Assembly Bill A7878

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

                                  7878

                       2015-2016 Regular Sessions

                          I N  A S S E M B L Y

                              May 28, 2015
                               ___________

Introduced  by  M.  of  A.  O'DONNELL  --  read once and referred to the
  Committee on Correction

AN ACT to amend the correction  law  and  the  mental  hygiene  law,  in
  relation to sex offender residency restrictions; and to repeal certain
  provisions of the penal law and the executive law relating thereto

  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)  WHETHER  THE  SEX  OFFENDER IS SUBJECT TO A RESIDENCY RESTRICTION
PURSUANT TO SECTION ONE HUNDRED SIXTY-EIGHT-N OF THIS ARTICLE.
  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-N OF THIS ARTICLE,  CONCERN-
ING  THE  TERM'S  SPECIFIC DURATION AND THE ACCURATE TERMINATION DATE OF
SUCH RESTRICTION.
  S 3. 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
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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD11387-01-5
              

A. 7878                             2

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.  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 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  4. 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 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. IF THE SEX OFFENDER HAS A  VICTIM
UNDER  EIGHTEEN  YEARS  OF AGE, THE COURT MAY ORDER AN EVALUATION BY THE
COMMISSIONER OF THE OFFICE OF MENTAL HEALTH PURSUANT TO SECTION 10.05 OF
THE MENTAL HYGIENE LAW FOR THE PURPOSE OF OBTAINING A RECOMMENDATION  AS

A. 7878                             3

TO  WHETHER  OR  NOT  THE  SEX OFFENDER SHOULD BE SUBJECT TO A RESIDENCY
RESTRICTION PURSUANT TO SECTION ONE HUNDRED SIXTY-EIGHT-N OF THIS  ARTI-
CLE. TO THE EXTENT POSSIBLE, THE COURT SHALL PROVIDE THE COMMISSIONER OF
THE  OFFICE  OF  MENTAL  HEALTH  WITH SUPPORTING DOCUMENTATION AND OTHER
RELEVANT INFORMATION. IF THE CASE REVIEW TEAM PURSUANT TO SECTION  10.05
OF THE MENTAL HYGIENE LAW RECOMMENDS THAT A RESIDENCY RESTRICTION SHOULD
BE  IMPOSED  THEN THE COURT SHALL CONDUCT A HEARING PURSUANT TO SUBDIVI-
SION TWO OF SECTION ONE HUNDRED SIXTY-EIGHT-N OF THIS ARTICLE TO  DETER-
MINE  WHETHER SUCH A RESTRICTION IS NECESSARY AND, WHEN NECESSARY, ORDER
SUCH A RESTRICTION. 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 determinations sought by
the district attorney together with the reasons for seeking such  deter-
minations.  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  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  shall  be  deemed  established by clear and convincing
evidence and shall not be relitigated. The court shall render  an  order
setting  forth  its  determinations and the findings of fact and conclu-
sions of law on which the determinations are based. A copy of the  order
shall  be  submitted  by  the court to the division. Upon application of
either party, the court shall seal any portion  of  the  court  file  or
record  which  contains material that is confidential under any state or
federal statute. Either party may appeal as  of  right  from  the  order
pursuant  to the provisions of articles fifty-five, fifty-six and fifty-
seven of the civil practice  law  and  rules.  Where  counsel  has  been
assigned  to  represent  the  sex  offender upon the ground that the sex
offender is financially unable to retain counsel, that assignment  shall
be  continued  throughout the pendency of the appeal, and the person may
appeal as a poor person pursuant to article  eighteen-B  of  the  county
law.
  S  5. 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

A. 7878                             4

the information to the law enforcement agency having jurisdiction  where
the  sex  offender  expects  to  reside within this state. No later than
thirty days prior to the board making a recommendation, the sex offender
shall  be  notified  that his or her case is under review and that he or
she is permitted to submit to the board any information relevant to  the
review.  After  reviewing  any  information  obtained,  and applying the
guidelines established  in  subdivision  five  of  section  one  hundred
sixty-eight-l  of  this  article,  the board shall within sixty calendar
days make a recommendation regarding the level of notification  pursuant
to  subdivision six of section one hundred sixty-eight-l of this article
and whether such sex offender shall be  designated  a  sexual  predator,
sexually  violent  offender,  or  predicate  sex  offender as defined in
subdivision seven of section one hundred sixty-eight-a of this  article.
This recommendation shall be confidential and shall not be available for
public  inspection.  It  shall  be  submitted by the board to the county
court or supreme court and to the district attorney  in  the  county  of
residence  of  the sex offender and to the sex offender. It shall be the
duty of the county court or supreme court in the county of residence  of
the  sex  offender,  applying  the guidelines established in subdivision
five of section one hundred sixty-eight-l of this article, to  determine
the  level  of  notification  pursuant to subdivision six of section one
hundred sixty-eight-l of this article  and  whether  such  sex  offender
shall  be  designated  a  sexual predator, sexually violent offender, or
predicate sex offender as defined in subdivision seven  of  section  one
hundred  sixty-eight-a of this article. IF THE SEX OFFENDER HAS A VICTIM
UNDER EIGHTEEN YEARS OF AGE, THE COURT MAY ORDER AN  EVALUATION  BY  THE
COMMISSIONER OF THE OFFICE OF MENTAL HEALTH PURSUANT TO SECTION 10.05 OF
THE  MENTAL HYGIENE LAW FOR THE PURPOSE OF OBTAINING A RECOMMENDATION AS
TO WHETHER OR NOT THE SEX OFFENDER SHOULD  BE  SUBJECT  TO  A  RESIDENCY
RESTRICTION  PURSUANT TO SECTION ONE HUNDRED SIXTY-EIGHT-N OF THIS ARTI-
CLE. TO THE EXTENT POSSIBLE, THE COURT SHALL PROVIDE THE COMMISSIONER OF
THE OFFICE OF MENTAL HEALTH  WITH  SUPPORTING  DOCUMENTATION  AND  OTHER
RELEVANT  INFORMATION. IF THE CASE REVIEW TEAM PURSUANT TO SECTION 10.05
OF THE MENTAL HYGIENE LAW RECOMMENDS THAT A RESIDENCY RESTRICTION SHOULD
BE IMPOSED THEN THE COURT SHALL CONDUCT A HEARING PURSUANT  TO  SUBDIVI-
SION  TWO OF SECTION ONE HUNDRED SIXTY-EIGHT-N OF THIS ARTICLE TO DETER-
MINE WHETHER SUCH A RESTRICTION IS NECESSARY AND, WHEN NECESSARY,  ORDER
SUCH  A  RESTRICTION.  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 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  desig-
nated  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 concern-
ing  your registration. 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

A. 7878                             5

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. 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. 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 AND WHETHER SUCH SEX OFFENDER WILL BE SUBJECT TO A RESIDEN-
CY RESTRICTION PURSUANT TO SECTION ONE  HUNDRED  SIXTY-EIGHT-N  OF  THIS
ARTICLE.  Where  there  is  a dispute between the parties concerning the
determinations, the court shall adjourn  the  hearing  as  necessary  to
permit  the  sex  offender  or the district attorney to obtain materials
relevant to the determinations from the state board of examiners of  sex
offenders or any state or local facility, hospital, institution, office,
agency,  department  or  division.  Such  materials  may  be obtained by
subpoena if not voluntarily provided to the requesting party. In  making
the determinations the court shall review any victim's statement and any
relevant  materials  and  evidence submitted by the sex offender and the
district attorney and the recommendation and any 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 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.

A. 7878                             6

  S  6. 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
FOR  MODIFICATION  OR  TERMINATION OF A RESIDENCY RESTRICTION IMPOSED BY
THE SENTENCING COURT.
  S 7. Subdivisions 2 and 3 of section  168-n  of  the  correction  law,
subdivision  2  as  amended  by  of  chapter 453 of the laws of 1999 and
subdivision 3 as amended by chapter 684 of the laws of 2005, are amended
and a new subdivision 2-a is added 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] WHEN  THE
COURT  RECEIVES A RECOMMENDATION THAT A RESIDENCY RESTRICTION BE CONSID-
ERED PURSUANT TO SECTION 10.05 OF THE MENTAL HYGIENE LAW THE COURT SHALL
CONDUCT A HEARING TO DETERMINE IF THE SEX OFFENDER SHALL BE SUBJECT TO A
RESIDENCY RESTRICTION PROHIBITING SUCH OFFENDER  FROM  KNOWINGLY  ESTAB-
LISHING  A  PERMANENT  RESIDENCE  WITHIN  UP TO ONE THOUSAND FEET OF ANY
SCHOOL GROUNDS AS THAT TERM IS DEFINED IN PARAGRAPH (A)  OF  SUBDIVISION
FOURTEEN  OF  SECTION  220.00 OF THE PENAL LAW OR THE GROUNDS OF A CHILD
DAY CARE CENTER AS DEFINED IN SUBDIVISION FIVE OF SECTION 220.44 OF  THE
PENAL  LAW  FOR A PERIOD OF UP TO TEN YEARS. IN DETERMINING THAT A RESI-
DENCY RESTRICTION IS NECESSARY THE COURT SHALL CONSIDER 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 PRESENCE OF FAMILY MEMBERS AT THE RESIDENCE WHERE THE OFFENDER
MAY  PROPOSE  TO  ESTABLISH PERMANENT RESIDENCY, AS WELL AS TIES TO THAT
COMMUNITY THAT MAY BE BENEFICIAL TO REHABILITATION;
  (D) THE ABILITY OF THE OFFENDER TO OBTAIN  PERMANENT,  AFFORDABLE  AND
STABLE  HOUSING IN ORDER TO REDUCE THE LIKELIHOOD THAT THE OFFENDER WILL
BE TRANSIENT;
  (E) THE ACCESSIBILITY  TO  SUPPORTIVE  AND  SUPERVISORY  SERVICES,  AS
APPLICABLE,  INCLUDING BUT NOT LIMITED TO LOCALLY AVAILABLE SEX OFFENDER
TREATMENT PROGRAMS THAT HAVE DEMONSTRATED EFFECTIVENESS IN REDUCING  SEX
OFFENDER RECIDIVISM AND INCREASING PUBLIC SAFETY;
  (F) THE ABILITY OF THE OFFENDER TO FIND GAINFUL AND STABLE EMPLOYMENT;
  (G)  ANY  RECOMMENDATION OF THE OFFENDER'S COMMUNITY SUPERVISION OFFI-
CER, PROBATION OFFICER OR MENTAL HEALTH CARE PROVIDER;
  (H) THE REPORT OF THE CASE REVIEW TEAM PURSUANT TO  SECTION  10.05  OF
THE MENTAL HYGIENE LAW; AND
  (I) ANY OTHER RELEVANT FACTOR AND RELATED INFORMATION.
  THE determinations of the sentencing court shall be made thirty calen-
dar days prior to discharge, parole or release.
  2-A.  (A)  WHEN  THE  COURT DETERMINES THAT A RESIDENCY RESTRICTION IS
NECESSARY PURSUANT TO THE PROVISIONS OF  THIS  SECTION,  THE  COURT  MAY
ORDER  THAT  THE  SEX OFFENDER BE PROHIBITED FROM KNOWINGLY ESTABLISHING
HIS OR HER PERMANENT RESIDENCE WITHIN UP TO ONE  THOUSAND  FEET  OF  ANY
SCHOOL  GROUNDS, AS THAT TERM IS DEFINED IN PARAGRAPH (A) OF SUBDIVISION
FOURTEEN OF SECTION 220.00 OF THE PENAL LAW, OR THE GROUNDS OF  A  CHILD

A. 7878                             7

DAY  CARE CENTER AS DEFINED IN SUBDIVISION FIVE OF SECTION 220.44 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  HOME  AND  TO  WHICH  HE  OR  SHE, WHENEVER TEMPORARILY AWAY,
INTENDS TO RETURN. THE SEX OFFENDER MAY HAVE  MORE  THAN  ONE  PERMANENT
RESIDENCE  FOR  THE  PURPOSES OF THIS SUBDIVISION.   PERMANENT RESIDENCE
SHALL NOT INCLUDE TEMPORARY OR TRANSITIONAL HOUSING.
  (B)  THE  COURT  SHALL  DETERMINE  THE  DURATION  OF   THE   RESIDENCY
RESTRICTION  IMPOSED  PURSUANT  TO  THIS SECTION PROVIDED, HOWEVER, THAT
SUCH RESTRICTION SHALL NOT APPLY FOR MORE THAN TEN YEARS AFTER THE LATER
OF THE OFFENDER'S RELEASE FROM JAIL OR PRISON FOR A SEX OFFENSE  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  INCARCERATED  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.
  (C) 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.
  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.
THE  COURT MAY ALSO DETERMINE WHETHER YOU WILL BE SUBJECT TO A RESIDENCY
RESTRICTION WHICH MAY RESTRICT WHERE YOU CAN  ESTABLISH  YOUR  PERMANENT
RESIDENCY.  If you fail to appear at this proceeding, without sufficient
excuse, it shall be held in your absence. Failure to appear  may  result
in  a  longer  period  of  registration  or  a higher level of community
notification because you are not present to offer  evidence  or  contest
evidence  offered  by  the district attorney." The written notice to the
sex offender shall also advise the offender that he or she has  a  right
to  a hearing prior to the court's determination, and that he or she has
the right to be represented by counsel at the hearing.  If  counsel  has
been assigned to represent the offender at the determination proceeding,

A. 7878                             8

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-
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.
  S 8. 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 SENTENCING COURT OR WITH THE  COURT  WHICH
IMPOSED  SUCH  RESTRICTION  FOR  AN  ORDER TERMINATING OR MODIFYING SUCH
RESIDENCY RESTRICTION. THE PETITION SHALL  SET  FORTH  THE  REASONS  FOR
SEEKING  SUCH  MODIFICATION  OR TERMINATION. THE SEX OFFENDER SHALL BEAR
THE BURDEN OF PROVING THE FACTS SUPPORTING THE REQUESTED MODIFICATION OR

A. 7878                             9

TERMINATION BY CLEAR AND CONVINCING EVIDENCE. SUCH A PETITION  SHALL  BE
SERVED  ON  THE  DISTRICT  ATTORNEY OF THE COUNTY IN WHICH SUCH COURT IS
LOCATED AND MAY NOT BE FILED MORE THAN ANNUALLY. THE  DISTRICT  ATTORNEY
AND  THE  SEX OFFENDER MAY APPEAL AS OF RIGHT FROM AN ORDER ISSUED UNDER
THIS  SUBDIVISION  PURSUANT  TO  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 ANY APPEAL,  IN
ACCORDANCE WITH ARTICLE EIGHTEEN-B OF THE COUNTY LAW.
  S  9.  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-N 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 FOR UP TO  FIVE  ADDITIONAL  YEARS.  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 PETITION 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  REPRE-
SENT  THE  OFFENDER UPON THE GROUND THAT HE OR SHE IS FINANCIALLY UNABLE
TO RETAIN COUNSEL, THAT ASSIGNMENT SHALL  BE  CONTINUED  THROUGHOUT  THE
PENDENCY  OF  ANY  APPEAL,  IN ACCORDANCE WITH ARTICLE EIGHTEEN-B OF THE
COUNTY LAW.
  S 10. 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, TWO-A, [or] 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
any relevant materials and evidence submitted by the  sex  offender  and
the  district  attorney,  the  court may grant or deny the petition. The

A. 7878                            10

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  11. The opening paragraph of section 168-t of the correction law is
designated subdivision 1 and a new subdivision 2 is  added  to  read  as
follows:
  2.  ANY  SEX  OFFENDER  WHO KNOWINGLY VIOLATES A RESIDENCY RESTRICTION
IMPOSED UPON HIM OR HER BY THE COURT PURSUANT  TO  SECTION  ONE  HUNDRED
SIXTY-EIGHT-N  OF  THIS  ARTICLE  SHALL, UPON CONVICTION, BE GUILTY OF A
CLASS A MISDEMEANOR.
  S 12. Subdivisions (e), (f) and (g) of section  10.05  of  the  mental
hygiene  law,  as added by chapter 7 of the laws of 2007, are amended to
read as follows:
  (e) If the person is referred to a case review  team  for  evaluation,
notice  of  such referral shall be provided to the respondent. Upon such
referral, the case review team shall review relevant records,  including
those  described  in  subdivisions  (c) and (d) of this section, and may
arrange for a psychiatric examination of the respondent.  Based  on  the
review  and  assessment  of such information, the case review team shall
consider whether the  respondent  is  a  sex  offender  requiring  civil
management  OR,  AS  APPLICABLE,  WHETHER  A RESPONDENT OR AN INDIVIDUAL
REFERRED BY A COURT PURSUANT TO SUBDIVISION THREE OF SECTION ONE HUNDRED
SIXTY-EIGHT-D OR SUBDIVISION TWO OF SECTION ONE HUNDRED SIXTY-EIGHT-K OF
THE CORRECTION LAW SHOULD BE  CONSIDERED  FOR  A  RESIDENCY  RESTRICTION
PURSUANT TO SECTION ONE HUNDRED SIXTY-EIGHT-N OF THE CORRECTION LAW.
  (f)  If  the  case review team determines that the respondent is not a
sex offender requiring civil management, it shall so notify the respond-
ent and the attorney general, and the attorney general shall not file  a
sex  offender  civil management petition.  IF THE CASE REVIEW TEAM FINDS
THAT AN INDIVIDUAL REFERRED BY A COURT PURSUANT TO SUBDIVISION THREE  OF
SECTION  ONE  HUNDRED  SIXTY-EIGHT-D  OR  SUBDIVISION TWO OF SECTION ONE
HUNDRED SIXTY-EIGHT-K OF THE CORRECTION LAW SHOULD NOT BE CONSIDERED FOR
A RESIDENCY RESTRICTION, IT SHALL SO NOTIFY THE  COURT,  THE  INDIVIDUAL
AND THE DISTRICT ATTORNEY.
  (g)  I.  If  the  case  review team finds that the respondent is a sex
offender requiring civil management, it shall so notify  the  respondent
and  the attorney general, in writing. The written notice must be accom-
panied by a written report from a psychiatric examiner that  includes  a
finding as to whether the respondent has a mental abnormality. Where the
notice  indicates  that  a respondent stands convicted of or was charged
with a designated felony, it shall also include the case  review  team's
finding  as  to  whether the act was sexually motivated. The case review
team shall provide its written notice to the attorney  general  and  the
respondent  within  forty-five  days  of  the commissioner receiving the
notice of anticipated release. However, failure to  do  so  within  that
time  period  shall not affect the validity of such notice or finding or
any subsequent action, including the attorney general's filing of a  sex
offender  civil  management petition subsequent to receiving the finding
of the case review team.
  II. IF THE CASE MANAGEMENT REVIEW TEAM FINDS THAT  THE  RESPONDENT  OR
OTHER  INDIVIDUAL REFERRED BY THE COURT PURSUANT TO SUBDIVISION THREE OF

A. 7878                            11

SECTION ONE HUNDRED SIXTY-EIGHT-D OF THE CORRECTION LAW  OR  SUBDIVISION
TWO  OF SECTION ONE HUNDRED SIXTY-EIGHT-K OF THE CORRECTION LAW IS A SEX
OFFENDER, THAT THE VICTIM OF SUCH OFFENSE WAS UNDER THE AGE OF  EIGHTEEN
AT THE TIME OF SUCH OFFENSE, AND THAT THE SEX OFFENDER SHOULD BE CONSID-
ERED  FOR  A RESIDENCY RESTRICTION, IT SHALL SO NOTIFY THE RESPONDENT OR
OTHER INDIVIDUAL, THE DISTRICT ATTORNEY  AND  THE  SENTENCING  COURT  IN
WRITING. THE WRITTEN NOTICE MUST BE ACCOMPANIED BY A WRITTEN REPORT FROM
A  PSYCHIATRIC  EXAMINER  THAT EXPLAINS THE BASIS OF THE RECOMMENDATION.
THE CASE REVIEW TEAM SHALL PROVIDE ITS WRITTEN NOTICE TO THE RESPONDENT,
THE DISTRICT ATTORNEY AND THE SENTENCING COURT WITHIN FORTY-FIVE DAYS OF
THE COMMISSIONER RECEIVING THE NOTICE OF THE ANTICIPATED RELEASE. HOWEV-
ER, FAILURE TO DO SO WITHIN THAT TIME PERIOD SHALL NOT AFFECT THE VALID-
ITY OF SUCH NOTICE OR FINDING OR ANY SUBSEQUENT ACTION.
  S 13. Subdivision  14  of  section  259-c  of  the  executive  law  is
REPEALED.
  S 14. Subdivision 4-a of section 65.10 of the penal law is REPEALED.
  S 15. The district attorney may file a petition to seek the imposition
of  a  residency restriction for a sex offender whose victim was a child
under the age of eighteen and who is at liberty on the effective date of
this act. A petition filed pursuant to this section shall be filed  with
the sentencing court or the court which made the determination regarding
the level of notification of such offender within one year of the effec-
tive  date  of  this  act.  The petition shall set forth the reasons for
seeking the residency restriction and the district attorney  shall  bear
the  burden,  by  clear  and  convincing  evidence, of proving the facts
supporting the imposition of a residency restriction.  Upon receipt of a
petition submitted pursuant to this section, the court  shall  order  an
evaluation  pursuant  to  section  10.05  of  the mental hygiene law and
proceed in a manner consistent with section 168-n of the correction law.
The court shall determine whether to impose a residency  restriction  on
the  offender  named  in  the  petition.  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, in accordance with section 18-B of the coun-
ty law.
  S  16.  This  act  shall  take effect on the one hundred eightieth day
after it shall have become a law.