S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8580
 
                           I N  A S S E M B L Y
 
                             January 12, 2024
                                ___________
 
 Introduced  by  M. of A. GONZALEZ-ROJAS -- read once and referred to the
   Committee on Correction
 
 AN ACT to amend the correction law, in relation to  allowing  discretion
   in  requiring  sex  offender  registration  for  persons  convicted of
   certain sex offenses in other states and to amend the definition of  a
   sexually violent offense

   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Subparagraph (iii) of paragraph (d)  of  subdivision  2  of
 section  168-a  of  the correction law, as amended by chapter 232 of the
 laws of 2008, is amended to read as follows:
   (iii) any of the provisions of 18 U.S.C. 2251,  18  U.S.C.  2251A,  18
 U.S.C.  2252,  18  U.S.C.  2252A,  18 U.S.C. 2260, 18 U.S.C. 2422(b), 18
 U.S.C. 2423, or 18 U.S.C. 2425, provided that the elements of such crime
 of conviction are substantially the same as those which are  a  part  of
 such  offense as of the date on which this subparagraph takes effect, OR
 (IV) NOTWITHSTANDING ANY OTHER LAW, A PERSON CONVICTED IN ANOTHER JURIS-
 DICTION OF AN OFFENSE SIMILAR TO SECTION TWENTY-THREE HUNDRED  SEVEN  OF
 THE  PUBLIC HEALTH LAW OR ANY OFFENSE BASED ON EXPOSURE TO A TRANSMISSI-
 BLE DISEASE OR VIRUS, OR FORMER SECTION 130.38 OF THE PENAL LAW RELATING
 TO CONSENSUAL SODOMY, OR SECTION 230.00 OF  THE  PENAL  LAW,  OR  FORMER
 SECTION  240.37  OF THE PENAL LAW RELATING TO LOITERING FOR THE PURPOSES
 OF ENGAGING IN A PROSTITUTION OFFENSE WHO IS REQUIRED TO REGISTER IN THE
 JURISDICTION OF CONVICTION SHALL NOT BE REQUIRED TO REGISTER IN NEW YORK
 UNLESS THE OUT-OF-STATE OFFENSE, BASED ON THE ELEMENTS OF THE CONVICTION
 OFFENSE OR PROVEN OR STIPULATED  FACTS  IN  THE  RECORD  OF  CONVICTION,
 CONTAINS  ALL  OF  THE  ELEMENTS  OF  A  REGISTERABLE  NEW  YORK OFFENSE
 DESCRIBED IN PARAGRAPH (A), (B) OR (C) OF THIS SUBDIVISION.
   § 2. Paragraph (b) of subdivision 3 of section 168-a of the correction
 law, as amended by chapter 11 of the laws of 2002, is amended to read as
 follows:
   (b) a conviction  of  an  offense  in  any  other  jurisdiction  which
 includes  all  of the essential elements of any such felony provided for
 in paragraph (a) of this subdivision [or conviction of a felony  in  any

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

                                                            LBD13795-01-3
 A. 8580                             2

 other  jurisdiction  for which the offender is required to register as a
 sex offender in the jurisdiction in which the conviction occurred].
   § 3. Paragraph (a) of subdivision 1 of section 168-d of the correction
 law, as amended by chapter 69 of the laws of 2003, is amended to read as
 follows:
   (a)  Except as provided in paragraphs (b) and (c) of this subdivision,
 upon conviction of any of the offenses set forth in subdivision  two  or
 three  of  section  one  hundred sixty-eight-a of this article the court
 shall certify that the person is a sex offender and  shall  include  the
 certification  in  the  order  of  commitment,  if  any, and judgment of
 conviction, except as provided in SUBPARAGRAPH (IV) OF PARAGRAPH (D)  OF
 SUBDIVISION  TWO OF SECTION ONE HUNDRED SIXTY-EIGHT-A OF THIS ARTICLE OR
 paragraph (e) of subdivision two of section one hundred sixty-eight-a of
 this article. The court shall also advise the sex offender of his or her
 duties under this article. Failure to include the certification  in  the
 order  of  commitment  or the judgment of conviction shall not relieve a
 sex offender of the obligations imposed by this article.
   § 4. Subdivision 4 of section 168-o of the correction  law  is  renum-
 bered subdivision 5 and a new subdivision 4 is added to read as follows:
   4. ANY SEX OFFENDER REQUIRED TO REGISTER PURSUANT TO SUBPARAGRAPH (II)
 OF PARAGRAPH (D) OF SUBDIVISION TWO OF SECTION ONE HUNDRED SIXTY-EIGHT-A
 OF  THIS  ARTICLE  PRIOR  TO  THE EFFECTIVE DATE OF THIS SUBDIVISION MAY
 PETITION THE COURT WHICH MADE THE DETERMINATION  REGARDING  REGISTRATION
 OR  THE  LEVEL  OF NOTIFICATION FOR AN ORDER REMOVING THE REQUIREMENT TO
 REGISTER IF SUCH REGISTRATION WAS  BASED  ON  AN  OFFENSE  DESCRIBED  IN
 SUBPARAGRAPH  (IV)  OF  PARAGRAPH  (D) OF SUBDIVISION TWO OF SECTION ONE
 HUNDRED SIXTY-EIGHT-A OF THIS ARTICLE. THE PETITION SHALL SET FORTH  THE
 REASONS  FOR SEEKING SUCH DETERMINATION. THE SEX OFFENDER SHALL BEAR THE
 BURDEN OF PROVING THE FACTS SUPPORTING  THE  REQUESTED  LIFTING  OF  THE
 REQUIREMENT  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  LIFT THE REGISTRATION REQUIREMENT 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  REPRE-
 SENT  THE  SEX  OFFENDER UPON THE GROUND THAT THE SEX OFFENDER IS FINAN-
 CIALLY UNABLE TO RETAIN COUNSEL,  SUCH  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.
   § 5. Subdivision 5 of section 168-o of the correction law, as added by
 chapter 453 of the laws of 1999 and as renumbered  by  section  four  of
 this act, is amended to read as follows:
   5.  Upon  receipt of a petition submitted pursuant to subdivision one,
 two [or], three, OR FOUR 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
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 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 confi-
 dential and shall not be available for public inspection. After  receiv-
 ing  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 notify 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 rele-
 vant  materials  and  evidence  submitted  by  the  sex offender and the
 district attorney, the court may grant or deny the petition.  The  court
 may  also consult with the victim prior to making a determination on the
 petition. The court shall render an order  setting  forth  its  determi-
 nation,  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.
   § 6. Subdivision 5 of section 168-n of the correction law, as  amended
 by chapter 453 of the laws of 1999, is amended to read as follows:
   5.  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, OR A DETERMINATION TO LIFT THE
 REGISTRATION REQUIREMENT MADE PURSUANT TO SUBDIVISION  FOUR  OF  SECTION
 ONE  HUNDRED  SIXTY-EIGHT-O  OF  THIS ARTICLE, the appellate court shall
 remand the case to the lower court for entry of an order  directing  the
 expungement of any records required to be kept herein.
   § 7. This act shall take effect immediately.