S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   7254
 
                        2017-2018 Regular Sessions
 
                           I N  A S S E M B L Y
 
                              April 12, 2017
                                ___________
 
 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
 sex offender or the district attorney to obtain  materials  relevant  to

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

                                                            LBD03257-01-7

 A. 7254                             2

 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.
   §  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
 RECOMMENDATION AND RAMIFICATIONS OF CLASSIFICATION LEVEL, AND  A  STATE-

 A. 7254                             3
 
 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.
   § 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. 7254                             4
 
   § 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.
   § 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:
   § 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. 7254                             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. 7254                             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.
   § 6. This act shall take effect immediately.