S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   1233
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 14, 2019
                                ___________
 
 Introduced  by  M.  of  A. M. G. MILLER -- read once and referred to the
   Committee on Correction
 
 AN ACT to amend the correction law,  in  relation  to  dissemination  of
   information  on  sex  offenders  from  another state who have not been
   assigned a risk level in this state

   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-k of the correction law, as
 amended by chapter 684 of the laws  of  2005,  is  amended  to  read  as
 follows:
   2.  The  division  shall  advise  the  board that the sex offender has
 established residence in this state. The board shall  determine  whether
 the  sex  offender  is  required to register with the division. If it is
 determined that the sex offender is required to register,  the  division
 shall  notify the sex offender of his or her duty to register under this
 article and shall require the sex offender to sign  a  form  as  may  be
 required by the division acknowledging that the duty to register and the
 procedure  for  registration has been explained to the sex offender. The
 division shall obtain on such form the address where  the  sex  offender
 expects to reside within the state and the sex offender shall retain one
 copy of the form and send two copies to the division which shall provide
 the  information to the law enforcement agency having jurisdiction where
 the sex offender expects to reside within this state.  IF THE SEX OFFEN-
 DER HAS NOT BEEN GIVEN A RISK  LEVEL  DESIGNATION  IN  THIS  STATE,  FOR
 PURPOSES  OF  DISSEMINATING  RELEVANT INFORMATION AND UNTIL SUCH TIME AS
 THE SEX OFFENDER HAS RECEIVED A RISK  LEVEL  DESIGNATION  IN  ACCORDANCE
 WITH  THIS  SECTION,  THE LAW ENFORCEMENT AGENCY HAVING JURISDICTION AND
 THE DIVISION MAY DISSEMINATE RELEVANT INFORMATION IN ACCORDANCE WITH THE
 PROVISIONS OF PARAGRAPH (B) OF SUBDIVISION SIX OF  SECTION  ONE  HUNDRED
 SIXTY-EIGHT-L,  SECTION ONE HUNDRED SIXTY-EIGHT-P AND SUBDIVISION ONE OF
 SECTION ONE HUNDRED SIXTY-EIGHT-Q OF THIS ARTICLE. WHEN THE SEX OFFENDER
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD00337-01-9

 A. 1233                             2
 
 HAS BEEN ASSIGNED A RISK LEVEL IN ACCORDANCE WITH THIS SECTION,  DISSEM-
 INATION  OF RELEVANT INFORMATION FOR THAT RISK LEVEL SHALL THEREAFTER BE
 MADE BY THE LAW ENFORCEMENT AGENCY HAVING JURISDICTION AND THE  DIVISION
 SHALL  BE  MADE  AS  PROVIDED IN THIS ARTICLE. 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  recom-
 mendation  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 recom-
 mendation  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. At least thirty days prior to the  deter-
 mination  proceeding,  such court shall notify the district attorney and
 the sex offender, in writing, of the date of the determination  proceed-
 ing  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  substan-
 tially  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 moder-
 ate), 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  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

 A. 1233                             3
 
 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. 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.
   § 2. This act shall take effect immediately.