senate Bill S4821

2013-2014 Legislative Session

Relates to risk-level recommendations under the sex offender registration act

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Archive: Last Bill Status - In Committee


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor

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Actions

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jan 08, 2014 referred to crime victims, crime and correction
returned to senate
died in assembly
May 30, 2013 referred to correction
delivered to assembly
passed senate
May 29, 2013 ordered to third reading cal.812
committee discharged and committed to rules
May 20, 2013 reported and committed to finance
Apr 25, 2013 referred to crime victims, crime and correction

Votes

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May 29, 2013 - Rules committee Vote

S4821
24
0
committee
24
Aye
0
Nay
1
Aye with Reservations
0
Absent
0
Excused
0
Abstained
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May 20, 2013 - Crime Victims, Crime and Correction committee Vote

S4821
10
0
committee
10
Aye
0
Nay
3
Aye with Reservations
0
Absent
0
Excused
0
Abstained
show Crime Victims, Crime and Correction committee vote details

Crime Victims, Crime and Correction Committee Vote: May 20, 2013

Co-Sponsors

S4821 - Bill Details

Current Committee:
Law Section:
Correction Law
Laws Affected:
Amd §§168-d, 168-l & 168-n, Cor L

S4821 - Bill Texts

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Relates to risk-level recommendations under the sex offender registration act.

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BILL NUMBER:S4821

TITLE OF BILL: An act to amend the correction law, in relation to
risk-level recommendations under the sex offender registration act

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of her Advisory
Committee on Criminal Law and Procedure.

This measure would amend the Sex Offender Registration Act
(Corrections Law article 6-C) to make it the responsibility of the
District Attorney to provide the risk-level recommendation where a
defendant is sentenced to a term of imprisonment of ninety days or
less.

Upon certification as a sex offender, a defendant becomes subject to a
risk-level determination, assessed by the court following a hearing
(Correction Law § 168-d (1)). Prior to the risk-level determination
hearing, however, both the court and the offender must be given notice
of a risk-level recommendation. Where an offender is not sentenced to
a term of imprisonment, it is the District Attorney who provides the
risk-level recommendation (see Correction Law § 168-d (2), (3)). Where
the offender is sentenced to a term of imprisonment, the
responsibility to make the recommendation is placed on the Board of
Examiners of Sex Offenders (see Correction Law § 168-1 (6)).

A problem routinely arises when the Board of Examiners of Sex
Offenders is tasked with the duty to provide a recommendation for
offenders sentenced to a term of imprisonment of 90 days or less. The
statutory scheme anticipates that the sentencing court will make the
risk-level determination for imprisoned offenders 30 days prior to the
offender's release but only after receiving the Board's
recommendation, which must be made within sixty days prior to the
offender's release (see Correction Law § 168-n (1), (2)). Where the
court is unable to make a determination prior to the date scheduled
for the defendant's release, it must adjourn the hearing until after
release and provide the offender with at least 20 days notice (see
Correction Law §§ 168-1 (8); 168-n (3)). For jail terms of 90 days or
less, or sentences that will be satisfied by the amount of time a
defendant has already served, the Board has inadequate time to prepare
the risk-level recommendation prior to defendant's release. This
causes the court to schedule a hearing date after the defendant's
release. As a practical matter, courts cannot foresee when the
Board's recommendation will be received and therefore no hearing will
be scheduled until after the court receives the recommendation. By
then, most defendants serving short terms of incarceration have
already been released.

As a result of this cumbersome procedure, the court must notify the
offender of the date for the hearing when it often has little
information regarding defendant's present location. Usually, the court
has no effective means to notify the offender except by mailing a
letter to defendant's last known address as reflected in the court
file. If the defendant does not appear at the hearing, the court may
then only proceed upon a finding of an unexcused failure to appear
(see Correction Law §§ 168-d (4), 168-n (6)). Such findings are
difficult to make with the limited record available to the court,


leading to significant delays in determining an offender's risk-level
status.

Our Advisory Committee urges that the problems encountered under
present law can be avoided if the District Attorney is given the
responsibility for preparing the risk-level recommendation in cases
where a defendant will be incarcerated on a sentence of ninety days or
less. District Attorneys already have this obligation for sentences
that do not involve imprisonment and will be able to assure the court
that the risk-level recommendation is filed prior to the release of
the defendant. The court can then provide adequate notice of the
hearing date to the defendant and insure that timely risk-level
determinations are conducted.

This measure would take effect 90 days after it becomes law.

Legislative History: None. New proposal.

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

                                  4821

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                             April 25, 2013
                               ___________

Introduced by Sen. GALLIVAN -- (at request of the Office of Court Admin-
  istration)  --  read twice and ordered printed, and when printed to be
  committed to the Committee on Crime Victims, Crime and Correction

AN ACT to amend the correction law, in relation to risk-level  recommen-
  dations under the sex offender registration act

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

  Section 1. Subdivision 2 of section 168-d of the  correction  law,  as
amended  by  chapter  684  of  the  laws  of 2005, is 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,
A DEFINITE SENTENCE OF NINETY DAYS OR LESS OR A SENTENCE  THAT  WILL  BE
SATISFIED  BY  THE  AMOUNT  OF  TIME ALREADY SERVED 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. 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 higher 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 institution, 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 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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09857-01-3

S. 4821                             2

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  classi-
fied  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  offen-
der,  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 suffi-
cient 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  under-
lying 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 requirements of this article.
Where such sex offender violates such provision, probation may be  imme-
diately  revoked  in  the manner provided by article four hundred ten of
the criminal procedure law.
  S 2. 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, A  DEFI-
NITE  SENTENCE OF NINETY DAYS OR LESS, OR A SENTENCE THAT WILL BE SATIS-
FIED BY THE AMOUNT OF TIME ALREADY SERVED, 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 desig-
nated 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  determi-
nation  proceeding, the district attorney shall provide to the court and
the sex offender a written statement setting  forth  the  determinations
sought  by  the  district attorney together with the reasons for seeking
such 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 hearing as necessary to permit the sex offender
or the district attorney to obtain materials relevant  to  the  determi-
nations 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  determinations,  the  court shall review any victim's statement and

S. 4821                             3

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 3. 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, EXCEPT WHERE THE SEX OFFENDER IS SERVING A
DEFINITE SENTENCE OF NINETY DAYS OR LESS, OR A  SENTENCE  THAT  WILL  BE
SATISFIED  BY  THE AMOUNT OF TIME ALREADY SERVED, the board shall within
sixty calendar days prior to the discharge, parole, release to  post-re-
lease  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 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 notifica-
tion depending upon the degree of the risk  of  re-offense  by  the  sex
offender.
  S  4.    Subdivisions  1 and 2 of section 168-n of the correction law,
subdivision 1 as amended by chapter 11 of the laws of 2002 and  subdivi-
sion  2  as  amended  by chapter 453 of the laws of 1999, are amended to
read as follows:
  1. A determination that an offender is  a  sexual  predator,  sexually
violent  offender,  or  predicate sex offender as defined in subdivision
seven of section one hundred sixty-eight-a of this article shall be made
prior to the discharge, parole, release to post-release  supervision  or
release of such offender by the sentencing court applying the guidelines
established  in subdivision five of section one hundred sixty-eight-l of
this article after receiving a recommendation from the board OR DISTRICT
ATTORNEY pursuant to section one hundred sixty-eight-l  OR  SECTION  ONE
HUNDRED SIXTY-EIGHT-D 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  OR
DISTRICT  ATTORNEY  pursuant  to  section  one  hundred sixty-eight-l OR
SECTION ONE HUNDRED SIXTY-EIGHT-D of this article.  Both  determinations

S. 4821                             4

of  the  sentencing  court  shall  be made thirty calendar days prior to
discharge, parole or release.
  S  5.   This act shall take effect on the ninetieth day after it shall
have become a law.

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