Assembly Bill A4873

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

                                  4873

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                            February 12, 2013
                               ___________

Introduced  by M. of A. O'DONNELL, AUBRY, TITONE, LENTOL, CUSICK -- read
  once and referred to the Committee on Correction

AN ACT to amend the correction law, the penal law, the executive law and
  the criminal procedure law,  in  relation  to  establishing  residency
  restrictions for sex offenders

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

  Section 1. Paragraph (f) of subdivision 1  of  section  168-b  of  the
correction  law,  as  relettered  by  chapter 10 of the laws of 2003, is
relettered paragraph (g) and a new paragraph (f) is  added  to  read  as
follows:
  (F)  IF THE SEX OFFENDER HAS BEEN GIVEN A LEVEL 2 OR 3 DESIGNATION AND
STANDS CONVICTED OF A FELONY WHICH  REQUIRES  REGISTRATION  PURSUANT  TO
THIS   ARTICLE,   WHETHER  SUCH  OFFENDER  IS  SUBJECT  TO  A  RESIDENCY
RESTRICTION PURSUANT TO SECTION ONE HUNDRED SIXTY-EIGHT-W OF THIS  ARTI-
CLE.
  S  2.  Section  168-b of the correction law is amended by adding a new
subdivision 13 to read as follows:
  13. THE DIVISION, UPON INITIAL REGISTRATION AND THEREAFTER  IN  ANNUAL
CORRESPONDENCE  AS  REQUIRED  BY SUBDIVISION FOUR OF THIS SECTION, SHALL
ADVISE EACH SEX OFFENDER WHO  IS  SUBJECT  TO  A  RESIDENCY  RESTRICTION
PURSUANT  TO SECTION ONE HUNDRED SIXTY-EIGHT-W OF THIS ARTICLE, CONCERN-
ING THE TERM'S SPECIFIC DURATION AND THE ACCURATE  TERMINATION  DATE  OF
SUCH RESTRICTION.
  S  3.  Subdivisions  2  and  3 of section 168-d of the correction law,
subdivision 2 as amended by chapter 684 of the laws of 2005 and subdivi-
sion 3 as amended by chapter 11 of the laws of 2002, are amended to read
as follows:
  2. Any sex offender, who is released on probation or  discharged  upon
payment  of  a  fine,  conditional  discharge or unconditional discharge
shall, prior to such release or discharge, be informed  of  his  or  her

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD05948-01-3
              

A. 4873                             2

duty  to register under this article by the court in which he or she was
convicted. At the time sentence is  imposed,  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 high-
er education he or she expects to be employed by, enrolled in, attending
or employed, whether for compensation or not,  and  whether  he  or  she
expects  to  reside  in a facility owned or operated by such an institu-
tion, 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 enforce-
ment agencies having jurisdiction.  The  court  shall  also  notify  the
district  attorney and the sex offender of the date of the determination
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 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.    IF YOU ARE CLASSIFIED AS A LEVEL 2 OR
LEVEL 3 OFFENDER FOR A FELONY SEX OFFENSE, THE COURT MAY ALSO  DETERMINE
WHETHER  YOU  WILL  BE  SUBJECT  TO  A  RESIDENCY  RESTRICTION WHICH MAY
RESTRICT WHERE YOU CAN ESTABLISH YOUR PERMANENT RESIDENCE. 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 eigh-
teen-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 requirements of this article. Where such sex offen-
der violates such provision, probation may be immediately revoked in the
manner provided by article four hundred ten of  the  criminal  procedure
law.
  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

A. 4873                             3

predicate sex offender as defined in subdivision seven  of  section  one
hundred sixty-eight-a of this article AND, WHEN DETERMINING THE LEVEL OF
NOTIFICATION  AND  APPLYING  THE  GUIDELINES  ESTABLISHED IN SUBDIVISION
FIVE-A  OF  SECTION ONE HUNDRED SIXTY-EIGHT-L OF THIS ARTICLE, WHETHER A
SEX OFFENDER, CLASSIFIED AS A LEVEL 2 OR LEVEL  3  OFFENDER  WHO  STANDS
CONVICTED OF A FELONY WHICH REQUIRES REGISTRATION PURSUANT TO THIS ARTI-
CLE,  WILL BE SUBJECT TO A RESIDENCY RESTRICTION PURSUANT TO SECTION ONE
HUNDRED SIXTY-EIGHT-W 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.
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.
  S  4. 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

A. 4873                             4

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
AND,  WHEN DETERMINING THE LEVEL OF NOTIFICATION AND APPLYING THE GUIDE-
LINES  ESTABLISHED  IN  SUBDIVISION  FIVE-A  OF  SECTION   ONE   HUNDRED
SIXTY-EIGHT-L  OF  THIS ARTICLE, WHETHER A SEX OFFENDER, CLASSIFIED AS A
LEVEL 2 OR LEVEL 3 OFFENDER WHO  STANDS  CONVICTED  OF  A  FELONY  WHICH
REQUIRES  REGISTRATION  PURSUANT  TO  THIS ARTICLE, WILL BE SUBJECT TO A
RESIDENCY RESTRICTION PURSUANT TO SECTION ONE HUNDRED  SIXTY-EIGHT-W  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 AND, WHEN DETERMINING
THE LEVEL OF NOTIFICATION AND APPLYING  THE  GUIDELINES  ESTABLISHED  IN
SUBDIVISION FIVE-A OF SECTION ONE HUNDRED SIXTY-EIGHT-L OF THIS ARTICLE,
WHETHER  A SEX OFFENDER, CLASSIFIED AS A LEVEL 2 OR LEVEL 3 OFFENDER WHO
STANDS CONVICTED OF A FELONY WHICH  REQUIRES  REGISTRATION  PURSUANT  TO
THIS  ARTICLE,  WILL  BE  SUBJECT TO A RESIDENCY RESTRICTION PURSUANT TO
SECTION ONE HUNDRED SIXTY-EIGHT-W 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 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. IF YOU ARE CLASSI-
FIED AS A LEVEL 2 OR LEVEL 3 OFFENDER FOR  A  FELONY  SEX  OFFENSE,  THE
COURT  MAY  ALSO  DETERMINE  WHETHER  YOU WILL BE SUBJECT TO A RESIDENCY
RESTRICTION WHICH MAY RESTRICT WHERE YOU CAN  ESTABLISH  YOUR  PERMANENT
RESIDENCE.  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

A. 4873                             5

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 determi-
nations 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 AND, WHEN  DETERMINING
THE  LEVEL  OF  NOTIFICATION  AND APPLYING THE GUIDELINES ESTABLISHED BY
SUBDIVISION FIVE-A OF SECTION ONE HUNDRED SIXTY-EIGHT-L OF THIS ARTICLE,
WHETHER A SEX OFFENDER, CLASSIFIED AS A LEVEL 2 OR LEVEL 3 OFFENDER  WHO
STANDS  CONVICTED  OF  A  FELONY WHICH REQUIRES REGISTRATION PURSUANT TO
THIS ARTICLE, WILL BE SUBJECT TO A  RESIDENCY  RESTRICTION  PURSUANT  TO
SECTION  ONE  HUNDRED  SIXTY-EIGHT-W  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
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

A. 4873                             6

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  5.  Section  168-l of the correction law is amended by adding a new
subdivision 5-a to read as follows:
  5-A. THE BOARD SHALL  DEVELOP  GUIDELINES  AND  PROCEDURES  TO  ASSESS
WHETHER TO RECOMMEND THAT A SEX OFFENDER WHO STANDS CONVICTED OF A FELO-
NY  SHOULD BE SUBJECT TO A RESIDENCY RESTRICTION AS DESCRIBED IN SECTION
ONE HUNDRED SIXTY-EIGHT-W OF THIS ARTICLE. SUCH GUIDELINES SHALL INCLUDE
THE FOLLOWING:
  (A)  WHETHER  A  RESIDENCY  RESTRICTION  WOULD  ADVERSELY  IMPACT  THE
OFFENDER'S SUCCESSFUL REENTRY AND REINTEGRATION INTO SOCIETY;
  (B)  WHETHER  A  RESIDENCY  RESTRICTION  IS  NECESSARY,  BASED  ON THE
OFFENDER'S CURRENT BEHAVIOR AND PRESENT AND PROSPECTIVE LIVING  ARRANGE-
MENTS TO PROTECT PUBLIC SAFETY;
  (C) THE ABILITY OF THE OFFENDER TO OBTAIN PERMANENT AND STABLE HOUSING
IN ORDER TO REDUCE THE LIKELIHOOD THAT THE OFFENDER WILL BE TRANSIENT;
  (D)  THE  ACCESSIBILITY  TO  SUPPORTIVE  SERVICES,  INCLUDING, BUT NOT
LIMITED TO, LOCALLY AVAILABLE SEX OFFENDER TREATMENT PROGRAMS THAT  HAVE
DEMONSTRATED  EFFECTIVENESS  IN  REDUCING  SEX  OFFENDER  RECIDIVISM AND
INCREASING PUBLIC SAFETY;
  (E) THE ABILITY OF THE OFFENDER TO FIND GAINFUL AND STABLE EMPLOYMENT;
AND
  (F) WHETHER THE OFFENSE THAT REQUIRES THE OFFENDER TO REGISTER  PURSU-
ANT TO THIS ARTICLE WAS COMMITTED AGAINST A MINOR CHILD.
  S  6.  The  opening paragraph of subdivision 6 of section 168-1 of the
correction law, as amended by chapter 11 of the laws of 2002, is amended
to read as follows:
  Applying [these] THE guidelines ESTABLISHED  IN  SUBDIVISION  FIVE  OF
THIS  SECTION,  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  ESTABLISHED  IN SUBDIVISION FIVE OF THIS
SECTION 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 DESCRIBED IN PARAGRAPHS (A), (B), AND (C) OF THIS SUBDI-
VISION depending upon the degree of the risk of re-offense  by  the  sex
offender. FURTHER, WHEN THE BOARD MAKES A RECOMMENDATION TO THE SENTENC-
ING  COURT  THAT  A  SEX  OFFENDER BE CLASSIFIED AS A LEVEL 2 OR LEVEL 3
OFFENDER AND SUCH OFFENDER STANDS CONVICTED OF A FELONY  WHICH  REQUIRES
REGISTRATION  PURSUANT  TO  THIS ARTICLE, THE BOARD SHALL ALSO APPLY THE
GUIDELINES ESTABLISHED IN SUBDIVISION FIVE-A OF  THIS  SECTION  AND  MAY
MAKE  A RECOMMENDATION REGARDING WHETHER SUCH OFFENDER SHOULD BE SUBJECT
TO  A  RESIDENCY  RESTRICTION  AS  DESCRIBED  IN  SECTION  ONE   HUNDRED
SIXTY-EIGHT-W OF THIS ARTICLE.
  S  7. Subdivision 7 of section 168-l of the correction law, as amended
by chapter 11 of the laws of 2002, is amended to read as follows:
  7. Upon request by the court, pursuant to section one  hundred  sixty-
eight-o  of  this  article,  the  board  shall provide an updated report
pertaining to the sex offender petitioning for relief  of  the  duty  to
register [or], for a modification of his or her level of notification OR

A. 4873                             7

FOR  MODIFICATION  OR  TERMINATION OF A RESIDENCY RESTRICTION IMPOSED BY
THE SENTENCING COURT.
  S  8.  Subdivisions  2  and  3 of section 168-n of the correction law,
subdivision 2 as amended by chapter 453 of the laws of 1999 and subdivi-
sion 3 as amended by chapter 684 of the laws of  2005,  are  amended  to
read as follows:
  2.  In  addition,  applying  the guidelines established in subdivision
five of section one hundred sixty-eight-l of this article, the  sentenc-
ing  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] FURTHER,
WHEN THE COURT CLASSIFIES A SEX OFFENDER AS A LEVEL 2 OR LEVEL 3  OFFEN-
DER AND SUCH OFFENDER STANDS CONVICTED OF A FELONY WHICH REQUIRES REGIS-
TRATION PURSUANT TO THIS ARTICLE AND THE BOARD HAS RECOMMENDED THAT SUCH
OFFENDER  BE  SUBJECT  TO A RESIDENCY RESTRICTION, THE COURT SHALL APPLY
THE GUIDELINES ESTABLISHED IN SUBDIVISION FIVE-A OF SECTION ONE  HUNDRED
SIXTY-EIGHT-L  OF  THIS ARTICLE AND MAKE A DETERMINATION WITH RESPECT TO
WHETHER SUCH OFFENDER SHALL BE SUBJECT TO  A  RESIDENCY  RESTRICTION  IN
ACCORDANCE  WITH  SECTION ONE HUNDRED SIXTY-EIGHT-W OF THIS ARTICLE. ALL
determinations of the sentencing court PURSUANT TO THIS SECTION shall be
made thirty calendar days prior to discharge, parole or release.
  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 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 ARE CLASSIFIED AS A LEVEL 2 OR LEVEL 3 OFFENDER FOR A FELONY SEX
OFFENSE, THE COURT MAY ALSO DETERMINE WHETHER YOU WILL BE SUBJECT  TO  A
RESIDENCY  RESTRICTION  WHICH  MAY RESTRICT WHERE YOU CAN ESTABLISH YOUR
PERMANENT RESIDENCE. 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 coun-
sel has been assigned to represent the  offender  at  the  determination

A. 4873                             8

proceeding,  the  notice  shall also provide the name, address and tele-
phone number of  the  assigned  counsel.  Where  counsel  has  not  been
assigned,  the notice shall advise the sex offender that counsel will be
appointed  if  he  or she is financially unable to retain counsel, 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
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.
  S  9.  The  section heading of section 168-o of the correction law, as
amended by chapter 453 of the laws of 1999, is amended and a new  subdi-
vision 2-a is added to read as follows:
  Petition  for  relief  or modification OF LEVEL OF NOTIFICATION AND/OR
RESIDENCY RESTRICTION.
  2-A. ANY SEX OFFENDER SUBJECT TO A RESIDENCY RESTRICTION  PURSUANT  TO
THIS  ARTICLE  MAY PETITION THE COURT WHICH IMPOSED SUCH RESTRICTION FOR
AN ORDER TERMINATING OR MODIFYING SUCH RESIDENCY RESTRICTION. THE  PETI-
TION SHALL SET FORTH THE REASONS FOR SEEKING SUCH MODIFICATION OR TERMI-
NATION.    THE  SEX  OFFENDER SHALL BEAR THE BURDEN OF PROVING THE FACTS

A. 4873                             9

SUPPORTING THE  REQUESTED  MODIFICATION  OR  TERMINATION  BY  CLEAR  AND
CONVINCING  EVIDENCE.  SUCH A PETITION SHALL NOT BE CONSIDERED MORE THAN
ANNUALLY. THE DISTRICT ATTORNEY AND THE SEX OFFENDER MAY  APPEAL  AS  OF
RIGHT  FROM  AN  ORDER  ISSUED  UNDER  THIS  SUBDIVISION 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 REPRE-
SENT THE SEX  OFFENDER UPON THE GROUND THAT THE SEX OFFENDER  IS  FINAN-
CIALLY  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  10.  Section 168-o of the correction law is amended by adding a new
subdivision 3-a to read as follows:
  3-A. PRIOR TO THE EXPIRATION OF A RESIDENCY RESTRICTION ORDERED PURSU-
ANT TO SECTION ONE HUNDRED SIXTY-EIGHT-W OF THIS ARTICLE,  THE  DISTRICT
ATTORNEY MAY FILE A PETITION WITH THE SENTENCING COURT OR WITH THE COURT
WHICH  ORDERED  THE RESIDENCY RESTRICTION TO EXTEND THE DURATION OF SUCH
RESIDENCY RESTRICTION IN ACCORDANCE WITH SUBDIVISION FOUR OF SECTION ONE
HUNDRED SIXTY-EIGHT-W OF THIS ARTICLE. THE PETITION SHALL SET FORTH  THE
REASONS   FOR   SEEKING   TO  EXTEND  THE  DURATION  OF  SUCH  RESIDENCY
RESTRICTION.  THE DISTRICT ATTORNEY SHALL BEAR THE BURDEN OF PROVING NEW
FACTS AND CIRCUMSTANCES THAT WARRANT THE REQUESTED EXTENSION,  BY  CLEAR
AND CONVINCING EVIDENCE. IN THE EVENT THAT THE DISTRICT ATTORNEY'S PETI-
TION IS GRANTED, THE SEX OFFENDER 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  OFFENDER UPON THE GROUND THAT HE OR SHE IS
FINANCIALLY UNABLE TO RETAIN COUNSEL, THAT ASSIGNMENT SHALL BE CONTINUED
THROUGHOUT THE PENDENCY OF THE APPEAL, AND THE PERSON MAY PROCEED  AS  A
POOR PERSON, PURSUANT TO ARTICLE EIGHTEEN-B OF THE COUNTY LAW.
  S  11.  Subdivision 4 of section 168-o of the correction law, as added
by chapter 453 of the laws of 1999, is amended to read as follows:
  4. Upon receipt of a petition submitted pursuant to  subdivision  one,
two  [or],  TWO-A,  three,  OR  THREE-A of this section, the court shall
forward a copy of the petition to  the  board  and  request  an  updated
recommendation  pertaining  to the sex offender and shall provide a copy
of the petition to the other party.  The court shall also advise the sex
offender that he or she has the right to be represented  by  counsel  at
the  hearing  and  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
offender,  pursuant  to  article eighteen-B of the county law. Where the
petition was filed by a district attorney, at least thirty days prior to
making an updated recommendation the board shall notify the sex offender
and his or her counsel that the offender's case is under review  and  he
or  she  is permitted to submit to the board any information relevant to
the review.   The board's updated recommendation  on  the  sex  offender
shall  be confidential and shall not be available for public inspection.
After receiving an updated recommendation from the  board  concerning  a
sex offender, the court shall, at least thirty days prior to ruling upon
the  petition,  provide  a copy of the updated recommendation to the sex
offender, the sex offender's counsel and the district attorney and noti-
fy them, in writing, of the date set by the court for a hearing  on  the
petition. After reviewing the recommendation received from the board and

A. 4873                            10

any  relevant  materials  and evidence submitted by the sex offender and
the district attorney, the court may grant or  deny  the  petition.  The
court  may  also consult with the victim prior to making a determination
on  the  petition.  The  court  shall  render an order setting forth its
determination, and the findings of fact and conclusions of law on  which
the  determination is based. If the petition is granted, it shall be the
obligation of the court to submit a copy of its order 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.
  S  12.  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. 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  guilty  of  a class E felony upon conviction for the
first offense, and upon conviction for a second  or  subsequent  offense
shall  be  guilty of a class D felony. Any sex offender who violates the
provisions of section one hundred sixty-eight-v of this article OR KNOW-
INGLY VIOLATES A RESIDENCY RESTRICTION IMPOSED PURSUANT TO  SECTION  ONE
HUNDRED  SIXTY-EIGHT-W  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.
Any such failure to register or verify may also be the basis for revoca-
tion of parole pursuant to section two hundred fifty-nine-i of the exec-
utive law or the basis for revocation of probation pursuant  to  article
four hundred ten of the criminal procedure law.
  S  13.  Section  168-w of the correction law, as relettered by chapter
604 of the laws of 2005, is relettered section 168-x and a  new  section
168-w is added to read as follows:
  S 168-W. RESIDENCY RESTRICTION FOR CERTAIN SEX OFFENDERS. 1.  PURSUANT
TO  SUBDIVISION  THREE OF SECTION ONE HUNDRED SIXTY-EIGHT-D, SUBDIVISION
TWO OF SECTION ONE HUNDRED SIXTY-EIGHT-K AND SUBDIVISION TWO OF  SECTION
ONE  HUNDRED  SIXTY-EIGHT-N  OF THIS ARTICLE, WHEN THE COURT WHICH MAKES
THE DETERMINATION REGARDING THE LEVEL OF NOTIFICATION OF A SEX  OFFENDER
CLASSIFIES  SUCH  OFFENDER  AS  A  LEVEL  2 OR LEVEL 3 OFFENDER AND SUCH
OFFENDER WAS CONVICTED OF A FELONY WHICH REQUIRES REGISTRATION  PURSUANT
TO  THIS  ARTICLE  AND, WHERE APPLICABLE, THE BOARD HAS RECOMMENDED THAT
SUCH OFFENDER BE SUBJECT TO A RESIDENCY RESTRICTION, THE COURT MAY ORDER
THAT SUCH OFFENDER COMPLY WITH A RESIDENCY RESTRICTION ACCORDING TO THIS
SECTION. SUCH RESIDENCY RESTRICTION MAY BE IMPOSED ONLY AFTER THE  COURT
HAS  APPLIED THE GUIDELINES ESTABLISHED IN SUBDIVISION FIVE-A OF SECTION
ONE HUNDRED SIXTY-EIGHT-L OF THIS ARTICLE.
  2. WHEN THE COURT DETERMINES THAT A RESIDENCY RESTRICTION IS NECESSARY
PURSUANT TO THE PROVISIONS OF THIS ARTICLE, THE COURT MAY ORDER THAT THE
SEX OFFENDER BE PROHIBITED FROM KNOWINGLY ESTABLISHING HIS OR HER PERMA-
NENT RESIDENCE WITHIN UP TO ONE THOUSAND FEET OF ANY SCHOOL GROUNDS,  AS
THE  TERM IS DEFINED IN PARAGRAPH (A) OF SUBDIVISION FOURTEEN OF SECTION
220.00 OF THE PENAL LAW. FOR THE PURPOSES OF THIS SUBDIVISION, THE  TERM
PERMANENT  RESIDENCE SHALL MEAN THE PLACE WHERE THE OFFENDER MAINTAINS A
FIXED, PERMANENT AND PRINCIPAL HOME AND TO WHICH  HE  OR  SHE,  WHENEVER
TEMPORARILY  AWAY,  INTENDS  TO  RETURN.  PERMANENT  RESIDENCE SHALL NOT
INCLUDE TEMPORARY OR TRANSITIONAL HOUSING SUCH AS A SHELTER, RESIDENTIAL
TREATMENT PROGRAM, OR OTHER SIMILAR TEMPORARY OR TRANSIENT HOUSING.
  3. THE COURT SHALL DETERMINE THE DURATION OF THE RESIDENCY RESTRICTION
IMPOSED  PURSUANT  TO  THIS  SECTION  PROVIDED,   HOWEVER,   THAT   SUCH

A. 4873                            11

RESTRICTION  SHALL  NOT APPLY FOR MORE THAN TEN YEARS AFTER THE LATER OF
THE OFFENDER'S RELEASE FROM JAIL OR PRISON OR  THE  PERIOD  OR  TERM  OF
PROBATION,  PAROLE,  CONDITIONAL RELEASE OR POST-RELEASE SUPERVISION FOR
THE  OFFENSE  WHICH  REQUIRES THE OFFENDER TO REGISTER AS A SEX OFFENDER
PURSUANT TO THIS ARTICLE. IN CALCULATING THE DURATION OF  THE  RESIDENCY
RESTRICTION, ANY PERIOD OF TIME DURING WHICH THE OFFENDER IS INCARCERAT-
ED  FOR  ANY REASON AFTER SUCH RESIDENCY RESTRICTION IS ORDERED SHALL BE
EXCLUDED AND THE DURATION OF THE RESTRICTION  SHALL  BE  EXTENDED  BY  A
PERIOD OR PERIODS EQUAL TO THE TIME OF SUCH INCARCERATION.
  4.  WHERE THE COURT HAS GRANTED A PETITION TO EXTEND THE DURATION OF A
RESIDENCY RESTRICTION PURSUANT  TO  SUBDIVISIONS  THREE-A  AND  FOUR  OF
SECTION ONE HUNDRED SIXTY-EIGHT-O OF THIS ARTICLE, SUCH EXTENSION MAY BE
FOR A PERIOD OF UP TO FIVE YEARS.
  S  14.  Paragraph (a) of subdivision 4-a of section 65.10 of the penal
law, as amended by chapter 67 of the laws of 2008, is amended to read as
follows:
  (a) When imposing a sentence of  probation  or  conditional  discharge
upon  a  person  convicted  of an offense defined in article one hundred
thirty, two hundred thirty-five or two hundred sixty-three of this chap-
ter, or section 255.25, 255.26 or 255.27 of this chapter, and the victim
of such offense was under the age  of  eighteen  at  the  time  of  such
offense  or  such  person has been designated a level three sex offender
pursuant to subdivision six of section [168-l] ONE HUNDRED SIXTY-EIGHT-L
of the correction law, the court shall require, as a mandatory condition
of such sentence, that such sentenced offender shall refrain from  know-
ingly  entering into or upon any school grounds, as that term is defined
in PARAGRAPH (A) OF subdivision fourteen of section 220.00 of this chap-
ter, or any other facility or institution primarily used for the care or
treatment of persons under the age of eighteen while one or more of such
persons under the age of eighteen are present,  provided  however,  that
when  such  sentenced offender is a registered student or participant or
an employee of such facility or institution or entity contracting there-
with or has a family member enrolled in such  facility  or  institution,
such  sentenced  offender  may, with the written authorization of his or
her probation officer or the  court  and  the  superintendent  or  chief
administrator  of  such  facility,  institution  or  grounds, enter such
facility, institution or upon such  grounds  for  the  limited  purposes
authorized  by  the probation officer or the court and superintendent or
chief officer.  Nothing  in  this  subdivision  shall  be  construed  as
restricting  any  lawful condition of supervision that may be imposed on
such sentenced offender.
  S 15. Subdivision 14 of section 259-c of the executive law, as amended
by section 38-b of subpart A of part C of chapter  62  of  the  laws  of
2011, is amended to read as follows:
  14.  notwithstanding any other provision of law to the contrary, where
a person serving a sentence  for  an  offense  defined  in  article  one
hundred  thirty,  one  hundred thirty-five or two hundred sixty-three of
the penal law or section 255.25, 255.26 or 255.27 of the penal  law  and
the  victim of such offense was under the age of eighteen at the time of
such offense or such person has been designated a level three sex offen-
der pursuant to subdivision six of section one hundred sixty-eight-l  of
the  correction  law,  is  released  on parole or conditionally released
pursuant to subdivision one or two of  this  section,  the  board  shall
require,  as  a mandatory condition of such release, that such sentenced
offender shall refrain from knowingly entering into or upon  any  school
grounds,  as  that term is defined in PARAGRAPH (A) OF subdivision four-

A. 4873                            12

teen of section 220.00 of the penal law, or any other facility or insti-
tution primarily used for the care or treatment of persons under the age
of eighteen while one or more of such persons under the age of  eighteen
are  present,  provided  however, that when such sentenced offender is a
registered student or participant or an employee  of  such  facility  or
institution  or  entity  contracting  therewith  or  has a family member
enrolled in such facility or institution, such sentenced  offender  may,
with  the  written  authorization  of  his or her parole officer and the
superintendent or chief administrator of such facility,  institution  or
grounds,  enter  such facility, institution or upon such grounds for the
limited purposes authorized by the parole officer and superintendent  or
chief  officer.    Nothing  in  this  subdivision  shall be construed as
restricting any lawful condition of supervision that may be  imposed  on
such sentenced offender.
  S  16. The opening paragraph of subdivision 4 of section 530.13 of the
criminal procedure law, as amended by section 3 of chapter 9 of the laws
of 2011, is amended to read as follows:
  Upon sentencing on a conviction for any offense, where the  court  has
not  issued  an  order  of protection pursuant to section 530.12 of this
article, the court may, in addition to any other disposition,  including
a  conditional  discharge  or  youthful  offender adjudication, enter an
order of protection. Where a temporary order of protection  was  issued,
the court shall state on the record the reasons for issuing or not issu-
ing an order of protection. The duration of such an order shall be fixed
by  the  court  and;  (A)  in the case of a felony conviction, shall not
exceed the greater of: (i) eight years from the date of such sentencing,
or (ii) eight years from the date of the expiration of the maximum  term
of  an  indeterminate or the term of a determinate sentence of imprison-
ment actually imposed; or (B) in the case of a conviction for a class  A
misdemeanor,  shall  not  exceed the greater of: (i) five years from the
date of such sentencing, or (ii) five years from the date of the expira-
tion of the maximum term of a definite  or  intermittent  term  actually
imposed; or (C) in the case of a conviction for any other offense, shall
not exceed the greater of: (i) two years from the date of sentencing, or
(ii)  two years from the date of the expiration of the maximum term of a
definite or intermittent term actually imposed, PROVIDED, HOWEVER,  THAT
IN  THE  CASE OF A CONVICTION FOR AN OFFENSE FOR WHICH REGISTRATION AS A
SEX OFFENDER IS REQUIRED PURSUANT TO SUBDIVISION TWO OR THREE OF SECTION
ONE HUNDRED SIXTY-EIGHT-A OF THE CORRECTION LAW, AND THE VICTIM OF  SUCH
OFFENSE  WAS  UNDER THE AGE OF EIGHTEEN AT THE TIME OF SUCH OFFENSE, THE
DURATION OF AN ORDER OF PROTECTION ISSUED PURSUANT TO  THIS  SUBDIVISION
MAY  BE,  BUT  SHALL  NOT EXCEED, THE GREATER OF THE APPLICABLE DURATION
PROVIDED FOR IN THE FOREGOING PROVISIONS OF THIS  SUBDIVISION  OR  UNTIL
THE  VICTIM OF SUCH OFFENSE ATTAINS THE AGE OF EIGHTEEN. For purposes of
determining the duration of an order of protection entered  pursuant  to
this  subdivision,  a conviction shall be deemed to include a conviction
that has been replaced by a youthful offender adjudication.  In addition
to any other conditions such an order may require that the defendant:
  S 17. The opening paragraph of subdivision 4 of section 530.13 of  the
criminal procedure law, as amended by section 4 of chapter 9 of the laws
of 2011, is amended to read as follows:
  Upon  sentencing  on a conviction for any offense, where the court has
not issued an order of protection pursuant to  section  530.12  of  this
article,  the court may, in addition to any other disposition, including
a conditional discharge or  youthful  offender  adjudication,  enter  an
order  of  protection. Where a temporary order of protection was issued,

A. 4873                            13

the court shall state on the record the reasons for issuing or not issu-
ing an order of protection. The duration of such an order shall be fixed
by the court and, in the case of a felony conviction, shall  not  exceed
the greater of: (i) five years from the date of such sentencing, or (ii)
three  years  from  the date of the expiration of the maximum term of an
indeterminate sentence of imprisonment actually imposed; or in the  case
of  a conviction for a class A misdemeanor, shall not exceed three years
from the date of such sentencing; or in the case of a conviction for any
other offense, shall not exceed one year from the  date  of  sentencing,
PROVIDED,  HOWEVER,  THAT IN THE CASE OF A CONVICTION FOR AN OFFENSE FOR
WHICH REGISTRATION AS A SEX OFFENDER IS REQUIRED PURSUANT TO SUBDIVISION
TWO OR THREE OF SECTION ONE HUNDRED SIXTY-EIGHT-A OF THE CORRECTION LAW,
AND THE VICTIM OF SUCH OFFENSE WAS UNDER THE AGE OF EIGHTEEN AT THE TIME
OF SUCH OFFENSE, THE DURATION OF AN ORDER OF PROTECTION ISSUED  PURSUANT
TO  THIS  SUBDIVISION  MAY  BE, BUT SHALL NOT EXCEED, THE GREATER OF THE
APPLICABLE DURATION PROVIDED FOR IN THE  FOREGOING  PROVISIONS  OF  THIS
SUBDIVISION OR UNTIL THE VICTIM OF SUCH OFFENSE ATTAINS THE AGE OF EIGH-
TEEN.    For  purposes  of  determining  the  duration  of  an  order of
protection entered pursuant to this subdivision, a conviction  shall  be
deemed  to  include  a  conviction  that has been replaced by a youthful
offender adjudication. In addition to any other conditions such an order
may require that the defendant:
  S 18. No municipal corporation, as defined in section 2 of the general
municipal law, shall, on or after the effective date of the  chapter  of
the  laws  of 2013 that created this section, enact any local law, ordi-
nance, code, rule or regulation requiring a sex offender, as  such  term
is  defined  by  section  168-a  of the correction law, to comply with a
residency restriction. The provisions of this act shall  invalidate  and
preempt  any such local law, ordinance, code, rule or regulation enacted
after the effective date of the chapter of the laws of 2013  that  added
this section.
  S  19.  The  provisions  of  this act shall preempt and invalidate any
local law, ordinance, code, rule or regulation enacted before the effec-
tive date of the chapter of the laws of 2013  that  added  this  section
requiring  a  sex  offender, as such term is defined by section 168-a of
the correction law, to comply with a residency restriction, except  that
nothing  in  this act shall preclude any local probation department from
enforcing any lawful condition of probation that may  be  imposed  on  a
sentenced offender.
  S 20. The district attorney may file a petition to seek the imposition
of a residency restriction for: (i) a sex offender classified as a level
2  or  3 offender who stands convicted of a felony which requires regis-
tration pursuant to article 6-C of the correction  law  and  who  is  at
liberty  on  the effective date of this act; and (ii) a sex offender who
was convicted of a felony which requires registration pursuant to  arti-
cle  6-C  of  the correction law prior to the effective date of this act
and is incarcerated in a state or local  correctional  facility  on  the
effective date of this act and is classified as a level 2 or 3 offender.
A  petition  filed  pursuant  to  paragraph (i) of this section shall be
filed with the sentencing court or the court  which  made  the  determi-
nation  regarding  the level of notification of such offender within one
year of the effective date of this act. A  petition  filed  pursuant  to
paragraph  (ii) of this section shall be filed with the sentencing court
or the court which made the determination regarding the level of notifi-
cation of such offender within one year of the release of such  offender
from incarceration. The petition shall set forth the reasons for seeking

A. 4873                            14

the  residency  restriction  and  the  district  attorney shall bear the
burden, by clear and convincing evidence, of proving the facts  support-
ing  the  imposition of a residency restriction. Upon receipt of a peti-
tion  submitted  pursuant  to this section, the court shall proceed in a
manner consistent with subdivision 4 of section 168-o of the  correction
law.  Applying  the guidelines established in subdivision 5-a of section
168-1 of the correction law, the court shall determine whether to impose
a residency restriction on the offender named in the  petition  pursuant
to  section  168-w of the correction law. In the event that the district
attorney's petition is granted, the sex offender may appeal as of  right
from  the order, pursuant to the provisions of articles 55, 56 and 57 of
the civil practice law and rules. Where counsel  has  been  assigned  to
represent  the  offender  upon  the ground that he or she is financially
unable to retain counsel, that assignment shall be continued  throughout
the pendency of the appeal, and the person may proceed as a poor person,
pursuant to article 18-B of the county law.
  S 21. This act shall take effect immediately, provided that the amend-
ments to the opening paragraph of subdivision 4 of section 530.13 of the
criminal  procedure  law  made  by  section sixteen of this act shall be
subject to the expiration and reversion of such  paragraph  pursuant  to
section  74 of chapter 3 of the laws of 1995, as amended, when upon such
date the provisions of section seventeen of this act shall take effect.