Bill Text: NY S02090 | 2015-2016 | General Assembly | Introduced
Bill Title: Provides for disclosure of sexual offender information related to a patient or client.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Engrossed - Dead) 2016-01-21 - RECOMMIT, ENACTING CLAUSE STRICKEN [S02090 Detail]
Download: New_York-2015-S02090-Introduced.html
S T A T E O F N E W Y O R K
________________________________________________________________________
2090
2015-2016 Regular Sessions
I N S E N A T E
January 21, 2015
___________
Introduced by Sen. FLANAGAN -- read twice and ordered printed, and when
printed to be committed to the Committee on Mental Health and Develop-
mental Disabilities
AN ACT to amend the mental hygiene law, in relation to disclosure of
sexual offender information related to a patient or client, and to
amend the correction law, in relation to inclusion of certain persons
within the provisions of the sex offender registration act who have
had pleas accepted, or who have had verdicts entered with respect to
them, of not responsible by reason of mental disease or defect
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. Paragraph 9 of subdivision (c) of section 33.13 of the
2 mental hygiene law is amended by adding a new subparagraph (ix) to read
3 as follows:
4 (IX) APPROPRIATE PERSONS AND ENTITIES PURSUANT TO ARTICLE SIX-C OF THE
5 CORRECTION LAW, WHEN DISCLOSURE IS LIMITED TO SEXUAL OFFENDER REGISTRA-
6 TION INFORMATION NECESSARY TO ENSURE THE WELFARE AND SAFETY OF OTHERS.
7 S 2. Subdivision 1 of section 168-a of the correction law, as added by
8 chapter 192 of the laws of 1995, is amended to read as follows:
9 1. "Sex offender" includes any person who is convicted of any of the
10 offenses set forth in subdivision two or three of this section.
11 Convictions that result from or are connected with the same act, or
12 result from offenses committed at the same time, shall be counted for
13 the purpose of this article as one conviction. Any conviction set aside
14 pursuant to law is not a conviction for purposes of this article. FOR
15 PURPOSES OF THIS ARTICLE, THE TERM "SEX OFFENDER" SHALL BE DEEMED TO
16 INCLUDE A PERSON WHO HAS HAD A CRIMINAL ACTION COMMENCED AGAINST THEM BY
17 THE FILING OF AN ACCUSATORY INSTRUMENT, A SUPERIOR COURT INFORMATION, OR
18 INDICTMENT WHICH INCLUDES A CHARGE FOR THE COMMISSION OF ANY OF THE
19 OFFENSES SET FORTH IN SUBDIVISION TWO OR THREE OF THIS SECTION AND, WITH
20 RESPECT TO SUCH OFFENSE OR OFFENSES, HAS ENTERED A PLEA, WHICH IS
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD05298-01-5
S. 2090 2
1 ACCEPTED, OR HAS HAD A VERDICT ENTERED AGAINST SUCH PERSON, OF NOT
2 RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT. ANY SUCH PLEA OR
3 VERDICT WITH RESPECT TO SUCH OFFENSE OR OFFENSES SHALL BE CONSIDERED A
4 CONVICTION OF ALL OF THE OFFENSES SO CHARGED, OR THAT REMAIN AS CHARGED
5 OR OTHERWISE EXIST AT THE TIME OF THE ENTRY OF SUCH PLEA OR VERDICT, AS
6 MAY BE APPLICABLE, THAT FALL WITHIN THE DEFINITION OF SEX OFFENSE OR
7 SEXUALLY VIOLENT OFFENSE AS SET FORTH IN SUBDIVISION TWO OR THREE OF
8 THIS SECTION AND SHALL BE DEEMED TO BE A CONVICTION FOR ALL OTHER
9 PURPOSES OF THIS ARTICLE.
10 S 3. Paragraph (c) of subdivision 1 of section 168-b of the correction
11 law, as amended by chapter 507 of the laws of 2011, is amended to read
12 as follows:
13 (c) A description of the offense for which the sex offender was
14 convicted, the date of conviction and the sentence imposed including the
15 type of assigned supervision and the length of time of such supervision.
16 IN THE EVENT THAT SUCH CONVICTION IS DEEMED TO EXIST FROM THE ENTRY AND
17 ACCEPTANCE OF A PLEA, OR THE ENTRY OF A VERDICT, OF NOT RESPONSIBLE BY
18 REASON OF MENTAL DISEASE OR DEFECT AS DESCRIBED IN SUBDIVISION ONE OF
19 SECTION ONE HUNDRED SIXTY-EIGHT-A OF THIS ARTICLE, THE DATE OF
20 CONVICTION SHALL BE DEEMED TO BE THE DATE THE PLEA WAS ACCEPTED BY THE
21 COURT, OR THE DATE A VERDICT WAS ENTERED, OF NOT RESPONSIBLE BY REASON
22 OF MENTAL DISEASE OR DEFECT. IN LIEU OF A DESCRIPTION OF THE SENTENCE
23 IMPOSED WHERE A CONVICTION IS DEEMED TO EXIST AS A RESULT OF SUCH PLEA
24 OR VERDICT, THERE SHALL BE ENTERED A DESCRIPTION OF ALL PROCEEDINGS THAT
25 HAVE OCCURRED PURSUANT TO THE PROVISIONS OF ARTICLE THREE HUNDRED THIRTY
26 OF THE CRIMINAL PROCEDURE LAW.
27 S 4. Section 168-d of the correction law, as amended by chapter 11 of
28 the laws of 2002, paragraph (a) of subdivision 1 as amended by chapter
29 69 of the laws of 2003, paragraph (b) of subdivision 1 as amended by
30 chapter 74 of the laws of 2007, and subdivision 2 as amended and subdi-
31 vision 4 as added by chapter 684 of the laws of 2005, is amended to read
32 as follows:
33 S 168-d. Duties of the court. 1. (a) Except as provided in paragraphs
34 (b) and (c) of this subdivision, upon conviction of any of the offenses
35 set forth in subdivision two or three of section one hundred sixty-
36 eight-a of this article the court shall certify that the person is a sex
37 offender and shall include the certification in the order of commitment,
38 if any, and judgment of conviction OR IN AN ORDER ISSUED PURSUANT TO THE
39 PROVISIONS OF ARTICLE THREE HUNDRED THIRTY OF THE CRIMINAL PROCEDURE
40 LAW, except as provided in paragraph (e) of subdivision two of section
41 one hundred sixty-eight-a of this article. The court shall also advise
42 the sex offender of his or her duties under this article. Failure to
43 include the certification in the order of commitment [or], the judgment
44 of conviction, OR IN AN ORDER ISSUED PURSUANT TO THE PROVISIONS OF ARTI-
45 CLE THREE HUNDRED THIRTY OF THE CRIMINAL PROCEDURE LAW shall not relieve
46 a sex offender of the obligations imposed by this article.
47 (b) Where a defendant stands convicted of an offense defined in para-
48 graph (b) of subdivision two of section one hundred sixty-eight-a of
49 this article or where the defendant was convicted of patronizing a pros-
50 titute in the third degree under section 230.04 of the penal law and the
51 defendant controverts an allegation that the victim of such offense was
52 less than eighteen years of age or, in the case of a conviction under
53 section 230.04 of the penal law, less than seventeen years of age, the
54 court, without a jury, shall, prior to sentencing OR ISSUING AN ORDER
55 PURSUANT TO THE PROVISIONS OF ARTICLE THREE HUNDRED THIRTY OF THE CRIMI-
56 NAL PROCEDURE LAW, conduct a hearing, and the people may prove by clear
S. 2090 3
1 and convincing evidence that the victim was less than eighteen years of
2 age or less than seventeen years of age, as applicable, by any evidence
3 admissible under the rules applicable to a trial of the issue of guilt.
4 The court in addition to such admissible evidence may also consider
5 reliable hearsay evidence submitted by either party provided that it is
6 relevant to the determination of the age of the victim. Facts concerning
7 the age of the victim proven at trial or ascertained at the time of
8 entry of a plea of guilty, OR FACTS CONCERNING THE AGE OF THE VICTIM
9 ASCERTAINED AT THE TIME A PLEA IS ENTERED, WHICH IS ACCEPTED BY THE
10 COURT, OR AT A TRIAL WHERE VERDICT IS ENTERED AGAINST SUCH PERSON, OF
11 NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT, shall be deemed
12 established by clear and convincing evidence and shall not be reliti-
13 gated. At the conclusion of the hearing, or if the defendant does not
14 controvert an allegation that the victim of the offense was less than
15 eighteen years of age or less than seventeen years of age, as applica-
16 ble, the court must make a finding and enter an order setting forth the
17 age of the victim. If the court finds that the victim of such offense
18 was under eighteen years of age or under seventeen years of age, as
19 applicable, the court shall certify the defendant as a sex offender, the
20 provisions of paragraph (a) of this subdivision shall apply and the
21 defendant shall register with the division in accordance with the
22 provisions of this article.
23 (c) Where a defendant stands convicted of an offense defined in para-
24 graph (c) of subdivision two of section one hundred sixty-eight-a of
25 this article and the defendant controverts an allegation that the
26 defendant was previously convicted of a sex offense or a sexually
27 violent offense defined in this article or has previously been convicted
28 of or convicted for an attempt to commit any of the provisions of
29 section 130.52 or 130.55 of the penal law, the court, without a jury,
30 shall, prior to sentencing OR ISSUING AN ORDER PURSUANT TO THE
31 PROVISIONS OF ARTICLE THREE HUNDRED THIRTY OF THE CRIMINAL PROCEDURE
32 LAW, conduct a hearing, and the people may prove by clear and convincing
33 evidence that the defendant was previously convicted of a sex offense or
34 a sexually violent offense defined in this article or has previously
35 been convicted of or convicted for an attempt to commit any of the
36 provisions of section 130.52 or 130.55 of the penal law, by any evidence
37 admissible under the rules applicable to a trial of the issue of guilt.
38 The court in addition to such admissible evidence may also consider
39 reliable hearsay evidence submitted by either party provided that it is
40 relevant to the determination of whether the defendant was previously
41 convicted of a sex offense or a sexually violent offense defined in this
42 article or has previously been convicted of or convicted for an attempt
43 to commit any of the provisions of section 130.52 or 130.55 of the penal
44 law. At the conclusion of the hearing, or if the defendant does not
45 controvert an allegation that the defendant was previously convicted of
46 a sex offense or a sexually violent offense defined in this article or
47 has previously been convicted of or convicted for an attempt to commit
48 any of the provisions of section 130.52 or 130.55 of the penal law, the
49 court must make a finding and enter an order determining whether the
50 defendant was previously convicted of a sex offense or a sexually
51 violent offense defined in this article or has previously been convicted
52 of or convicted for an attempt to commit any of the provisions of
53 section 130.52 or 130.55 of the penal law. If the court finds that the
54 defendant has such a previous conviction, the court shall certify the
55 defendant as a sex offender, the provisions of paragraph (a) of this
S. 2090 4
1 subdivision shall apply and the defendant shall register with the divi-
2 sion in accordance with the provisions of this article.
3 2. Any sex offender, who is released on probation or discharged upon
4 payment of a fine, conditional discharge or unconditional discharge OR
5 IS RELEASED OR DISCHARGED PURSUANT TO THE PROVISIONS OF ARTICLE THREE
6 HUNDRED THIRTY OF THE CRIMINAL PROCEDURE LAW shall, prior to such
7 release or discharge, be informed of his or her duty to register under
8 this article by the court in which he or she was convicted OR BY THE
9 COURT ISSUING AN ORDER PURSUANT TO THE PROVISIONS OF ARTICLE THREE
10 HUNDRED THIRTY OF THE CRIMINAL PROCEDURE LAW. At the time sentence is
11 imposed OR AT THE TIME THAT THE COURT ISSUES AN ORDER PURSUANT TO THE
12 PROVISIONS OF ARTICLE THREE HUNDRED THIRTY OF THE CRIMINAL PROCEDURE
13 LAW, such sex offender shall register with the division on a form
14 prepared by the division. The court shall require the sex offender to
15 read and sign such form and to complete the registration portion of such
16 form. The court shall on such form obtain the address where the sex
17 offender expects to reside upon his or her release, and the name and
18 address of any institution of higher education he or she expects to be
19 employed by, enrolled in, attending or employed, whether for compen-
20 sation or not, and whether he or she expects to reside in a facility
21 owned or operated by such an institution, AND, IF APPLICABLE, A COPY OF
22 THE ORDER ISSUED, AND DESCRIPTION OF ALL PROCEEDINGS THAT HAVE OCCURRED,
23 PURSUANT TO THE PROVISIONS OF ARTICLE THREE HUNDRED THIRTY OF THE CRIMI-
24 NAL PROCEDURE LAW and shall report such information to the division. The
25 court shall give one copy of the form to the sex offender and shall send
26 two copies to the division which shall forward the information to the
27 law enforcement agencies having jurisdiction. The court shall also noti-
28 fy the district attorney and the sex offender of the date of the deter-
29 mination proceeding to be held pursuant to subdivision three of this
30 section, which shall be held at least forty-five days after such notice
31 is given. This notice shall include the following statement or a
32 substantially similar statement: "This proceeding is being held to
33 determine whether you will be classified as a level 3 offender (risk of
34 repeat offense is high), a level 2 offender (risk of repeat offense is
35 moderate), or a level 1 offender (risk of repeat offense is low), or
36 whether you will be designated as a sexual predator, a sexually violent
37 offender or a predicate sex offender, which will determine how long you
38 must register as a sex offender and how much information can be provided
39 to the public concerning your registration. If you fail to appear at
40 this proceeding, without sufficient excuse, it shall be held in your
41 absence. Failure to appear may result in a longer period of registration
42 or a higher level of community notification because you are not present
43 to offer evidence or contest evidence offered by the district attorney."
44 The court shall also advise the sex offender that he or she has a right
45 to a hearing prior to the court's determination, that he or she has the
46 right to be represented by counsel at the hearing and that counsel will
47 be appointed if he or she is financially unable to retain counsel. If
48 the sex offender applies for assignment of counsel to represent him or
49 her at the hearing and counsel was not previously assigned to represent
50 the sex offender in the underlying criminal action, the court shall
51 determine whether the offender is financially unable to retain counsel.
52 If such a finding is made, the court shall assign counsel to represent
53 the sex offender pursuant to article eighteen-B of the county law. Where
54 the court orders a sex offender released on probation, such order must
55 include a provision requiring that he or she comply with the require-
56 ments of this article. Where such sex offender violates such provision,
S. 2090 5
1 probation may be immediately revoked in the manner provided by article
2 four hundred ten of the criminal procedure law.
3 3. For sex offenders released on probation or discharged upon payment
4 of a fine, conditional discharge or unconditional discharge, OR RELEASED
5 OR DISCHARGED PURSUANT TO THE PROVISIONS OF ARTICLE THREE HUNDRED THIRTY
6 OF THE CRIMINAL PROCEDURE LAW, it shall be the duty of the court apply-
7 ing the guidelines established in subdivision five of section one
8 hundred sixty-eight-l of this article to determine the level of notifi-
9 cation pursuant to subdivision six of section one hundred sixty-eight-l
10 of this article and whether such sex offender shall be designated a
11 sexual predator, sexually violent offender, or predicate sex offender as
12 defined in subdivision seven of section one hundred sixty-eight-a of
13 this article. At least fifteen days prior to the determination proceed-
14 ing, the district attorney shall provide to the court and the sex offen-
15 der a written statement setting forth the determinations sought by the
16 district attorney together with the reasons for seeking such determi-
17 nations. The court shall allow the sex offender to appear and be heard.
18 The state shall appear by the district attorney, or his or her designee,
19 who shall bear the burden of proving the facts supporting the determi-
20 nations sought by clear and convincing evidence. Where there is a
21 dispute between the parties concerning the determinations, the court
22 shall adjourn the hearing as necessary to permit the sex offender or the
23 district attorney to obtain materials relevant to the determinations
24 from any state or local facility, hospital, institution, office, agency,
25 department or division. Such materials may be obtained by subpoena if
26 not voluntarily provided to the requesting party. In making the determi-
27 nations, the court shall review any victim's statement and any relevant
28 materials and evidence submitted by the sex offender and the district
29 attorney and the court may consider reliable hearsay evidence submitted
30 by either party provided that it is relevant to the determinations.
31 Facts previously proven at trial or elicited at the time of entry of a
32 plea of guilty OR PREVIOUSLY ELICITED AT THE TIME A PLEA IS ENTERED,
33 WHICH IS ACCEPTED BY THE COURT, OR ARE PROVEN AT A TRIAL WHERE A VERDICT
34 HAS BEEN ENTERED, OF NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR
35 DEFECT shall be deemed established by clear and convincing evidence and
36 shall not be relitigated. The court shall render an order setting forth
37 its determinations and the findings of fact and conclusions of law on
38 which the determinations are based. A copy of the order shall be submit-
39 ted by the court to the division. Upon application of either party, the
40 court shall seal any portion of the court file or record which contains
41 material that is confidential under any state or federal statute. Either
42 party may appeal as of right from the order pursuant to the provisions
43 of articles fifty-five, fifty-six and fifty-seven of the civil practice
44 law and rules. Where counsel has been assigned to represent the sex
45 offender upon the ground that the sex offender is financially unable to
46 retain counsel, that assignment shall be continued throughout the
47 pendency of the appeal, and the person may appeal as a poor person
48 pursuant to article eighteen-B of the county law.
49 4. If a sex offender, having been given notice, including the time and
50 place of the determination proceeding in accordance with this section,
51 fails to appear at this proceeding, without sufficient excuse, the court
52 shall conduct the hearing and make the determinations in the manner set
53 forth in subdivision three of this section.
54 S 5. Section 29.16 of the mental hygiene law, as amended by chapter
55 465 of the laws of 1992, is amended to read as follows:
56 S 29.16 Discharge OR RELEASE; certain cases.
S. 2090 6
1 (A) The director of a facility shall, with respect to any patient
2 admitted to such facility pursuant to section five hundred nine of the
3 executive law or 353.4 of the family court act and article nine or
4 fifteen of this chapter, give immediate written notice to the [director
5 of the division for youth] OFFICE OF CHILDREN AND FAMILY SERVICES and to
6 the mental hygiene legal service when any such patient leaves the facil-
7 ity without the consent of its director. Such patient shall not be
8 discharged so long as there is a valid order of the family court placing
9 such person with the [division for youth] OFFICE OF CHILDREN AND FAMILY
10 SERVICES, except in accordance with the provisions of section five
11 hundred nine of the executive law or section 353.4 of the family court
12 act.
13 (B) NOTWITHSTANDING ANY PROVISIONS OF LAW TO THE CONTRARY, PRIOR TO
14 THE DISCHARGE OR RELEASE, INCLUDING A COURT ORDERED RELEASE, FROM A
15 DEPARTMENT FACILITY OF A PATIENT WHO IS A SEX OFFENDER REQUIRED TO
16 REGISTER PURSUANT TO ARTICLE SIX-C OF THE CORRECTION LAW, THE DIRECTOR
17 OF A FACILITY SHALL CONTACT THE DIVISION OF CRIMINAL JUSTICE SERVICES
18 (HEREIN THE "DIVISION") TO DETERMINE WHETHER OR NOT SUCH PATIENT HAS
19 REGISTERED A CHANGE OF ADDRESS PURSUANT TO THE PROVISIONS OF SUBDIVISION
20 FOUR OF SECTION ONE HUNDRED SIXTY-EIGHT-F OF THE CORRECTION LAW. IN THE
21 EVENT THAT THE DIRECTOR DETERMINES THAT SUCH PATIENT HAS FAILED TO
22 PROVIDE THE DIVISION WITH THE NOTIFICATION OF CHANGE OF ADDRESS WHICH
23 WILL PROVIDE THE DIVISION WITH THE PATIENT'S INTENDED NEW ADDRESS WHICH
24 WILL TAKE EFFECT UPON SUCH DISCHARGE OR RELEASE, THE DIRECTOR IMMEDIATE-
25 LY SHALL NOTIFY THE PATIENT AND THE MENTAL HYGIENE LEGAL SERVICE OF THE
26 REQUIREMENTS OF REGISTERING A CHANGE OF ADDRESS PURSUANT TO SUCH
27 PROVISIONS OF THE CORRECTION LAW. NOTWITHSTANDING THE PROVISIONS OF
28 SECTION ONE HUNDRED SIXTY-EIGHT-F OF THE CORRECTION LAW, THE DIRECTOR OF
29 A FACILITY IS AUTHORIZED TO DELAY THE IMPLEMENTATION OF THE DISCHARGE OR
30 RELEASE, INCLUDING A COURT ORDERED RELEASE, OF SUCH PATIENT FOR A PERIOD
31 OF UP TO TEN DAYS OR UNTIL THE DATE THAT SUCH PATIENT COMPLIES WITH THE
32 REGISTRATION REQUIREMENTS OF SUCH PROVISIONS OF THE CORRECTION LAW,
33 WHICHEVER OCCURS FIRST.
34 S 6. Section 29.17 of the mental hygiene law is amended to read as
35 follows:
36 S 29.17 Clothing and money to be furnished patients discharged or
37 released.
38 No patient shall be discharged or released from a department facility
39 without suitable clothing adapted to the season in which he OR SHE is
40 discharged or released; and if it cannot be otherwise obtained, the
41 facility shall upon the order of the director, or of the commissioner,
42 as the case may be, furnish the same, and money not exceeding fifty
43 dollars, to defray his OR HER expenses until he OR SHE can reach his OR
44 HER relatives or friends, or find employment to earn a subsistence. THE
45 FACILITY, UPON THE ORDER OF THE DIRECTOR, OR OF THE COMMISSIONER, AS THE
46 CASE MAY BE, SHALL FURNISH A PATIENT, WHO IS A SEX OFFENDER AND IS
47 REQUIRED TO REGISTER A CHANGE OF ADDRESS PURSUANT TO SUBDIVISION FOUR OF
48 SECTION ONE HUNDRED SIXTY-EIGHT-F OF THE CORRECTION LAW, WITH MONEY, IN
49 AN AMOUNT EQUAL TO THE STATUTORY AMOUNT CHARGED BY THE DIVISION OF CRIM-
50 INAL JUSTICE SERVICES TO DEFRAY THE EXPENSE OF REGISTERING HIS OR HER
51 CHANGE OF ADDRESS WITH THE DIVISION, AT OR PRIOR TO THE DATE OF SUCH
52 DISCHARGE OR RELEASE.
53 S 7. Paragraph a of subdivision 2 of section 168-b of the correction
54 law, as amended by chapter 645 of the laws of 2005, is amended to read
55 as follows:
S. 2090 7
1 a. The division is authorized to make the registry available to any
2 regional or national registry of sex offenders for the purpose of shar-
3 ing information OR TO THE COMMISSIONER OF MENTAL HEALTH OR THE COMMIS-
4 SIONER OF DEVELOPMENTAL DISABILITIES. The division shall accept files
5 from any regional or national registry of sex offenders and shall make
6 such files available when requested pursuant to the provisions of this
7 article.
8 S 8. This act shall take effect on the one hundred eightieth day after
9 it shall have become a law.
