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This entry was published on 2014-09-22
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SECTION 168-N
Judicial determination
Correction (COR) CHAPTER 43, ARTICLE 6-C
§ 168-n. Judicial determination. 1. A determination that an offender
is 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 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 recommendation 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
sentencing 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
determinations 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
relevant 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
determination proceeding and shall also provide the district attorney,
the sex offender and the sex offender's counsel 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 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 offender shall also advise the offender that he or she
has a right to a hearing 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 determinations 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 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 materials submitted by the board, and 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.

4. 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. 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
expungement of any records required to be kept herein.

6. 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 of this section.