S T A T E O F N E W Y O R K
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20
2019-2020 Regular Sessions
I N A S S E M B L Y
(PREFILED)
January 9, 2019
___________
Introduced by M. of A. PERRY -- Multi-Sponsored by -- M. of A. COLTON,
GALEF, GUNTHER, JAFFEE, LUPARDO, TITUS -- read once and referred to
the Committee on Correction
AN ACT to amend the correction law, in relation to tracking certain sex
offenders with a global positioning system
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 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; AND, IF SUCH SEX OFFENDER HAS
BEEN CONVICTED OF AN OFFENSE INVOLVING A CHILD AND DESIGNATED A LEVEL
THREE OFFENDER AND A SEXUAL PREDATOR OR PREDICATE SEX OFFENDER, THE
PERIOD OF TIME SUCH SEX OFFENDER SHALL SUBMIT TO GLOBAL POSITIONING
SYSTEM MONITORING AS PROVIDED IN SUBDIVISION THREE-A OF SECTION ONE
HUNDRED SIXTY-EIGHT-F 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
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD02542-01-9
A. 20 2
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 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.
§ 2. Section 168-f of the correction law is amended by adding a new
subdivision 3-a to read as follows:
3-A. THE PROVISIONS OF SUBDIVISION TWO OF THIS SECTION SHALL BE
APPLIED TO A SEX OFFENDER REQUIRED TO REGISTER UNDER THIS ARTICLE EXCEPT
THAT A SEX OFFENDER CONVICTED OF AN OFFENSE INVOLVING A CHILD AND DESIG-
NATED A LEVEL THREE OFFENDER AND A SEXUAL PREDATOR OR PREDICATE SEX
OFFENDER, MUST ALSO BE FITTED WITH A GLOBAL POSITIONING SYSTEM MONITOR
IMMEDIATELY UPON RELEASE OR COMMENCEMENT OF PAROLE OR POST-RELEASE
SUPERVISION, OR PROBATION, OR RELEASE ON PAYMENT OF A FINE, CONDITIONAL
DISCHARGE OR UNCONDITIONAL DISCHARGE. SUCH GLOBAL POSITIONING DEVICE
SHALL BE PROGRAMMED TO SEND FORTH AN ALARM WHEN SUCH SEX OFFENDER LEAVES
A CERTAIN JURISDICTION OR ENTERS A FORBIDDEN AREA. THE PERIOD OF SUCH
MONITORING FOR SUCH SEX OFFENDER SHALL BE DETERMINED BY THE COURT, AS
PROVIDED IN SUBDIVISION THREE OF SECTION ONE HUNDRED SIXTY-EIGHT-D OF
THIS ARTICLE. THE DIVISION SHALL ANNUALLY EVALUATE SUCH SEX OFFENDER'S
FINANCIAL ABILITY TO OFFSET THE COST OF ADMINISTERING THE GLOBAL POSI-
TIONING SYSTEM AND LEVY SUCH ASSESSMENT UPON SUCH OFFENDER. FAILURE TO
PAY SUCH ASSESSMENT SHALL RESULT IN A FINANCIAL HARDSHIP HEARING AS
PROVIDED IN SECTION 420.40 OF THE CRIMINAL PROCEDURE LAW. SUCH SEX
OFFENDER SHALL HAVE THE RIGHT TO PETITION FOR RELIEF OR MODIFICATION OF
SUCH DUTY TO WEAR A GLOBAL POSITIONING SYSTEM MONITOR AS PROVIDED IN
SUBDIVISION TWO-A OF SECTION ONE HUNDRED SIXTY-EIGHT-O OF THIS ARTICLE.
THE DUTY TO WEAR A GLOBAL POSITIONING SYSTEM MONITOR SHALL BE TEMPORAR-
ILY SUSPENDED DURING ANY PERIOD IN WHICH SUCH SEX OFFENDER IS CONFINED
TO ANY STATE OR LOCAL CORRECTIONAL FACILITY, HOSPITAL OR INSTITUTION AND
SHALL IMMEDIATELY RECOMMENCE ON THE DATE OF SUCH SEX OFFENDER'S RELEASE.
§ 3. Section 168-o of the correction law is amended by adding a new
subdivision 2-a to read as follows:
A. 20 3
2-A. ANY SEX OFFENDER REQUIRED TO WEAR A GLOBAL POSITIONING SYSTEM
MONITOR PURSUANT TO THIS ARTICLE MAY PETITION THE SENTENCING COURT OR
THE COURT WHICH MADE THE DETERMINATION REGARDING SUCH MONITORING FOR AN
ORDER MODIFYING OR TERMINATING THE MONITORING PORTION OF THE DETERMI-
NATION. THE PETITION SHALL SET FORTH THE REASONS SUPPORTING SUCH MODIFI-
CATION OR TERMINATION. THE SEX OFFENDER SHALL BEAR THE BURDEN OF PROVING
THE FACTS SUPPORTING THE REQUESTED MODIFICATION OR TERMINATION BY CLEAR
AND CONVINCING EVIDENCE. SUCH A PETITION SHALL NOT BE CONSIDERED MORE
THAN ANNUALLY. IN THE EVENT THAT THE SEX OFFENDER'S PETITION TO MODIFY
THE LEVEL OF NOTIFICATION IS GRANTED, THE DISTRICT ATTORNEY 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 ARTI-
CLE EIGHTEEN-B OF THE COUNTY LAW.
§ 4. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.