Bill Text: NY A02190 | 2015-2016 | General Assembly | Introduced
Bill Title: Relates to sex offender risk assessment instruments.
Spectrum: Partisan Bill (Democrat 5-0)
Status: (Engrossed - Dead) 2016-01-06 - ordered to third reading cal.105 [A02190 Detail]
Download: New_York-2015-A02190-Introduced.html
S T A T E O F N E W Y O R K ________________________________________________________________________ 2190 2015-2016 Regular Sessions I N A S S E M B L Y January 15, 2015 ___________ Introduced by M. of A. O'DONNELL, AUBRY -- Multi-Sponsored by -- M. of A. PERRY -- read once and referred to the Committee on Correction AN ACT to amend the correction law, in relation to risk assessment instruments for sex offenders THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: 1 Section 1. Subdivision 3 of section 168-d of the correction law, as 2 amended by chapter 11 of the laws of 2002, is amended to read as 3 follows: 4 3. For sex offenders released on probation or discharged upon payment 5 of a fine, conditional discharge or unconditional discharge, it shall be 6 the duty of the court applying the guidelines AND RISK ASSESSMENT 7 INSTRUMENT established in subdivision five of section one hundred 8 sixty-eight-l of this article to determine the level of notification 9 pursuant to subdivision six of section one hundred sixty-eight-l of this 10 article and whether such sex offender shall be designated a sexual pred- 11 ator, sexually violent offender, or predicate sex offender as defined in 12 subdivision seven of section one hundred sixty-eight-a of this article. 13 At least fifteen days prior to the determination proceeding, the 14 district attorney shall provide to the court and the sex offender a 15 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 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD04709-01-5 A. 2190 2 1 not voluntarily provided to the requesting party. In making the determi- 2 nations, the court shall review any victim's statement and any relevant 3 materials and evidence submitted by the sex offender and the district 4 attorney and the court may consider reliable hearsay evidence submitted 5 by either party provided that it is relevant to the determinations. 6 Facts previously proven at trial or elicited at the time of entry of a 7 plea of guilty shall be deemed established by clear and convincing 8 evidence and shall not be relitigated. The court shall render an order 9 setting forth its determinations and the findings of fact and conclu- 10 sions of law on which the determinations are based. A copy of the order 11 shall be submitted by the court to the division. Upon application of 12 either party, the court shall seal any portion of the court file or 13 record which contains material that is confidential under any state or 14 federal statute. Either party may appeal as of right from the order 15 pursuant to the provisions of articles fifty-five, fifty-six and fifty- 16 seven of the civil practice law and rules. Where counsel has been 17 assigned to represent the sex offender upon the ground that the sex 18 offender is financially unable to retain counsel, that assignment shall 19 be continued throughout the pendency of the appeal, and the person may 20 appeal as a poor person pursuant to article eighteen-B of the county 21 law. 22 S 2. Subdivision 2 of section 168-k of the correction law, as amended 23 by chapter 684 of the laws of 2005, is amended to read as follows: 24 2. The division shall advise the board that the sex offender has 25 established residence in this state. The board shall determine whether 26 the sex offender is required to register with the division. If it is 27 determined that the sex offender is required to register, the division 28 shall notify the sex offender of his or her duty to register under this 29 article and shall require the sex offender to sign a form as may be 30 required by the division acknowledging that the duty to register and the 31 procedure for registration has been explained to the sex offender. The 32 division shall obtain on such form the address where the sex offender 33 expects to reside within the state and the sex offender shall retain one 34 copy of the form and send two copies to the division which shall provide 35 the information to the law enforcement agency having jurisdiction where 36 the sex offender expects to reside within this state. No later than 37 thirty days prior to the board making a recommendation, the sex offender 38 shall be notified that his or her case is under review and that he or 39 she is permitted to submit to the board any information relevant to the 40 review. After reviewing any information obtained, and applying the 41 guidelines AND RISK ASSESSMENT INSTRUMENT established in subdivision 42 five of section one hundred sixty-eight-l of this article, the board 43 shall within sixty calendar days make a recommendation regarding the 44 level of notification pursuant to subdivision six of section one hundred 45 sixty-eight-l of this article and whether such sex offender shall be 46 designated a sexual predator, sexually violent offender, or predicate 47 sex offender as defined in subdivision seven of section one hundred 48 sixty-eight-a of this article. This recommendation shall be confiden- 49 tial and shall not be available for public inspection. It shall be 50 submitted by the board to the county court or supreme court and to the 51 district attorney in the county of residence of the sex offender and to 52 the sex offender. It shall be the duty of the county court or supreme 53 court in the county of residence of the sex offender, applying the 54 guidelines AND RISK ASSESSMENT INSTRUMENT established in subdivision 55 five of section one hundred sixty-eight-l of this article, to determine 56 the level of notification pursuant to subdivision six of section one A. 2190 3 1 hundred sixty-eight-l of this article and whether such sex offender 2 shall be designated a sexual predator, sexually violent offender, or 3 predicate sex offender as defined in subdivision seven of section one 4 hundred sixty-eight-a of this article. At least thirty days prior to the 5 determination proceeding, such court shall notify the district attorney 6 and the sex offender, in writing, of the date of the determination 7 proceeding and the court shall also provide the district attorney and 8 sex offender with a copy of the recommendation received from the board 9 and any statement of the reasons for the recommendation received from 10 the board. This notice shall include the following statement or a 11 substantially similar statement: "This proceeding is being held to 12 determine whether you will be classified as a level 3 offender (risk of 13 repeat offense is high), a level 2 offender (risk of repeat offense is 14 moderate), or a level 1 offender (risk of repeat offense is low), or 15 whether you will be designated as a sexual predator, a sexually violent 16 offender or a predicate sex offender, which will determine how long you 17 must register as a sex offender and how much information can be provided 18 to the public concerning your registration. If you fail to appear at 19 this proceeding, without sufficient excuse, it shall be held in your 20 absence. Failure to appear may result in a longer period of registration 21 or a higher level of community notification because you are not present 22 to offer evidence or contest evidence offered by the district attorney." 23 The court shall also advise the sex offender that he or she has a right 24 to a hearing prior to the court's determination, that he or she has the 25 right to be represented by counsel at the hearing and that counsel will 26 be appointed if he or she is financially unable to retain counsel. A 27 returnable form shall be enclosed in the court's notice to the sex 28 offender on which the sex offender may apply for assignment of counsel. 29 If the sex offender applies for assignment of counsel and the court 30 finds that the offender is financially unable to retain counsel, the 31 court shall assign counsel to represent the sex offender pursuant to 32 article eighteen-B of the county law. If the district attorney seeks a 33 determination that differs from the recommendation submitted by the 34 board, at least ten days prior to the determination proceeding the 35 district attorney shall provide to the court and the sex offender a 36 statement setting forth the determinations sought by the district attor- 37 ney together with the reasons for seeking such determinations. The court 38 shall allow the sex offender to appear and be heard. The state shall 39 appear by the district attorney, or his or her designee, who shall bear 40 the burden of proving the facts supporting the determinations sought by 41 clear and convincing evidence. It shall be the duty of the court apply- 42 ing the guidelines AND RISK ASSESSMENT INSTRUMENT established in subdi- 43 vision five of section one hundred sixty-eight-l of this article to 44 determine the level of notification pursuant to subdivision six of 45 section one hundred sixty-eight-l of this article and whether such sex 46 offender shall be designated a sexual predator, sexually violent offen- 47 der, or predicate sex offender as defined in subdivision seven of 48 section one hundred sixty-eight-a of this article. Where there is a 49 dispute between the parties concerning the determinations, the court 50 shall adjourn the hearing as necessary to permit the sex offender or the 51 district attorney to obtain materials relevant to the determinations 52 from the state board of examiners of sex offenders or any state or local 53 facility, hospital, institution, office, agency, department or division. 54 Such materials may be obtained by subpoena if not voluntarily provided 55 to the requesting party. In making the determinations the court shall 56 review any victim's statement and any relevant materials and evidence A. 2190 4 1 submitted by the sex offender and the district attorney and the recom- 2 mendation and any material submitted by the board, and may consider 3 reliable hearsay evidence submitted by either party, provided that it is 4 relevant to the determinations. If available, facts proven at trial or 5 elicited at the time of a plea of guilty shall be deemed established by 6 clear and convincing evidence and shall not be relitigated. The court 7 shall render an order setting forth its determinations and the findings 8 of fact and conclusions of law on which the determinations are based. A 9 copy of the order shall be submitted by the court to the division. Upon 10 application of either party, the court shall seal any portion of the 11 court file or record which contains material that is confidential under 12 any state or federal statute. Either party may appeal as of right from 13 the order pursuant to the provisions of articles fifty-five, fifty-six 14 and fifty-seven of the civil practice law and rules. Where counsel has 15 been assigned to represent the sex offender upon the ground that the sex 16 offender is financially unable to retain counsel, that assignment shall 17 be continued throughout the pendency of the appeal, and the person may 18 appeal as a poor person pursuant to article eighteen-B of the county 19 law. 20 S 3. Subdivision 5 and the opening paragraph of subdivision 6 of 21 section 168-l of the correction law, subdivision 5 as added by chapter 22 192 of the laws of 1995, subparagraph (i) of paragraph (a) of subdivi- 23 sion 5 and the opening paragraph of subdivision 6 as amended by chapter 24 11 of the laws of 2002, are amended and a new subdivision 5-a is added 25 to read as follows: 26 5. The board shall develop guidelines and procedures AND USE A VALI- 27 DATED RISK ASSESSMENT INSTRUMENT to assess the risk of a repeat offense 28 by such sex offender and the threat posed to the public safety. SUCH 29 RISK ASSESSMENT INSTRUMENT SHALL BE PERIODICALLY SUBJECTED TO EMPIRICAL 30 RE-VALIDATION. Such guidelines shall [be based upon,] INCORPORATE 31 FACTORS FOUND TO BE PREDICTIVE OF RISK OF RE-OFFENSE, INCLUDING but not 32 limited to, the following: 33 (a) criminal history factors indicative of high risk of repeat 34 offense, including: 35 (i) whether the sex offender has a mental abnormality or personality 36 disorder that makes him or her likely to engage in predatory sexually 37 violent offenses; 38 (ii) whether the sex offender's conduct was found to be characterized 39 by repetitive and compulsive behavior, associated with drugs or alcohol; 40 (iii) whether the sex offender served the maximum term; 41 (iv) whether the sex offender committed the felony sex offense against 42 a child; 43 (v) the age of the sex offender at the time of the commission of the 44 first sex offense; 45 (b) other criminal history factors to be considered in determining 46 risk, including: 47 (i) the relationship between such sex offender and the victim; 48 (ii) whether the offense involved the use of a weapon, violence or 49 infliction of serious bodily injury; 50 (iii) the number, date and nature of prior offenses; 51 (c) conditions of release that minimize risk [or] OF re-offense, 52 including but not limited to whether the sex offender is under super- 53 vision; receiving counseling, therapy or treatment; or residing in a 54 home situation that provides guidance and supervision; 55 (d) physical conditions that minimize risk of re-offense, including 56 but not limited to advanced age or debilitating illness; A. 2190 5 1 (e) whether psychological or psychiatric profiles indicate a risk of 2 recidivism; 3 (f) the sex offender's response to treatment; 4 (g) recent behavior, including behavior while confined; 5 (h) recent threats or gestures against persons or expressions of 6 intent to commit additional offenses; and 7 (i) review of any victim impact statement. 8 5-A. (A) THE BOARD IN CONSULTATION WITH THE DEPARTMENT AND THE DIVI- 9 SION OF CRIMINAL JUSTICE SERVICES SHALL MAINTAIN A STATEWIDE DATABASE OF 10 SEX OFFENDER RECIDIVISM STATISTICS. 11 (B) THE BOARD IN CONSULTATION WITH THE DEPARTMENT AND THE DIVISION OF 12 CRIMINAL JUSTICE SERVICES SHALL CONDUCT A PERIODIC RETROACTIVE STUDY AT 13 LEAST EVERY FIVE YEARS TO DETERMINE THE PREDICTIVE VALUE OF THE RISK 14 ASSESSMENT INSTRUMENT USED TO ASSIGN RISK OF REPEAT OFFENSE LEVELS TO 15 SEX OFFENDERS PURSUANT TO SUBDIVISION SIX OF THIS SECTION. AFTER EACH 16 SUCH STUDY THE BOARD SHALL PREPARE A DETAILED REPORT TO THE GOVERNOR AND 17 LEGISLATURE DETERMINING THE PREDICTIVE VALUE OF THE RISK ASSESSMENT 18 INSTRUMENT AND THE PREDICTIVE VALUE OF EACH FACTOR CONSIDERED IN THE 19 OVERALL RISK ASSESSMENT WHEN APPLIED TO THE STATEWIDE DATABASE MAIN- 20 TAINED PURSUANT TO PARAGRAPH (A) OF THIS SUBDIVISION. THE REPORT SHALL 21 INCLUDE RECOMMENDED CHANGES TO THE GUIDELINES AND RISK ASSESSMENT 22 INSTRUMENT TO ENHANCE THEIR PREDICTIVE CAPABILITIES FOR THE PURPOSE OF 23 PERIODIC REVALIDATION OF SUCH GUIDELINES AND RISK ASSESSMENT INSTRUMENT 24 PURSUANT TO SUBDIVISION FIVE OF THIS SECTION. THE FIRST SUCH STUDY SHALL 25 BE COMPLETED WITHIN TWO YEARS OF THE EFFECTIVE DATE OF THIS SUBDIVISION. 26 Applying these guidelines AND THE VALIDATED RISK ASSESSMENT 27 INSTRUMENT, the board shall within sixty calendar days prior to the 28 discharge, parole, release to post-release supervision or release of a 29 sex offender make a recommendation which shall be confidential and shall 30 not be available for public inspection, to the sentencing court as to 31 whether such sex offender warrants the designation of sexual predator, 32 sexually violent offender, or predicate sex offender as defined in 33 subdivision seven of section one hundred sixty-eight-a of this article. 34 In addition, the guidelines AND SUCH INSTRUMENT shall be applied by the 35 board to make a recommendation to the sentencing court which shall be 36 confidential and shall not be available for public inspection, providing 37 for one of the following three levels of notification depending upon the 38 degree of the risk of re-offense by the sex offender. 39 S 4. Subdivisions 1 and 2 of section 168-n of the correction law, 40 subdivision 1 as amended by chapter 11 of the laws of 2002 and subdivi- 41 sion 2 as amended by chapter 453 of the laws of 1999, are amended to 42 read as follows: 43 1. A determination that an offender is a sexual predator, sexually 44 violent offender, or predicate sex offender as defined in subdivision 45 seven of section one hundred sixty-eight-a of this article shall be made 46 prior to the discharge, parole, release to post-release supervision or 47 release of such offender by the sentencing court applying the guidelines 48 AND RISK ASSESSMENT INSTRUMENT established in subdivision five of 49 section one hundred sixty-eight-l of this article after receiving a 50 recommendation from the board pursuant to section one hundred sixty- 51 eight-l of this article. 52 2. In addition, applying the guidelines AND RISK ASSESSMENT INSTRUMENT 53 established in subdivision five of section one hundred sixty-eight-l of 54 this article, the sentencing court shall also make a determination with 55 respect to the level of notification, after receiving a recommendation 56 from the board pursuant to section one hundred sixty-eight-l of this A. 2190 6 1 article. Both determinations of the sentencing court shall be made thir- 2 ty calendar days prior to discharge, parole or release. 3 S 5. This act shall take effect on the one hundred eightieth day after 4 it shall have become a law.