of the victim. If the court finds that the victim  of  such  offense
was  under  eighteen  years  of  age or under seventeen years of age, as
applicable, the court shall certify the defendant as a sex offender, the
provisions of paragraph (a) of this  subdivision  shall  apply  and  the
defendant  shall  register  with  the  division  in  accordance with the
provisions of this article.
  (c) Where a defendant stands convicted of an offense defined in  para-
graph  (c)  of  subdivision  two of section one hundred sixty-eight-a of
this article and  the  defendant  controverts  an  allegation  that  the
defendant  was  previously  convicted  of  a  sex  offense or a sexually
violent offense defined in this article or has previously been convicted
of or convicted for an attempt  to  commit  any  of  the  provisions  of
section  130.52  or  130.55 of the penal law, the court, without a jury,
shall,  prior  to  sentencing  OR  ISSUING  AN  ORDER  PURSUANT  TO  THE
PROVISIONS  OF  ARTICLE  THREE  HUNDRED THIRTY OF THE CRIMINAL PROCEDURE
LAW, conduct a hearing, and the people may prove by clear and convincing
evidence that the defendant was previously convicted of a sex offense or
a sexually violent offense defined in this  article  or  has  previously
been  convicted  of  or  convicted  for  an attempt to commit any of the
provisions of section 130.52 or 130.55 of the penal law, by any evidence
admissible under the rules applicable to a trial of the issue of  guilt.
The  court  in  addition  to  such admissible evidence may also consider
reliable hearsay evidence submitted by either party provided that it  is
relevant  to  the  determination of whether the defendant was previously
convicted of a sex offense or a sexually violent offense defined in this
article or has previously been convicted of or convicted for an  attempt
to commit any of the provisions of section 130.52 or 130.55 of the penal
law.  At  the  conclusion  of  the hearing, or if the defendant does not
controvert an allegation that the defendant was previously convicted  of
a  sex  offense or a sexually violent offense defined in this article or
has previously been convicted of or convicted for an attempt  to  commit
any  of the provisions of section 130.52 or 130.55 of the penal law, the
court must make a finding and enter an  order  determining  whether  the
defendant  was  previously  convicted  of  a  sex  offense or a sexually
violent offense defined in this article or has previously been convicted
of or convicted for an attempt  to  commit  any  of  the  provisions  of
section  130.52  or 130.55 of the penal law. If the court finds that the
defendant has such a previous conviction, the court  shall  certify  the
defendant  as  a  sex  offender, the provisions of paragraph (a) of this
subdivision shall apply and the defendant shall register with the  divi-
sion in accordance with the provisions of this article.

S. 2593                             4

  2.  Any  sex offender, who is released on probation or discharged upon
payment of a fine, conditional discharge or unconditional  discharge  OR
IS  RELEASED  OR  DISCHARGED PURSUANT TO THE PROVISIONS OF ARTICLE THREE
HUNDRED THIRTY OF THE  CRIMINAL  PROCEDURE  LAW  shall,  prior  to  such
release  or  discharge, be informed of his or her duty to register under
this article by the court in which he or she was  convicted  OR  BY  THE
COURT  ISSUING  AN  ORDER  PURSUANT  TO  THE PROVISIONS OF ARTICLE THREE
HUNDRED THIRTY OF THE CRIMINAL PROCEDURE LAW.  At the time  sentence  is
imposed  OR  AT  THE TIME THAT THE COURT ISSUES AN ORDER PURSUANT TO THE
PROVISIONS OF ARTICLE THREE HUNDRED THIRTY  OF  THE  CRIMINAL  PROCEDURE
LAW,  such  sex  offender  shall  register  with  the division on a form
prepared by the division. The court shall require the  sex  offender  to
read and sign such form and to complete the registration portion of such
form.  The  court  shall  on  such form obtain the address where the sex
offender expects to reside upon his or her release,  and  the  name  and
address  of  any institution of higher education he or she expects to be
employed by, enrolled in, attending or  employed,  whether  for  compen-
sation  or  not,  and  whether he or she expects to reside in a facility
owned or operated by such an institution, AND, IF APPLICABLE, A COPY  OF
THE ORDER ISSUED, AND DESCRIPTION OF ALL PROCEEDINGS THAT HAVE OCCURRED,
PURSUANT TO THE PROVISIONS OF ARTICLE THREE HUNDRED THIRTY OF THE CRIMI-
NAL PROCEDURE LAW and shall report such information to the division. The
court shall give one copy of the form to the sex offender and shall send
two  copies  to  the division which shall forward the information to the
law enforcement agencies having jurisdiction. The court shall also noti-
fy the district attorney and the sex offender of the date of the  deter-
mination  proceeding  to  be  held pursuant to subdivision three of this
section, which shall be held at least forty-five days after such  notice
is  given.  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.  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.

S. 2593                             5

  3. For sex offenders released on probation or discharged upon  payment
of a fine, conditional discharge or unconditional discharge, OR RELEASED
OR DISCHARGED PURSUANT TO THE PROVISIONS OF ARTICLE THREE HUNDRED THIRTY
OF  THE CRIMINAL PROCEDURE LAW, it shall be the duty of the court apply-
ing  the  guidelines  established  in  subdivision  five  of section one
hundred sixty-eight-l of this article to determine the level of  notifi-
cation  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 fifteen days prior to the determination  proceed-
ing, the district attorney shall provide to the court and the sex offen-
der  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
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 OR PREVIOUSLY ELICITED AT THE TIME  A  PLEA  IS  ENTERED,
WHICH IS ACCEPTED BY THE COURT, OR ARE PROVEN AT A TRIAL WHERE A VERDICT
HAS  BEEN  ENTERED,  OF  NOT  RESPONSIBLE BY REASON OF MENTAL DISEASE OR
DEFECT 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 submit-
ted  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.
  4. If a sex offender, having been given notice, including the time and
place  of  the determination proceeding in accordance with this section,
fails to appear at this 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  5.  Section  29.16 of the mental hygiene law, as amended by chapter
465 of the laws of 1992, is amended to read as follows:
S 29.16 Discharge OR RELEASE; certain cases.
  (A) The director of a facility shall,  with  respect  to  any  patient
admitted  to  such facility pursuant to section five hundred nine of the

S. 2593                             6

executive law or 353.4 of the family  court  act  and  article  nine  or
fifteen  of this chapter, give immediate written notice to the [director
of the division for youth] OFFICE OF CHILDREN AND FAMILY SERVICES and to
the mental hygiene legal service when any such patient leaves the facil-
ity  without  the  consent  of  its  director. Such patient shall not be
discharged so long as there is a valid order of the family court placing
such person with the [division for youth] OFFICE OF CHILDREN AND  FAMILY
SERVICES,  except  in  accordance  with  the  provisions of section five
hundred nine of the executive law or section 353.4 of the  family  court
act.
  (B)  NOTWITHSTANDING  ANY  PROVISIONS OF LAW TO THE CONTRARY, PRIOR TO
THE DISCHARGE OR RELEASE, INCLUDING A  COURT  ORDERED  RELEASE,  FROM  A
DEPARTMENT  FACILITY  OF  A  PATIENT  WHO  IS A SEX OFFENDER REQUIRED TO
REGISTER PURSUANT TO ARTICLE SIX-C OF THE CORRECTION LAW,  THE  DIRECTOR
OF  A  FACILITY  SHALL CONTACT THE DIVISION OF CRIMINAL JUSTICE SERVICES
(HEREIN THE "DIVISION") TO DETERMINE WHETHER OR  NOT  SUCH  PATIENT  HAS
REGISTERED A CHANGE OF ADDRESS PURSUANT TO THE PROVISIONS OF SUBDIVISION
FOUR  OF SECTION ONE HUNDRED SIXTY-EIGHT-F OF THE CORRECTION LAW. IN THE
EVENT THAT THE DIRECTOR DETERMINES  THAT  SUCH  PATIENT  HAS  FAILED  TO
PROVIDE  THE  DIVISION  WITH THE NOTIFICATION OF CHANGE OF ADDRESS WHICH
WILL PROVIDE THE DIVISION WITH THE PATIENT'S INTENDED NEW ADDRESS  WHICH
WILL TAKE EFFECT UPON SUCH DISCHARGE OR RELEASE, THE DIRECTOR IMMEDIATE-
LY  SHALL NOTIFY THE PATIENT AND THE MENTAL HYGIENE LEGAL SERVICE OF THE
REQUIREMENTS OF  REGISTERING  A  CHANGE  OF  ADDRESS  PURSUANT  TO  SUCH
PROVISIONS  OF  THE  CORRECTION  LAW.  NOTWITHSTANDING THE PROVISIONS OF
SECTION ONE HUNDRED SIXTY-EIGHT-F OF THE CORRECTION LAW, THE DIRECTOR OF
A FACILITY IS AUTHORIZED TO DELAY THE IMPLEMENTATION OF THE DISCHARGE OR
RELEASE, INCLUDING A COURT ORDERED RELEASE, OF SUCH PATIENT FOR A PERIOD
OF UP TO TEN DAYS OR UNTIL THE DATE THAT SUCH PATIENT COMPLIES WITH  THE
REGISTRATION  REQUIREMENTS  OF  SUCH  PROVISIONS  OF THE CORRECTION LAW,
WHICHEVER OCCURS FIRST.
  S 6. Section 29.17 of the mental hygiene law is  amended  to  read  as
follows:
S 29.17 Clothing  and  money  to  be  furnished  patients  discharged or
          released.
  No patient shall be discharged or released from a department  facility
without  suitable  clothing  adapted to the season in which he OR SHE is
discharged or released; and if it  cannot  be  otherwise  obtained,  the
facility  shall  upon the order of the director, or of the commissioner,
as the case may be, furnish the same,  and  money  not  exceeding  fifty
dollars,  to defray his OR HER expenses until he OR SHE can reach his OR
HER relatives or friends, or find employment to earn a subsistence.  THE
FACILITY, UPON THE ORDER OF THE DIRECTOR, OR OF THE COMMISSIONER, AS THE
CASE  MAY  BE,  SHALL  FURNISH  A  PATIENT, WHO IS A SEX OFFENDER AND IS
REQUIRED TO REGISTER A CHANGE OF ADDRESS PURSUANT TO SUBDIVISION FOUR OF
SECTION ONE HUNDRED SIXTY-EIGHT-F OF THE CORRECTION LAW, WITH MONEY,  IN
AN AMOUNT EQUAL TO THE STATUTORY AMOUNT CHARGED BY THE DIVISION OF CRIM-
INAL  JUSTICE  SERVICES  TO DEFRAY THE EXPENSE OF REGISTERING HIS OR HER
CHANGE OF ADDRESS WITH THE DIVISION, AT OR PRIOR TO  THE  DATE  OF  SUCH
DISCHARGE OR RELEASE.
  S  7.  Paragraph a of subdivision 2 of section 168-b of the correction
law, as amended by chapter 645 of the laws of 2005, is amended  to  read
as follows:
  a.  The  division  is authorized to make the registry available to any
regional or national registry of sex offenders for the purpose of  shar-
ing  information  OR TO THE COMMISSIONER OF MENTAL HEALTH OR THE COMMIS-

S. 2593                             7

SIONER OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES.  The  divi-
sion  shall  accept  files from any regional or national registry of sex
offenders and shall make such files available when requested pursuant to
the provisions of this article.
  S 8. This act shall take effect on the one hundred eightieth day after
it shall have become a law.