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

                                  1939

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                               (PREFILED)

                             January 9, 2013
                               ___________

Introduced  by M. of A. ENGLEBRIGHT, ORTIZ, COLTON -- Multi-Sponsored by
  -- M. of A. GALEF -- read  once  and  referred  to  the  Committee  on
  Correction

AN ACT to amend the correction law, in relation to the judicial determi-
  nation that an offender is a sex offender or a sexually violent preda-
  tor; and to repeal subdivision 2 of section 168-k of such law relating
  thereto

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

  Section 1. Subdivision 3 of section 168-d of the  correction  law,  as
amended  by  chapter  11  of  the  laws  of  2002, is amended to read as
follows:
  3. For sex offenders released on probation or discharged upon  payment
of  a  fine, conditional discharge or unconditional discharge, [it shall
be the duty of the court applying the guidelines established in subdivi-
sion five of section one hundred sixty-eight-l of this article to deter-
mine 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 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

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

                                                           LBD05416-01-3

A. 1939                             2

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]  THE BOARD SHALL MAKE A LEVEL OF NOTIFICATION RECOMMENDATION TO THE
COURT IN ACCORDANCE WITH SECTION ONE HUNDRED SIXTY-EIGHT-L OF THIS ARTI-
CLE. FINAL LEVEL OF NOTIFICATION DETERMINATIONS BY THE  COURT  SHALL  BE
MADE  AFTER  A CLASSIFICATION HEARING WHERE IN MAKING THE DETERMINATION,
THE COURT SHALL INCLUDE A REVIEW OF ANY VICTIM'S STATEMENT AND ANY MATE-
RIALS SUBMITTED BY THE SEX OFFENDER. THE COURT SHALL  PROVIDE  THAT  THE
OFFENDER RECEIVE FAIR WRITTEN NOTICE OF THE CLASSIFICATION HEARING WHICH
SHALL  INCLUDE  A  STATEMENT  OF  THE  PROCEEDING'S PURPOSE, THE BOARD'S
RECOMMENDATION AND RAMIFICATIONS OF CLASSIFICATION LEVEL, AND  A  STATE-
MENT  OF  THE OFFENDER'S RIGHT TO BE REPRESENTED BY COUNSEL AT THE HEAR-
ING. THE OFFENDER SHALL HAVE THE RIGHT TO HAVE COUNSEL APPOINTED AND FOR
PRE-HEARING DISCOVERY OF DOCUMENTARY EVIDENCE ON WHICH THE BOARD'S LEVEL
OF NOTIFICATION RECOMMENDATION WAS DETERMINED. THE STATE MUST PROVE  THE
FACTS  SUPPORTING  ANY  CLASSIFICATION DETERMINATION. THE OFFENDER SHALL
HAVE THE RIGHT TO APPEAL A LEVEL OF NOTIFICATION DETERMINATION.
  S 2. Subdivisions 1, 2 and 3 of section 168-g of the  correction  law,
as  amended  by  section  18 of subpart B of part C of chapter 62 of the
laws of 2011, are amended to read as follows:
  1. [The department or office of probation  and  correctional  alterna-
tives  in  accordance  with risk factors pursuant to section one hundred
sixty-eight-l of this article shall determine the duration of  registra-
tion  and  notification for every sex offender who on the effective date
of this article is then on community supervision  or  probation  for  an
offense  provided for in subdivision two or three of section one hundred
sixty-eight-a of this article] FOR SEX OFFENDERS UNDER THIS SECTION, THE
BOARD SHALL MAKE A LEVEL OF NOTIFICATION RECOMMENDATION TO THE COURT  IN
ACCORDANCE WITH SECTION ONE HUNDRED SIXTY-EIGHT-L OF THIS ARTICLE. FINAL
LEVEL  OF NOTIFICATION DETERMINATIONS BY THE COURT SHALL BE MADE AFTER A
CLASSIFICATION HEARING WHERE IN  MAKING  THE  DETERMINATION,  THE  COURT
SHALL  INCLUDE  A  REVIEW  OF  ANY  VICTIM'S STATEMENT AND ANY MATERIALS
SUBMITTED BY THE SEX OFFENDER.  THE COURT SHALL PROVIDE THAT THE  OFFEN-
DER  RECEIVE  FAIR  WRITTEN  NOTICE  OF THE CLASSIFICATION HEARING WHICH
SHALL INCLUDE A STATEMENT  OF  THE  PROCEEDING'S  PURPOSE,  THE  BOARD'S

A. 1939                             3

RECOMMENDATION  AND  RAMIFICATIONS OF CLASSIFICATION LEVEL, AND A STATE-
MENT OF THE OFFENDER'S RIGHT TO BE REPRESENTED BY COUNSEL AT  THE  HEAR-
ING. THE OFFENDER SHALL HAVE THE RIGHT TO HAVE COUNSEL APPOINTED AND FOR
PRE-HEARING DISCOVERY OF DOCUMENTARY EVIDENCE ON WHICH THE BOARD'S LEVEL
OF  NOTIFICATION RECOMMENDATION WAS DETERMINED. THE STATE MUST PROVE THE
FACTS SUPPORTING ANY CLASSIFICATION DETERMINATION.  THE  OFFENDER  SHALL
HAVE A RIGHT TO APPEAL A LEVEL OF NOTIFICATION DETERMINATION.
  2.  Every  sex  offender  who on the effective date of this article is
then on community supervision or probation for an offense  provided  for
in subdivision two or three of section one hundred sixty-eight-a of this
article  shall  within ten calendar days of [such determination] RECEIPT
OF HEARING NOTIFICATION register with his parole or  probation  officer.
On  each  anniversary  of  the  sex offender's initial registration date
thereafter, the provisions of section one hundred sixty-eight-f of  this
article  shall apply. Any sex offender who fails or refuses to so comply
shall be subject to the same penalties as otherwise provided for in this
article which would be imposed upon a sex offender who fails or  refuses
to so comply with the provisions of this article on or after such effec-
tive date.
  3.  [It] UPON FINAL COURT LEVEL OF NOTIFICATION DETERMINATION IT shall
be the duty of the [parole or probation officer]  COURT  to  inform  and
register such sex offender according to the requirements imposed by this
article.  [A  parole or probation officer] THE COURT shall give one copy
of the form to the sex offender and shall, within three  calendar  days,
send  two  copies  electronically  or  otherwise to the department which
shall forward one copy electronically or otherwise to the  law  enforce-
ment  agency having jurisdiction where the sex offender resides upon his
or her community supervision, probation, or local conditional release.
  S 3. Subdivision 2 of section 168-k of the correction law is  REPEALED
and two new subdivisions 2 and 2-a are added to read as follows:
  2.  FOR SEX OFFENDERS UNDER THIS SECTION, THE BOARD SHALL MAKE A LEVEL
OF NOTIFICATION RECOMMENDATION TO THE COURT IN ACCORDANCE  WITH  SECTION
ONE  HUNDRED  SIXTY-EIGHT-L OF THIS ARTICLE. FINAL LEVEL OF NOTIFICATION
DETERMINATIONS BY THE COURT SHALL BE MADE AFTER A CLASSIFICATION HEARING
WHERE IN MAKING THE DETERMINATION, THE COURT SHALL INCLUDE A  REVIEW  OF
ANY  VICTIM'S STATEMENT AND ANY MATERIALS SUBMITTED BY THE SEX OFFENDER.
THE COURT SHALL PROVIDE THAT THE OFFENDER RECEIVE FAIR WRITTEN NOTICE OF
THE CLASSIFICATION HEARING  WHICH  SHALL  INCLUDE  A  STATEMENT  OF  THE
PROCEEDING'S  PURPOSE,  THE  BOARD'S RECOMMENDATION AND RAMIFICATIONS OF
CLASSIFICATION LEVEL, AND A STATEMENT OF  THE  OFFENDER'S  RIGHT  TO  BE
REPRESENTED BY COUNSEL AT THE HEARING. THE OFFENDER SHALL HAVE THE RIGHT
TO  HAVE  COUNSEL APPOINTED AND FOR PRE-HEARING DISCOVERY OF DOCUMENTARY
EVIDENCE ON WHICH THE BOARD'S LEVEL OF NOTIFICATION  RECOMMENDATION  WAS
DETERMINED. THE STATE MUST PROVE THE FACTS SUPPORTING ANY CLASSIFICATION
DETERMINATION.  THE  OFFENDER  SHALL  HAVE  A RIGHT TO APPEAL A LEVEL OF
NOTIFICATION DETERMINATION.
  2-A. UPON FINAL COURT LEVEL OF NOTIFICATION DETERMINATION, IT SHALL BE
THE DUTY OF THE COURT TO INFORM AND REGISTER SUCH SEX OFFENDER ACCORDING
TO THE REQUIREMENTS IMPOSED BY THIS ARTICLE. THE COURT  SHALL  GIVE  ONE
COPY  OF  THE  FORM TO THE SEX OFFENDER AND SHALL, WITHIN THREE CALENDAR
DAYS, SEND TWO COPIES ELECTRONICALLY OR OTHERWISE TO THE DIVISION  WHICH
SHALL  FORWARD  ONE COPY ELECTRONICALLY OR OTHERWISE TO THE LAW ENFORCE-
MENT AGENCY HAVING JURISDICTION WHERE THE SEX OFFENDER RESIDES UPON  HIS
PAROLE,  PROBATION,  OR  UPON  ANY  FORM  OF  STATE OR LOCAL CONDITIONAL
RELEASE.

A. 1939                             4

  S 4. The opening paragraph of subdivision 6 of section  168-l  of  the
correction law, as amended by chapter 11 of the laws of 2002, is amended
to read as follows:
  Applying  these guidelines, the board shall MAKE A RECOMMENDATION, FOR
OFFENDERS WHO ON THE EFFECTIVE DATE OF THIS ARTICLE WERE THEN  INCARCER-
ATED,  ON PROBATION OR PAROLE FOR AN OFFENSE PROVIDED FOR IN SUBDIVISION
TWO OR THREE OF SECTION ONE HUNDRED SIXTY-EIGHT-A OF THIS ARTICLE, WHICH
SHALL BE CONFIDENTIAL AND SHALL NOT BE AVAILABLE FOR PUBLIC  INSPECTION,
EXCEPT FOR SEX OFFENDER PREHEARING DISCOVERY, TO THE SENTENCING COURT AS
TO  WHETHER  SUCH SEX OFFENDER WARRANTS THE DESIGNATION OF SEXUAL PREDA-
TOR, SEXUALLY VIOLENT PREDATOR OR PREDICATE SEX OFFENDER. APPLYING THESE
SAME GUIDELINES, THE BOARD SHALL within  [sixty]  NINETY  calendar  days
prior  to  the discharge, parole, release to post-release supervision or
release of a sex offender make a recommendation which shall be confiden-
tial and shall not be available for public inspection,  EXCEPT  FOR  SEX
OFFENDER  PREHEARING  DISCOVERY,  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 shall be applied by the board to make a recommendation to
the sentencing court which shall be confidential and shall not be avail-
able for public inspection, providing for one  of  the  following  three
levels  of  notification depending upon the degree of the risk of re-of-
fense by the sex offender.
  S 5. Section 168-n of the correction law, as added by chapter  192  of
the  laws of 1995, subdivision 1 as amended by chapter 11 of the laws of
2002, subdivisions 2 and 5 as amended by chapter  453  of  the  laws  of
1999, and subdivision 3 as amended and subdivision 6 as added by chapter
684 of the laws of 2005, is amended to read as follows:
  S 168-n. Judicial determination.  1. [A determination that an offender
is a sexual predator, sexually violent offender, or predicate sex offen-
der as defined in subdivision seven of section one hundred sixty-eight-a
of this article shall be made prior to the discharge, parole, release to
post-release  supervision  or release of such offender by the sentencing
court applying the guidelines established in subdivision five of section
one hundred sixty-eight-l of this article after receiving a  recommenda-
tion  from  the  board  pursuant to section one hundred sixty-eight-l of
this article.
  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  determi-
nations of the sentencing court 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-

A. 1939                             5

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 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  offen-
der shall also advise the offender that he or she has a right to a hear-
ing 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 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 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.
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 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 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  recommendation  and  any  materials submitted by the
board, and may consider reliable hearsay evidence  submitted  by  either
party,  provided that it is relevant to the determinations. Facts previ-
ously 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 submit-

A. 1939                             6

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] THE BOARD SHALL MAKE A
RECOMMENDATION TO THE COURT AS TO WHETHER AN OFFENDER IS A SEX OFFENDER,
A SEXUAL PREDATOR, A SEXUALLY VIOLENT PREDATOR OR A PREDICATE SEX OFFEN-
DER  PURSUANT  TO SECTION ONE HUNDRED SIXTY-EIGHT-L OF THIS ARTICLE. THE
BOARD SHALL MAKE A LEVEL OF NOTIFICATION RECOMMENDATION TO THE COURT  IN
ACCORDANCE WITH SECTION ONE HUNDRED SIXTY-EIGHT-L OF THIS ARTICLE. FINAL
LEVEL OF NOTIFICATION DETERMINATIONS BY THE COURT SHALL BE MADE PRIOR TO
THE  OFFENDER'S  DISCHARGE, PAROLE OR RELEASE AND AFTER A CLASSIFICATION
HEARING WHERE IN MAKING THE DETERMINATION, THE  COURT  SHALL  INCLUDE  A
REVIEW  OF ANY VICTIM'S STATEMENT AND ANY MATERIALS SUBMITTED BY THE SEX
OFFENDER. THE COURT SHALL PROVIDE THAT THE OFFENDER RECEIVE FAIR WRITTEN
NOTICE OF THE CLASSIFICATION HEARING WHICH SHALL INCLUDE A STATEMENT  OF
THE  PROCEEDING'S  PURPOSE, THE BOARD'S RECOMMENDATION AND RAMIFICATIONS
OF CLASSIFICATION LEVEL, AND A STATEMENT OF THE OFFENDER'S RIGHT  TO  BE
REPRESENTED BY COUNSEL AT THE HEARING. THE OFFENDER SHALL HAVE THE RIGHT
TO  HAVE  COUNSEL APPOINTED AND FOR PRE-HEARING DISCOVERY OF DOCUMENTARY
EVIDENCE ON WHICH THE BOARD'S LEVEL OF NOTIFICATION  RECOMMENDATION  WAS
DETERMINED. THE STATE MUST PROVE THE FACTS SUPPORTING ANY CLASSIFICATION
DETERMINATION.  THE  OFFENDER  SHALL  HAVE  A RIGHT TO APPEAL A LEVEL OF
NOTIFICATION DETERMINATION.
  [4.] 2. Upon determination that the risk of repeat offense and  threat
to  public  safety  is  high, the sentencing court shall also notify the
division of such fact for the purposes of  section  one  hundred  sixty-
eight-q of this article.
  [5.]  3. Upon the reversal of a conviction of a sexual offense defined
in paragraphs (a) and (b) of subdivision two or  three  of  section  one
hundred  sixty-eight-a of this article, the appellate court shall remand
the case to the lower court for entry of an order directing the expunge-
ment of any records required to be kept [herein] PURSUANT TO THIS  ARTI-
CLE.
  [6.]  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] ONE of this section.
  S 6. This act shall take effect immediately.