S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   7958
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                               May 29, 2019
                                ___________
 
 Introduced  by  M.  of  A.  QUART  -- (at request of the Office of Court
   Administration)  --  read  once  and  referred  to  the  Committee  on
   Correction
 
 AN  ACT to amend the correction law, in relation to provisional determi-
   nations involving risk levels for certain sex offenders

   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1. The correction law is amended by adding a new section 168-
 nn to read as follows:
   § 168-NN. PROVISIONAL SEX OFFENDER RISK LEVEL DETERMINATIONS. 1.    IN
 ANY  CASE  WHERE  IT IS ANTICIPATED THAT A RISK LEVEL WILL NOT BE SET BY
 THE DATE OF AN INMATE'S SCHEDULED DISCHARGE, PAROLE OR RELEASE,  FROM  A
 CORRECTIONAL  FACILITY,  LOCAL  CORRECTIONAL  FACILITY  OR HOSPITAL, THE
 COURT MAY ISSUE A PROVISIONAL SEX OFFENDER RISK LEVEL  DETERMINATION.  A
 PROVISIONAL SEX OFFENDER RISK LEVEL DETERMINATION SHALL ESTABLISH WHETH-
 ER THE OFFENDER IS A SEXUAL PREDATOR, SEXUALLY VIOLENT OFFENDER OR PRED-
 ICATE  SEX  OFFENDER  AS  DEFINED  IN  SUBDIVISION  SEVEN OF SECTION ONE
 HUNDRED SIXTY-EIGHT-A OF THIS ARTICLE. SUCH A DETERMINATION  SHALL  ALSO
 ESTABLISH WHETHER THE OFFENDER IS DESIGNATED A LEVEL ONE OFFENDER AT LOW
 RISK TO RE-OFFEND; A LEVEL TWO OFFENDER AT MODERATE RISK TO RE-OFFEND OR
 A LEVEL THREE OFFENDER AT HIGH RISK TO RE-OFFEND.
   2.  WITH RESPECT TO WHETHER AN OFFENDER IS DESIGNATED AS BEING AT LOW,
 MODERATE OR HIGH RISK TO RE-OFFEND, THE COURT SHALL PRESUMPTIVELY ESTAB-
 LISH SUCH RISK LEVEL AS: (I) THE LEVEL AGREED UPON BY  THE  PARTIES,  IF
 THE  PARTIES  AGREE ON A LEVEL, OR (II) IF THE PARTIES DO NOT AGREE ON A
 LEVEL, THE LEVEL RECOMMENDED BY THE BOARD OF EXAMINERS OF SEX  OFFENDERS
 BASED  ON  THE  BOARD'S POINT SCORE, WITHOUT CONSIDERING ANY RECOMMENDED
 DEPARTURE BY THE BOARD. THE COURT MAY ESTABLISH A PROVISIONAL SEX OFFEN-
 DER RISK LEVEL DETERMINATION WHICH DIFFERS FROM  THESE  PRESUMPTIONS  IF
 THE COURT DEEMS THAT APPROPRIATE, AFTER PROVIDING FINDINGS ON THE RECORD
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD09349-02-9
              

 A. 7958                             2
 
 AS  TO  WHY  THE  COURT  HAS  MADE A PROVISIONAL SEX OFFENDER RISK LEVEL
 DETERMINATION WHICH DEPARTS FROM SUCH PRESUMPTIONS.
   3.  A  PROVISIONAL SEX OFFENDER RISK LEVEL DETERMINATION MAY BE EFFEC-
 TIVE FOR A PERIOD NOT TO  EXCEED  NINETY  DAYS.  SUCH  A  DETERMINATION,
 DURING  THE PERIOD IT IS IN EFFECT, SHALL HAVE THE SAME LEGAL FORCE AS A
 JUDICIAL DETERMINATION FOLLOWING  A  HEARING  PURSUANT  TO  SECTION  ONE
 HUNDRED SIXTY-EIGHT-N OF THIS ARTICLE.  UPON A DETERMINATION PURSUANT TO
 SECTION  ONE  HUNDRED  SIXTY-EIGHT-N OF THIS ARTICLE, THAT DETERMINATION
 SHALL REPLACE AND SUPERCEDE A PROVISIONAL SEX OFFENDER RISK LEVEL DETER-
 MINATION. A PROVISIONAL SEX OFFENDER RISK LEVEL DETERMINATION SHALL  NOT
 BE  DEEMED  TO  HAVE  ANY  PRESUMPTIVE  EFFECT OR EVIDENTIARY VALUE WITH
 RESPECT TO A DETERMINATION PURSUANT TO SECTION ONE HUNDRED SIXTY-EIGHT-N
 OF THIS ARTICLE. A PERSON SUBJECT TO A  PROVISIONAL  SEX  OFFENDER  RISK
 LEVEL  DETERMINATION  SHALL  HAVE  THE SAME RIGHT TO COUNSEL AS PROVIDED
 PURSUANT TO SECTION ONE HUNDRED SIXTY-EIGHT-N OF THIS ARTICLE.
   4. A PROVISIONAL SEX OFFENDER RISK  LEVEL  DETERMINATION  MAY  NOT  BE
 ISSUED  WITHOUT  A DEFENDANT'S CONSENT, PROVIDED, HOWEVER, THAT IF IT IS
 ANTICIPATED A DEFENDANT WILL BE DISCHARGED, PAROLED OR RELEASED  FROM  A
 CORRECTIONAL  FACILITY, LOCAL CORRECTIONAL FACILITY OR HOSPITAL PRIOR TO
 A JUDICIAL DETERMINATION PURSUANT TO SECTION ONE  HUNDRED  SIXTY-EIGHT-N
 OF  THIS  ARTICLE,  SUCH  CONSENT SHALL NOT BE REQUIRED. THE COURT SHALL
 ALLOW THE PARTIES TO BE HEARD IN WRITING OR ON THE RECORD PRIOR  TO  THE
 SETTING  OF  A  PROVISIONAL SEX OFFENDER RISK LEVEL DETERMINATION, BUT A
 DEFENDANT'S PERSONAL APPEARANCE SHALL  NOT  BE  REQUIRED  PRIOR  TO  THE
 SETTING OF SUCH A PROVISIONAL RISK LEVEL.
   5. NOTWITHSTANDING ANY OTHER PROVISION OF THIS SECTION, TO PREVENT THE
 POSTING  OF  RISK  LEVEL INFORMATION ON THE INTERNET WHICH MAY NOT ACCU-
 RATELY REFLECT AN OFFENDER'S FINAL RISK LEVEL DETERMINATION, PROVISIONAL
 SEX OFFENDER RISK LEVEL DETERMINATIONS SHALL NOT BE POSTED ON THE INTER-
 NET PURSUANT TO SECTION ONE HUNDRED SIXTY-EIGHT-Q  OF  THIS  ARTICLE  OR
 OTHER  PROVISIONS  OF THIS ARTICLE, PROVIDED, HOWEVER, THAT UPON A JUDI-
 CIAL DETERMINATION OF A SEX OFFENDER'S RISK LEVEL  PURSUANT  TO  SECTION
 ONE  HUNDRED  SIXTY-EIGHT-N OF THIS ARTICLE, THE DIVISION SHALL PROMPTLY
 PLACE THE REQUIRED INFORMATION FOR ANY LEVEL TWO OR THREE  SEX  OFFENDER
 ON  THE  SUBDIRECTORY ESTABLISHED PURSUANT TO SECTION ONE HUNDRED SIXTY-
 EIGHT-Q OF THIS ARTICLE AND MAKE SUCH LISTING AVAILABLE AT ALL TIMES  ON
 THE INTERNET VIA THE DIVISION HOMEPAGE, PURSUANT TO SUCH SECTION.
   §  2.  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  [within  sixty]  AT  LEAST
 NINETY 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.
   § 3. Subdivision 2 of section 168-n of the correction law, as  amended
 by chapter 453 of the laws of 1999, is amended to read as follows:

 A. 7958                             3
 
   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] AT LEAST  FIFTEEN
 calendar days prior to discharge, parole or release.
   §  4.  This  act shall take effect on the thirtieth day after it shall
 have become a law.