Bill Text: NY A03655 | 2011-2012 | General Assembly | Introduced
Bill Title: Allows a district attorney to file a petition to seek the imposition of residency restrictions for certain sex offenders; allows a sex offender subject to a residency restriction to petition the court which imposed such restriction for an order terminating or modifying such residency restriction.
Spectrum: Moderate Partisan Bill (Democrat 9-1)
Status: (Introduced - Dead) 2012-01-04 - referred to correction [A03655 Detail]
Download: New_York-2011-A03655-Introduced.html
S T A T E O F N E W Y O R K ________________________________________________________________________ 3655 2011-2012 Regular Sessions I N A S S E M B L Y January 26, 2011 ___________ Introduced by M. of A. AUBRY, LENTOL, SPANO, REILLY, RAMOS, TITONE, CUSICK, DESTITO, GABRYSZAK -- Multi-Sponsored by -- M. of A. LUPARDO -- read once and referred to the Committee on Correction AN ACT to amend the correction law, the penal law, the executive law and the criminal procedure law, in relation to establishing residency restrictions for sex offenders THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: 1 Section 1. Paragraph (f) of subdivision 1 of section 168-b of the 2 correction law, as relettered by chapter 10 of the laws of 2003, is 3 relettered paragraph (g) and a new paragraph (f) is added to read as 4 follows: 5 (F) IF THE SEX OFFENDER HAS BEEN GIVEN A LEVEL 2 OR 3 DESIGNATION AND 6 STANDS CONVICTED OF A FELONY WHICH REQUIRES REGISTRATION PURSUANT TO 7 THIS ARTICLE, WHETHER SUCH OFFENDER IS SUBJECT TO A RESIDENCY 8 RESTRICTION PURSUANT TO SECTION ONE HUNDRED SIXTY-EIGHT-W OF THIS ARTI- 9 CLE. 10 S 2. Section 168-b of the correction law is amended by adding a new 11 subdivision 13 to read as follows: 12 13. THE DIVISION, UPON INITIAL REGISTRATION AND THEREAFTER IN ANNUAL 13 CORRESPONDENCE AS REQUIRED BY SUBDIVISION FOUR OF THIS SECTION, SHALL 14 ADVISE EACH SEX OFFENDER WHO IS SUBJECT TO A RESIDENCY RESTRICTION 15 PURSUANT TO SECTION ONE HUNDRED SIXTY-EIGHT-W OF THIS ARTICLE, CONCERN- 16 ING THE TERM'S SPECIFIC DURATION AND THE ACCURATE TERMINATION DATE OF 17 SUCH RESTRICTION. 18 S 3. Subdivisions 2 and 3 of section 168-d of the correction law, 19 subdivision 2 as amended by chapter 684 of the laws of 2005 and subdivi- 20 sion 3 as amended by chapter 11 of the laws of 2002, are amended to read 21 as follows: 22 2. Any sex offender, who is released on probation or discharged upon 23 payment of a fine, conditional discharge or unconditional discharge EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD04649-01-1 A. 3655 2 1 shall, prior to such release or discharge, be informed of his or her 2 duty to register under this article by the court in which he or she was 3 convicted. At the time sentence is imposed, such sex offender shall 4 register with the division on a form prepared by the division. The court 5 shall require the sex offender to read and sign such form and to 6 complete the registration portion of such form. The court shall on such 7 form obtain the address where the sex offender expects to reside upon 8 his or her release, and the name and address of any institution of high- 9 er education he or she expects to be employed by, enrolled in, attending 10 or employed, whether for compensation or not, and whether he or she 11 expects to reside in a facility owned or operated by such an institu- 12 tion, and shall report such information to the division. The court shall 13 give one copy of the form to the sex offender and shall send two copies 14 to the division which shall forward the information to the law enforce- 15 ment agencies having jurisdiction. The court shall also notify the 16 district attorney and the sex offender of the date of the determination 17 proceeding to be held pursuant to subdivision three of this section, 18 which shall be held at least forty-five days after such notice is given. 19 This notice shall include the following statement or a substantially 20 similar statement: "This proceeding is being held to determine whether 21 you will be classified as a level 3 offender (risk of repeat offense is 22 high), a level 2 offender (risk of repeat offense is moderate), or a 23 level 1 offender (risk of repeat offense is low), or whether you will be 24 designated as a sexual predator, a sexually violent offender or a predi- 25 cate sex offender, which will determine how long you must register as a 26 sex offender and how much information can be provided to the public 27 concerning your registration. IF YOU ARE CLASSIFIED AS A LEVEL 2 OR 28 LEVEL 3 OFFENDER FOR A FELONY SEX OFFENSE, THE COURT MAY ALSO DETERMINE 29 WHETHER YOU WILL BE SUBJECT TO A RESIDENCY RESTRICTION WHICH MAY 30 RESTRICT WHERE YOU CAN ESTABLISH YOUR PERMANENT RESIDENCE. If you fail 31 to appear at this proceeding, without sufficient excuse, it shall be 32 held in your absence. Failure to appear may result in a longer period of 33 registration or a higher level of community notification because you are 34 not present to offer evidence or contest evidence offered by the 35 district attorney." The court shall also advise the sex offender that 36 he or she has a right to a hearing prior to the court's determination, 37 that he or she has the right to be represented by counsel at the hearing 38 and that counsel will be appointed if he or she is financially unable to 39 retain counsel. If the sex offender applies for assignment of counsel to 40 represent him or her at the hearing and counsel was not previously 41 assigned to represent the sex offender in the underlying criminal 42 action, the court shall determine whether the offender is financially 43 unable to retain counsel. If such a finding is made, the court shall 44 assign counsel to represent the sex offender pursuant to article eigh- 45 teen-B of the county law. Where the court orders a sex offender released 46 on probation, such order must include a provision requiring that he or 47 she comply with the requirements of this article. Where such sex offen- 48 der violates such provision, probation may be immediately revoked in the 49 manner provided by article four hundred ten of the criminal procedure 50 law. 51 3. For sex offenders released on probation or discharged upon payment 52 of a fine, conditional discharge or unconditional discharge, it shall be 53 the duty of the court applying the guidelines established in subdivision 54 five of section one hundred sixty-eight-l of this article to determine 55 the level of notification pursuant to subdivision six of section one 56 hundred sixty-eight-l of this article [and], whether such sex offender A. 3655 3 1 shall be designated a sexual predator, sexually violent offender, or 2 predicate sex offender as defined in subdivision seven of section one 3 hundred sixty-eight-a of this article AND, WHEN DETERMINING THE LEVEL OF 4 NOTIFICATION AND APPLYING THE GUIDELINES ESTABLISHED IN SUBDIVISION 5 FIVE-A OF SECTION ONE HUNDRED SIXTY-EIGHT-L OF THIS ARTICLE, WHETHER A 6 SEX OFFENDER, CLASSIFIED AS A LEVEL 2 OR LEVEL 3 OFFENDER WHO STANDS 7 CONVICTED OF A FELONY WHICH REQUIRES REGISTRATION PURSUANT TO THIS ARTI- 8 CLE, WILL BE SUBJECT TO A RESIDENCY RESTRICTION PURSUANT TO SECTION ONE 9 HUNDRED SIXTY-EIGHT-W OF THIS ARTICLE. At least fifteen days prior to 10 the determination proceeding, the district attorney shall provide to the 11 court and the sex offender a written statement setting forth the deter- 12 minations sought by the district attorney together with the reasons for 13 seeking such determinations. The court shall allow the sex offender to 14 appear and be heard. The state shall appear by the district attorney, or 15 his or her designee, who shall bear the burden of proving the facts 16 supporting the determinations sought by clear and convincing evidence. 17 Where there is a dispute between the parties concerning the determi- 18 nations, the court shall adjourn the hearing as necessary to permit the 19 sex offender or the district attorney to obtain materials relevant to 20 the determinations from any state or local facility, hospital, institu- 21 tion, office, agency, department or division. Such materials may be 22 obtained by subpoena if not voluntarily provided to the requesting 23 party. In making the determinations, the court shall review any victim's 24 statement and any relevant materials and evidence submitted by the sex 25 offender and the district attorney and the court may consider reliable 26 hearsay evidence submitted by either party provided that it is relevant 27 to the determinations. Facts previously proven at trial or elicited at 28 the time of entry of a plea of guilty shall be deemed established by 29 clear and convincing evidence and shall not be relitigated. The court 30 shall render an order setting forth its determinations and the findings 31 of fact and conclusions of law on which the determinations are based. A 32 copy of the order shall be submitted by the court to the division. Upon 33 application of either party, the court shall seal any portion of the 34 court file or record which contains material that is confidential under 35 any state or federal statute. Either party may appeal as of right from 36 the order pursuant to the provisions of articles fifty-five, fifty-six 37 and fifty-seven of the civil practice law and rules. Where counsel has 38 been assigned to represent the sex offender upon the ground that the sex 39 offender is financially unable to retain counsel, that assignment shall 40 be continued throughout the pendency of the appeal, and the person may 41 appeal as a poor person pursuant to article eighteen-B of the county 42 law. 43 S 4. Subdivision 2 of section 168-k of the correction law, as amended 44 by chapter 684 of the laws of 2005, is amended to read as follows: 45 2. The division shall advise the board that the sex offender has 46 established residence in this state. The board shall determine whether 47 the sex offender is required to register with the division. If it is 48 determined that the sex offender is required to register, the division 49 shall notify the sex offender of his or her duty to register under this 50 article and shall require the sex offender to sign a form as may be 51 required by the division acknowledging that the duty to register and the 52 procedure for registration has been explained to the sex offender. The 53 division shall obtain on such form the address where the sex offender 54 expects to reside within the state and the sex offender shall retain one 55 copy of the form and send two copies to the division which shall provide 56 the information to the law enforcement agency having jurisdiction where A. 3655 4 1 the sex offender expects to reside within this state. No later than 2 thirty days prior to the board making a recommendation, the sex offender 3 shall be notified that his or her case is under review and that he or 4 she is permitted to submit to the board any information relevant to the 5 review. After reviewing any information obtained, and applying the 6 guidelines established in subdivision five of section one hundred 7 sixty-eight-l of this article, the board shall within sixty calendar 8 days make a recommendation regarding the level of notification pursuant 9 to subdivision six of section one hundred sixty-eight-l of this article 10 [and], whether such sex offender shall be designated a sexual predator, 11 sexually violent offender, or predicate sex offender as defined in 12 subdivision seven of section one hundred sixty-eight-a of this article 13 AND, WHEN DETERMINING THE LEVEL OF NOTIFICATION AND APPLYING THE GUIDE- 14 LINES ESTABLISHED IN SUBDIVISION FIVE-A OF SECTION ONE HUNDRED 15 SIXTY-EIGHT-L OF THIS ARTICLE, WHETHER A SEX OFFENDER, CLASSIFIED AS A 16 LEVEL 2 OR LEVEL 3 OFFENDER WHO STANDS CONVICTED OF A FELONY WHICH 17 REQUIRES REGISTRATION PURSUANT TO THIS ARTICLE, WILL BE SUBJECT TO A 18 RESIDENCY RESTRICTION PURSUANT TO SECTION ONE HUNDRED SIXTY-EIGHT-W OF 19 THIS ARTICLE. This recommendation shall be confidential and shall not 20 be available for public inspection. It shall be submitted by the board 21 to the county court or supreme court and to the district attorney in the 22 county of residence of the sex offender and to the sex offender. It 23 shall be the duty of the county court or supreme court in the county of 24 residence of the sex offender, applying the guidelines established in 25 subdivision five of section one hundred sixty-eight-l of this article, 26 to determine the level of notification pursuant to subdivision six of 27 section one hundred sixty-eight-l of this article [and], whether such 28 sex offender shall be designated a sexual predator, sexually violent 29 offender, or predicate sex offender as defined in subdivision seven of 30 section one hundred sixty-eight-a of this article AND, WHEN DETERMINING 31 THE LEVEL OF NOTIFICATION AND APPLYING THE GUIDELINES ESTABLISHED IN 32 SUBDIVISION FIVE-A OF SECTION ONE HUNDRED SIXTY-EIGHT-L OF THIS ARTICLE, 33 WHETHER A SEX OFFENDER, CLASSIFIED AS A LEVEL 2 OR LEVEL 3 OFFENDER WHO 34 STANDS CONVICTED OF A FELONY WHICH REQUIRES REGISTRATION PURSUANT TO 35 THIS ARTICLE, WILL BE SUBJECT TO A RESIDENCY RESTRICTION PURSUANT TO 36 SECTION ONE HUNDRED SIXTY-EIGHT-W OF THIS ARTICLE. At least thirty days 37 prior to the determination proceeding, such court shall notify the 38 district attorney and the sex offender, in writing, of the date of the 39 determination proceeding and the court shall also provide the district 40 attorney and sex offender with a copy of the recommendation received 41 from the board and any statement of the reasons for the recommendation 42 received from the board. This notice shall include the following state- 43 ment or a substantially similar statement: "This proceeding is being 44 held to determine whether you will be classified as a level 3 offender 45 (risk of repeat offense is high), a level 2 offender (risk of repeat 46 offense is moderate), or a level 1 offender (risk of repeat offense is 47 low), or whether you will be designated as a sexual predator, a sexually 48 violent offender or a predicate sex offender, which will determine how 49 long you must register as a sex offender and how much information can be 50 provided to the public concerning your registration. IF YOU ARE CLASSI- 51 FIED AS A LEVEL 2 OR LEVEL 3 OFFENDER FOR A FELONY SEX OFFENSE, THE 52 COURT MAY ALSO DETERMINE WHETHER YOU WILL BE SUBJECT TO A RESIDENCY 53 RESTRICTION WHICH MAY RESTRICT WHERE YOU CAN ESTABLISH YOUR PERMANENT 54 RESIDENCE. If you fail to appear at this proceeding, without sufficient 55 excuse, it shall be held in your absence. Failure to appear may result 56 in a longer period of registration or a higher level of community A. 3655 5 1 notification because you are not present to offer evidence or contest 2 evidence offered by the district attorney." The court shall also advise 3 the sex offender that he or she has a right to a hearing prior to the 4 court's determination, that he or she has the right to be represented by 5 counsel at the hearing and that counsel will be appointed if he or she 6 is financially unable to retain counsel. A returnable form shall be 7 enclosed in the court's notice to the sex offender on which the sex 8 offender may apply for assignment of counsel. If the sex offender 9 applies for assignment of counsel and the court finds that the offender 10 is financially unable to retain counsel, the court shall assign counsel 11 to represent the sex offender pursuant to article eighteen-B of the 12 county law. If the district attorney seeks a determination that differs 13 from the recommendation submitted by the board, at least ten days prior 14 to the determination proceeding the district attorney shall provide to 15 the court and the sex offender a statement setting forth the determi- 16 nations sought by the district attorney together with the reasons for 17 seeking such determinations. The court shall allow the sex offender to 18 appear and be heard. The state shall appear by the district attorney, or 19 his or her designee, who shall bear the burden of proving the facts 20 supporting the determinations sought by clear and convincing evidence. 21 It shall be the duty of the court applying the guidelines established in 22 subdivision five of section one hundred sixty-eight-l of this article to 23 determine the level of notification pursuant to subdivision six of 24 section one hundred sixty-eight-l of this article [and], whether such 25 sex offender shall be designated a sexual predator, sexually violent 26 offender, or predicate sex offender as defined in subdivision seven of 27 section one hundred sixty-eight-a of this article AND, WHEN DETERMINING 28 THE LEVEL OF NOTIFICATION AND APPLYING THE GUIDELINES ESTABLISHED BY 29 SUBDIVISION FIVE-A OF SECTION ONE HUNDRED SIXTY-EIGHT-L OF THIS ARTICLE, 30 WHETHER A SEX OFFENDER, CLASSIFIED AS A LEVEL 2 OR LEVEL 3 OFFENDER WHO 31 STANDS CONVICTED OF A FELONY WHICH REQUIRES REGISTRATION PURSUANT TO 32 THIS ARTICLE, WILL BE SUBJECT TO A RESIDENCY RESTRICTION PURSUANT TO 33 SECTION ONE HUNDRED SIXTY-EIGHT-W OF THIS ARTICLE. Where there is a 34 dispute between the parties concerning the determinations, the court 35 shall adjourn the hearing as necessary to permit the sex offender or the 36 district attorney to obtain materials relevant to the determinations 37 from the state board of examiners of sex offenders or any state or local 38 facility, hospital, institution, office, agency, department or division. 39 Such materials may be obtained by subpoena if not voluntarily provided 40 to the requesting party. In making the determinations the court shall 41 review any victim's statement and any relevant materials and evidence 42 submitted by the sex offender and the district attorney and the recom- 43 mendation and any material submitted by the board, and may consider 44 reliable hearsay evidence submitted by either party, provided that it is 45 relevant to the determinations. If available, facts proven at trial or 46 elicited at the time of a plea of guilty shall be deemed established by 47 clear and convincing evidence and shall not be relitigated. The court 48 shall render an order setting forth its determinations and the findings 49 of fact and conclusions of law on which the determinations are based. A 50 copy of the order shall be submitted by the court to the division. Upon 51 application of either party, the court shall seal any portion of the 52 court file or record which contains material that is confidential under 53 any state or federal statute. Either party may appeal as of right from 54 the order pursuant to the provisions of articles fifty-five, fifty-six 55 and fifty-seven of the civil practice law and rules. Where counsel has 56 been assigned to represent the sex offender upon the ground that the sex A. 3655 6 1 offender is financially unable to retain counsel, that assignment shall 2 be continued throughout the pendency of the appeal, and the person may 3 appeal as a poor person pursuant to article eighteen-B of the county 4 law. 5 S 5. Section 168-l of the correction law is amended by adding a new 6 subdivision 5-a to read as follows: 7 5-A. THE BOARD SHALL DEVELOP GUIDELINES AND PROCEDURES TO ASSESS 8 WHETHER TO RECOMMEND THAT A SEX OFFENDER WHO STANDS CONVICTED OF A FELO- 9 NY SHOULD BE SUBJECT TO A RESIDENCY RESTRICTION AS DESCRIBED IN SECTION 10 ONE HUNDRED SIXTY-EIGHT-W OF THIS ARTICLE. SUCH GUIDELINES SHALL INCLUDE 11 THE FOLLOWING: 12 (A) WHETHER A RESIDENCY RESTRICTION WOULD ADVERSELY IMPACT THE 13 OFFENDER'S SUCCESSFUL REENTRY AND REINTEGRATION INTO SOCIETY; 14 (B) WHETHER A RESIDENCY RESTRICTION IS NECESSARY, BASED ON THE 15 OFFENDER'S CURRENT BEHAVIOR AND PRESENT AND PROSPECTIVE LIVING ARRANGE- 16 MENTS TO PROTECT PUBLIC SAFETY; 17 (C) THE ABILITY OF THE OFFENDER TO OBTAIN PERMANENT AND STABLE HOUSING 18 IN ORDER TO REDUCE THE LIKELIHOOD THAT THE OFFENDER WILL BE TRANSIENT; 19 (D) THE ACCESSIBILITY TO SUPPORTIVE SERVICES, INCLUDING, BUT NOT 20 LIMITED TO, LOCALLY AVAILABLE SEX OFFENDER TREATMENT PROGRAMS THAT HAVE 21 DEMONSTRATED EFFECTIVENESS IN REDUCING SEX OFFENDER RECIDIVISM AND 22 INCREASING PUBLIC SAFETY; 23 (E) THE ABILITY OF THE OFFENDER TO FIND GAINFUL AND STABLE EMPLOYMENT; 24 AND 25 (F) WHETHER THE OFFENSE THAT REQUIRES THE OFFENDER TO REGISTER PURSU- 26 ANT TO THIS ARTICLE WAS COMMITTED AGAINST A MINOR CHILD. 27 S 6. The opening paragraph of subdivision 6 of section 168-1 of the 28 correction law, as amended by chapter 11 of the laws of 2002, is amended 29 to read as follows: 30 Applying [these] THE guidelines ESTABLISHED IN SUBDIVISION FIVE OF 31 THIS SECTION, the board shall within sixty calendar days prior to the 32 discharge, parole, release to post-release supervision or release of a 33 sex offender make a recommendation which shall be confidential and shall 34 not be available for public inspection, to the sentencing court as to 35 whether such sex offender warrants the designation of sexual predator, 36 sexually violent offender, or predicate sex offender as defined in 37 subdivision seven of section one hundred sixty-eight-a of this article. 38 In addition, the guidelines ESTABLISHED IN SUBDIVISION FIVE OF THIS 39 SECTION shall be applied by the board to make a recommendation to the 40 sentencing court which shall be confidential and shall not be available 41 for public inspection, providing for one of the [following] three levels 42 of notification DESCRIBED IN PARAGRAPHS (A), (B), AND (C) OF THIS SUBDI- 43 VISION depending upon the degree of the risk of re-offense by the sex 44 offender. FURTHER, WHEN THE BOARD MAKES A RECOMMENDATION TO THE SENTENC- 45 ING COURT THAT A SEX OFFENDER BE CLASSIFIED AS A LEVEL 2 OR LEVEL 3 46 OFFENDER AND SUCH OFFENDER STANDS CONVICTED OF A FELONY WHICH REQUIRES 47 REGISTRATION PURSUANT TO THIS ARTICLE, THE BOARD SHALL ALSO APPLY THE 48 GUIDELINES ESTABLISHED IN SUBDIVISION FIVE-A OF THIS SECTION AND MAY 49 MAKE A RECOMMENDATION REGARDING WHETHER SUCH OFFENDER SHOULD BE SUBJECT 50 TO A RESIDENCY RESTRICTION AS DESCRIBED IN SECTION ONE HUNDRED 51 SIXTY-EIGHT-W OF THIS ARTICLE. 52 S 7. Subdivision 7 of section 168-l of the correction law, as amended 53 by chapter 11 of the laws of 2002, is amended to read as follows: 54 7. Upon request by the court, pursuant to section one hundred sixty- 55 eight-o of this article, the board shall provide an updated report 56 pertaining to the sex offender petitioning for relief of the duty to A. 3655 7 1 register [or], for a modification of his or her level of notification OR 2 FOR MODIFICATION OR TERMINATION OF A RESIDENCY RESTRICTION IMPOSED BY 3 THE SENTENCING COURT. 4 S 8. Subdivisions 2 and 3 of section 168-n of the correction law, 5 subdivision 2 as amended by chapter 453 of the laws of 1999 and subdivi- 6 sion 3 as amended by chapter 684 of the laws of 2005, are amended to 7 read as follows: 8 2. In addition, applying the guidelines established in subdivision 9 five of section one hundred sixty-eight-l of this article, the sentenc- 10 ing court shall also make a determination with respect to the level of 11 notification, after receiving a recommendation from the board pursuant 12 to section one hundred sixty-eight-l of this article. [Both] FURTHER, 13 WHEN THE COURT CLASSIFIES A SEX OFFENDER AS A LEVEL 2 OR LEVEL 3 OFFEN- 14 DER AND SUCH OFFENDER STANDS CONVICTED OF A FELONY WHICH REQUIRES REGIS- 15 TRATION PURSUANT TO THIS ARTICLE AND THE BOARD HAS RECOMMENDED THAT SUCH 16 OFFENDER BE SUBJECT TO A RESIDENCY RESTRICTION, THE COURT SHALL APPLY 17 THE GUIDELINES ESTABLISHED IN SUBDIVISION FIVE-A OF SECTION ONE HUNDRED 18 SIXTY-EIGHT-L OF THIS ARTICLE AND MAKE A DETERMINATION WITH RESPECT TO 19 WHETHER SUCH OFFENDER SHALL BE SUBJECT TO A RESIDENCY RESTRICTION IN 20 ACCORDANCE WITH SECTION ONE HUNDRED SIXTY-EIGHT-W OF THIS ARTICLE. ALL 21 determinations of the sentencing court PURSUANT TO THIS SECTION shall be 22 made thirty calendar days prior to discharge, parole or release. 23 3. No later than thirty days prior to the board's recommendation, the 24 sex offender shall be notified that his or her case is under review and 25 that he or she is permitted to submit to the board any information rele- 26 vant to the review. Upon receipt of the board's recommendation, the 27 sentencing court shall determine whether the sex offender was previously 28 found to be eligible for assigned counsel in the underlying case. Where 29 such a finding was previously made, the court shall assign counsel to 30 represent the offender, pursuant to article eighteen-B of the county 31 law. At least twenty days prior to the determination proceeding, the 32 sentencing court shall notify the district attorney, the sex offender 33 and the sex offender's counsel, in writing, of the date of the determi- 34 nation proceeding and shall also provide the district attorney, the sex 35 offender and the sex offender's counsel with a copy of the recommenda- 36 tion received from the board and any statement of the reasons for the 37 recommendation received from the board. This notice shall include the 38 following statement or a substantially similar statement: "This 39 proceeding is being held to determine whether you will be classified as 40 a level 3 offender (risk of repeat offense is high), a level 2 offender 41 (risk of repeat offense is moderate), or a level 1 offender (risk of 42 repeat offense is low), or whether you will be designated as a sexual 43 predator, a sexually violent offender or a predicate sex offender, which 44 will determine how long you must register as a sex offender and how much 45 information can be provided to the public concerning your registration. 46 IF YOU ARE CLASSIFIED AS A LEVEL 2 OR LEVEL 3 OFFENDER FOR A FELONY SEX 47 OFFENSE, THE COURT MAY ALSO DETERMINE WHETHER YOU WILL BE SUBJECT TO A 48 RESIDENCY RESTRICTION WHICH MAY RESTRICT WHERE YOU CAN ESTABLISH YOUR 49 PERMANENT RESIDENCE. If you fail to appear at this proceeding, without 50 sufficient excuse, it shall be held in your absence. Failure to appear 51 may result in a longer period of registration or a higher level of 52 community notification because you are not present to offer evidence or 53 contest evidence offered by the district attorney." The written notice 54 to the sex offender shall also advise the offender that he or she has a 55 right to a hearing prior to the court's determination, and that he or 56 she has the right to be represented by counsel at the hearing. If coun- A. 3655 8 1 sel has been assigned to represent the offender at the determination 2 proceeding, the notice shall also provide the name, address and tele- 3 phone number of the assigned counsel. Where counsel has not been 4 assigned, the notice shall advise the sex offender that counsel will be 5 appointed if he or she is financially unable to retain counsel, and a 6 returnable form shall be enclosed in the court's notice to the sex 7 offender on which the sex offender may apply for assignment of counsel. 8 If the sex offender applies for assignment of counsel and the court 9 finds that the offender is financially unable to retain counsel, the 10 court shall assign counsel to represent the sex offender pursuant to 11 article eighteen-B of the county law. If the district attorney seeks a 12 determination that differs from the recommendation submitted by the 13 board, at least ten days prior to the determination proceeding the 14 district attorney shall provide to the court and the sex offender a 15 statement setting forth the determinations sought by the district attor- 16 ney together with the reasons for seeking such determinations. The court 17 shall allow the sex offender to appear and be heard. The state shall 18 appear by the district attorney, or his or her designee, who shall bear 19 the burden of proving the facts supporting the determinations sought by 20 clear and convincing evidence. Where there is a dispute between the 21 parties concerning the determinations, the court shall adjourn the hear- 22 ing as necessary to permit the sex offender or the district attorney to 23 obtain materials relevant to the determinations from the state board of 24 examiners of sex offenders or any state or local facility, hospital, 25 institution, office, agency, department or division. Such materials may 26 be obtained by subpoena if not voluntarily provided to the requesting 27 party. In making the determinations the court shall review any victim's 28 statement and any relevant materials and evidence submitted by the sex 29 offender and the district attorney and the recommendation and any mate- 30 rials submitted by the board, and may consider reliable hearsay evidence 31 submitted by either party, provided that it is relevant to the determi- 32 nations. Facts previously proven at trial or elicited at the time of 33 entry of a plea of guilty shall be deemed established by clear and 34 convincing evidence and shall not be relitigated. The court shall render 35 an order setting forth its determinations and the findings of fact and 36 conclusions of law on which the determinations are based. A copy of the 37 order shall be submitted by the court to the division. Upon application 38 of either party, the court shall seal any portion of the court file or 39 record which contains material that is confidential under any state or 40 federal statute. Either party may appeal as of right from the order 41 pursuant to the provisions of articles fifty-five, fifty-six and fifty- 42 seven of the civil practice law and rules. Where counsel has been 43 assigned to represent the sex offender upon the ground that the sex 44 offender is financially unable to retain counsel, that assignment shall 45 be continued throughout the pendency of the appeal, and the person may 46 appeal as a poor person pursuant to article eighteen-B of the county 47 law. 48 S 9. The section heading of section 168-o of the correction law, as 49 amended by chapter 453 of the laws of 1999, is amended and a new subdi- 50 vision 2-a is added to read as follows: 51 Petition for relief or modification OF LEVEL OF NOTIFICATION AND/OR 52 RESIDENCY RESTRICTION. 53 2-A. ANY SEX OFFENDER SUBJECT TO A RESIDENCY RESTRICTION PURSUANT TO 54 THIS ARTICLE MAY PETITION THE COURT WHICH IMPOSED SUCH RESTRICTION FOR 55 AN ORDER TERMINATING OR MODIFYING SUCH RESIDENCY RESTRICTION. THE PETI- 56 TION SHALL SET FORTH THE REASONS FOR SEEKING SUCH MODIFICATION OR TERMI- A. 3655 9 1 NATION. THE SEX OFFENDER SHALL BEAR THE BURDEN OF PROVING THE FACTS 2 SUPPORTING THE REQUESTED MODIFICATION OR TERMINATION BY CLEAR AND 3 CONVINCING EVIDENCE. SUCH A PETITION SHALL NOT BE CONSIDERED MORE THAN 4 ANNUALLY. THE DISTRICT ATTORNEY AND THE SEX OFFENDER MAY APPEAL AS OF 5 RIGHT FROM AN ORDER ISSUED UNDER THIS SUBDIVISION PURSUANT TO THE 6 PROVISIONS OF ARTICLES FIFTY-FIVE, FIFTY-SIX AND FIFTY-SEVEN OF THE 7 CIVIL PRACTICE LAW AND RULES. WHERE COUNSEL HAS BEEN ASSIGNED TO REPRE- 8 SENT THE SEX OFFENDER UPON THE GROUND THAT THE SEX OFFENDER IS FINAN- 9 CIALLY UNABLE TO RETAIN COUNSEL, THAT ASSIGNMENT SHALL BE CONTINUED 10 THROUGHOUT THE PENDENCY OF THE APPEAL, AND THE PERSON MAY APPEAL AS A 11 POOR PERSON PURSUANT TO ARTICLE EIGHTEEN-B OF THE COUNTY LAW. 12 S 10. Section 168-o of the correction law is amended by adding a new 13 subdivision 3-a to read as follows: 14 3-A. PRIOR TO THE EXPIRATION OF A RESIDENCY RESTRICTION ORDERED PURSU- 15 ANT TO SECTION ONE HUNDRED SIXTY-EIGHT-W OF THIS ARTICLE, THE DISTRICT 16 ATTORNEY MAY FILE A PETITION WITH THE SENTENCING COURT OR WITH THE COURT 17 WHICH ORDERED THE RESIDENCY RESTRICTION TO EXTEND THE DURATION OF SUCH 18 RESIDENCY RESTRICTION IN ACCORDANCE WITH SUBDIVISION FOUR OF SECTION ONE 19 HUNDRED SIXTY-EIGHT-W OF THIS ARTICLE. THE PETITION SHALL SET FORTH THE 20 REASONS FOR SEEKING TO EXTEND THE DURATION OF SUCH RESIDENCY 21 RESTRICTION. THE DISTRICT ATTORNEY SHALL BEAR THE BURDEN OF PROVING NEW 22 FACTS AND CIRCUMSTANCES THAT WARRANT THE REQUESTED EXTENSION, BY CLEAR 23 AND CONVINCING EVIDENCE. IN THE EVENT THAT THE DISTRICT ATTORNEY'S PETI- 24 TION IS GRANTED, THE SEX OFFENDER MAY APPEAL AS OF RIGHT FROM THE ORDER, 25 PURSUANT TO THE PROVISIONS OF ARTICLES FIFTY-FIVE, FIFTY-SIX AND FIFTY- 26 SEVEN OF THE CIVIL PRACTICE LAW AND RULES. WHERE COUNSEL HAS BEEN 27 ASSIGNED TO REPRESENT THE OFFENDER UPON THE GROUND THAT HE OR SHE IS 28 FINANCIALLY UNABLE TO RETAIN COUNSEL, THAT ASSIGNMENT SHALL BE CONTINUED 29 THROUGHOUT THE PENDENCY OF THE APPEAL, AND THE PERSON MAY PROCEED AS A 30 POOR PERSON, PURSUANT TO ARTICLE EIGHTEEN-B OF THE COUNTY LAW. 31 S 11. Subdivision 4 of section 168-o of the correction law, as added 32 by chapter 453 of the laws of 1999, is amended to read as follows: 33 4. Upon receipt of a petition submitted pursuant to subdivision one, 34 two [or], TWO-A, three, OR THREE-A of this section, the court shall 35 forward a copy of the petition to the board and request an updated 36 recommendation pertaining to the sex offender and shall provide a copy 37 of the petition to the other party. The court shall also advise the sex 38 offender that he or she has the right to be represented by counsel at 39 the hearing and counsel will be appointed if he or she is financially 40 unable to retain counsel. A returnable form shall be enclosed in the 41 court's notice to the sex offender on which the sex offender may apply 42 for assignment of counsel. If the sex offender applies for assignment 43 of counsel and the court finds that the offender is financially unable 44 to retain counsel, the court shall assign counsel to represent the 45 offender, pursuant to article eighteen-B of the county law. Where the 46 petition was filed by a district attorney, at least thirty days prior to 47 making an updated recommendation the board shall notify the sex offender 48 and his or her counsel that the offender's case is under review and he 49 or she is permitted to submit to the board any information relevant to 50 the review. The board's updated recommendation on the sex offender 51 shall be confidential and shall not be available for public inspection. 52 After receiving an updated recommendation from the board concerning a 53 sex offender, the court shall, at least thirty days prior to ruling upon 54 the petition, provide a copy of the updated recommendation to the sex 55 offender, the sex offender's counsel and the district attorney and noti- 56 fy them, in writing, of the date set by the court for a hearing on the A. 3655 10 1 petition. After reviewing the recommendation received from the board and 2 any relevant materials and evidence submitted by the sex offender and 3 the district attorney, the court may grant or deny the petition. The 4 court may also consult with the victim prior to making a determination 5 on the petition. The court shall render an order setting forth its 6 determination, and the findings of fact and conclusions of law on which 7 the determination is based. If the petition is granted, it shall be the 8 obligation of the court to submit a copy of its order to the division. 9 Upon application of either party, the court shall seal any portion of 10 the court file or record which contains material that is confidential 11 under any state or federal statute. 12 S 12. Section 168-t of the correction law, as amended by chapter 373 13 of the laws of 2007, is amended to read as follows: 14 S 168-t. Penalty. Any sex offender required to register or to verify 15 pursuant to the provisions of this article who fails to register or 16 verify in the manner and within the time periods provided for in this 17 article shall be guilty of a class E felony upon conviction for the 18 first offense, and upon conviction for a second or subsequent offense 19 shall be guilty of a class D felony. Any sex offender who violates the 20 provisions of section one hundred sixty-eight-v of this article OR KNOW- 21 INGLY VIOLATES A RESIDENCY RESTRICTION IMPOSED PURSUANT TO SECTION ONE 22 HUNDRED SIXTY-EIGHT-W OF THIS ARTICLE shall be guilty of a class A 23 misdemeanor upon conviction for the first offense, and upon conviction 24 for a second or subsequent offense shall be guilty of a class D felony. 25 Any such failure to register or verify may also be the basis for revoca- 26 tion of parole pursuant to section two hundred fifty-nine-i of the exec- 27 utive law or the basis for revocation of probation pursuant to article 28 four hundred ten of the criminal procedure law. 29 S 13. Section 168-w of the correction law, as relettered by chapter 30 604 of the laws of 2005, is relettered section 168-x and a new section 31 168-w is added to read as follows: 32 S 168-W. RESIDENCY RESTRICTION FOR CERTAIN SEX OFFENDERS. 1. PURSUANT 33 TO SUBDIVISION THREE OF SECTION ONE HUNDRED SIXTY-EIGHT-D, SUBDIVISION 34 TWO OF SECTION ONE HUNDRED SIXTY-EIGHT-K AND SUBDIVISION TWO OF SECTION 35 ONE HUNDRED SIXTY-EIGHT-N OF THIS ARTICLE, WHEN THE COURT WHICH MAKES 36 THE DETERMINATION REGARDING THE LEVEL OF NOTIFICATION OF A SEX OFFENDER 37 CLASSIFIES SUCH OFFENDER AS A LEVEL 2 OR LEVEL 3 OFFENDER AND SUCH 38 OFFENDER WAS CONVICTED OF A FELONY WHICH REQUIRES REGISTRATION PURSUANT 39 TO THIS ARTICLE AND, WHERE APPLICABLE, THE BOARD HAS RECOMMENDED THAT 40 SUCH OFFENDER BE SUBJECT TO A RESIDENCY RESTRICTION, THE COURT MAY ORDER 41 THAT SUCH OFFENDER COMPLY WITH A RESIDENCY RESTRICTION ACCORDING TO THIS 42 SECTION. SUCH RESIDENCY RESTRICTION MAY BE IMPOSED ONLY AFTER THE COURT 43 HAS APPLIED THE GUIDELINES ESTABLISHED IN SUBDIVISION FIVE-A OF SECTION 44 ONE HUNDRED SIXTY-EIGHT-L OF THIS ARTICLE. 45 2. WHEN THE COURT DETERMINES THAT A RESIDENCY RESTRICTION IS NECESSARY 46 PURSUANT TO THE PROVISIONS OF THIS ARTICLE, THE COURT MAY ORDER THAT THE 47 SEX OFFENDER BE PROHIBITED FROM KNOWINGLY ESTABLISHING HIS OR HER PERMA- 48 NENT RESIDENCE WITHIN UP TO ONE THOUSAND FEET OF ANY SCHOOL GROUNDS, AS 49 THE TERM IS DEFINED IN PARAGRAPH (A) OF SUBDIVISION FOURTEEN OF SECTION 50 220.00 OF THE PENAL LAW. FOR THE PURPOSES OF THIS SUBDIVISION, THE TERM 51 PERMANENT RESIDENCE SHALL MEAN THE PLACE WHERE THE OFFENDER MAINTAINS A 52 FIXED, PERMANENT AND PRINCIPAL HOME AND TO WHICH HE OR SHE, WHENEVER 53 TEMPORARILY AWAY, INTENDS TO RETURN. PERMANENT RESIDENCE SHALL NOT 54 INCLUDE TEMPORARY OR TRANSITIONAL HOUSING SUCH AS A SHELTER, RESIDENTIAL 55 TREATMENT PROGRAM, OR OTHER SIMILAR TEMPORARY OR TRANSIENT HOUSING. A. 3655 11 1 3. THE COURT SHALL DETERMINE THE DURATION OF THE RESIDENCY RESTRICTION 2 IMPOSED PURSUANT TO THIS SECTION PROVIDED, HOWEVER, THAT SUCH 3 RESTRICTION SHALL NOT APPLY FOR MORE THAN TEN YEARS AFTER THE LATER OF 4 THE OFFENDER'S RELEASE FROM JAIL OR PRISON OR THE PERIOD OR TERM OF 5 PROBATION, PAROLE, CONDITIONAL RELEASE OR POST-RELEASE SUPERVISION FOR 6 THE OFFENSE WHICH REQUIRES THE OFFENDER TO REGISTER AS A SEX OFFENDER 7 PURSUANT TO THIS ARTICLE. IN CALCULATING THE DURATION OF THE RESIDENCY 8 RESTRICTION, ANY PERIOD OF TIME DURING WHICH THE OFFENDER IS INCARCERAT- 9 ED FOR ANY REASON AFTER SUCH RESIDENCY RESTRICTION IS ORDERED SHALL BE 10 EXCLUDED AND THE DURATION OF THE RESTRICTION SHALL BE EXTENDED BY A 11 PERIOD OR PERIODS EQUAL TO THE TIME OF SUCH INCARCERATION. 12 4. WHERE THE COURT HAS GRANTED A PETITION TO EXTEND THE DURATION OF A 13 RESIDENCY RESTRICTION PURSUANT TO SUBDIVISIONS THREE-A AND FOUR OF 14 SECTION ONE HUNDRED SIXTY-EIGHT-O OF THIS ARTICLE, SUCH EXTENSION MAY BE 15 FOR A PERIOD OF UP TO FIVE YEARS. 16 S 14. Paragraph (a) of subdivision 4-a of section 65.10 of the penal 17 law, as amended by chapter 67 of the laws of 2008, is amended to read as 18 follows: 19 (a) When imposing a sentence of probation or conditional discharge 20 upon a person convicted of an offense defined in article one hundred 21 thirty, two hundred thirty-five or two hundred sixty-three of this chap- 22 ter, or section 255.25, 255.26 or 255.27 of this chapter, and the victim 23 of such offense was under the age of eighteen at the time of such 24 offense or such person has been designated a level three sex offender 25 pursuant to subdivision six of section [168-l] ONE HUNDRED SIXTY-EIGHT-L 26 of the correction law, the court shall require, as a mandatory condition 27 of such sentence, that such sentenced offender shall refrain from know- 28 ingly entering into or upon any school grounds, as that term is defined 29 in PARAGRAPH (A) OF subdivision fourteen of section 220.00 of this chap- 30 ter, or any other facility or institution primarily used for the care or 31 treatment of persons under the age of eighteen while one or more of such 32 persons under the age of eighteen are present, provided however, that 33 when such sentenced offender is a registered student or participant or 34 an employee of such facility or institution or entity contracting there- 35 with or has a family member enrolled in such facility or institution, 36 such sentenced offender may, with the written authorization of his or 37 her probation officer or the court and the superintendent or chief 38 administrator of such facility, institution or grounds, enter such 39 facility, institution or upon such grounds for the limited purposes 40 authorized by the probation officer or the court and superintendent or 41 chief officer. Nothing in this subdivision shall be construed as 42 restricting any lawful condition of supervision that may be imposed on 43 such sentenced offender. 44 S 15. Subdivision 14 of section 259-c of the executive law, as amended 45 by chapter 320 of the laws of 2006, is amended to read as follows: 46 14. notwithstanding any other provision of law to the contrary, where 47 a person serving a sentence for an offense defined in article one 48 hundred thirty, one hundred thirty-five or two hundred sixty-three of 49 the penal law or section 255.25, 255.26 or 255.27 of the penal law and 50 the victim of such offense was under the age of eighteen at the time of 51 such offense or such person has been designated a level three sex offen- 52 der pursuant to subdivision six of section one hundred sixty-eight-l of 53 the correction law, is released on parole or conditionally released 54 pursuant to subdivision one or two of this section, the board shall 55 require, as a mandatory condition of such release, that such sentenced 56 offender shall refrain from knowingly entering into or upon any school A. 3655 12 1 grounds, as that term is defined in PARAGRAPH (A) OF subdivision four- 2 teen of section 220.00 of the penal law, or any other facility or insti- 3 tution primarily used for the care or treatment of persons under the age 4 of eighteen while one or more of such persons under the age of eighteen 5 are present, provided however, that when such sentenced offender is a 6 registered student or participant or an employee of such facility or 7 institution or entity contracting therewith or has a family member 8 enrolled in such facility or institution, such sentenced offender may, 9 with the written authorization of his or her parole officer and the 10 superintendent or chief administrator of such facility, institution or 11 grounds, enter such facility, institution or upon such grounds for the 12 limited purposes authorized by the parole officer and superintendent or 13 chief officer. Nothing in this subdivision shall be construed as 14 restricting any lawful condition of supervision that may be imposed on 15 such sentenced offender. 16 S 16. The opening paragraph of subdivision 4 of section 530.13 of the 17 criminal procedure law, as amended by chapter 476 of the laws of 2009, 18 is amended to read as follows: 19 Upon conviction of any offense, where the court has not issued an 20 order of protection pursuant to section 530.12 of this article, the 21 court may, in addition to any other disposition, including a conditional 22 discharge or youthful offender adjudication, enter an order of 23 protection. Where a temporary order of protection was issued, the court 24 shall state on the record the reasons for issuing or not issuing an 25 order of protection. The duration of such an order shall be fixed by the 26 court and; (A) in the case of a felony conviction, shall not exceed the 27 greater of: (i) eight years from the date of such conviction, or (ii) 28 eight years from the date of the expiration of the maximum term of an 29 indeterminate or the term of a determinate sentence of imprisonment 30 actually imposed; or (B) in the case of a conviction for a class A 31 misdemeanor, shall not exceed the greater of: (i) five years from the 32 date of such conviction, or (ii) five years from the date of the expira- 33 tion of the maximum term of a definite or intermittent term actually 34 imposed; or (C) in the case of a conviction for any other offense, shall 35 not exceed the greater of: (i) two years from the date of conviction, or 36 (ii) two years from the date of the expiration of the maximum term of a 37 definite or intermittent term actually imposed, PROVIDED, HOWEVER, THAT 38 IN THE CASE OF A CONVICTION FOR AN OFFENSE FOR WHICH REGISTRATION AS A 39 SEX OFFENDER IS REQUIRED PURSUANT TO SUBDIVISION TWO OR THREE OF SECTION 40 ONE HUNDRED SIXTY-EIGHT-A OF THE CORRECTION LAW, AND THE VICTIM OF SUCH 41 OFFENSE WAS UNDER THE AGE OF EIGHTEEN AT THE TIME OF SUCH OFFENSE, THE 42 DURATION OF AN ORDER OF PROTECTION ISSUED PURSUANT TO THIS SUBDIVISION 43 MAY BE, BUT SHALL NOT EXCEED, THE GREATER OF THE APPLICABLE DURATION 44 PROVIDED FOR IN THE FOREGOING PROVISIONS OF THIS SUBDIVISION OR UNTIL 45 THE VICTIM OF SUCH OFFENSE ATTAINS THE AGE OF EIGHTEEN. For purposes of 46 determining the duration of an order of protection entered pursuant to 47 this subdivision, a conviction shall be deemed to include a conviction 48 that has been replaced by a youthful offender adjudication. In addition 49 to any other conditions such an order may require that the defendant: 50 S 17. The opening paragraph of subdivision 4 of section 530.13 of the 51 criminal procedure law, as amended by chapter 384 of the laws of 2001, 52 is amended to read as follows: 53 Upon conviction of any offense, where the court has not issued an 54 order of protection pursuant to section 530.12 of this article, the 55 court may, in addition to any other disposition, including a conditional 56 discharge or youthful offender adjudication, enter an order of A. 3655 13 1 protection. Where a temporary order of protection was issued, the court 2 shall state on the record the reasons for issuing or not issuing an 3 order of protection. The duration of such an order shall be fixed by the 4 court and, in the case of a felony conviction, shall not exceed the 5 greater of: (i) five years from the date of such conviction, or (ii) 6 three years from the date of the expiration of the maximum term of an 7 indeterminate sentence of imprisonment actually imposed; or in the case 8 of a conviction for a class A misdemeanor, shall not exceed three years 9 from the date of such conviction; or in the case of a conviction for any 10 other offense, shall not exceed one year from the date of conviction, 11 PROVIDED, HOWEVER, THAT IN THE CASE OF A CONVICTION FOR AN OFFENSE FOR 12 WHICH REGISTRATION AS A SEX OFFENDER IS REQUIRED PURSUANT TO SUBDIVISION 13 TWO OR THREE OF SECTION ONE HUNDRED SIXTY-EIGHT-A OF THE CORRECTION LAW, 14 AND THE VICTIM OF SUCH OFFENSE WAS UNDER THE AGE OF EIGHTEEN AT THE TIME 15 OF SUCH OFFENSE, THE DURATION OF AN ORDER OF PROTECTION ISSUED PURSUANT 16 TO THIS SUBDIVISION MAY BE, BUT SHALL NOT EXCEED, THE GREATER OF THE 17 APPLICABLE DURATION PROVIDED FOR IN THE FOREGOING PROVISIONS OF THIS 18 SUBDIVISION OR UNTIL THE VICTIM OF SUCH OFFENSE ATTAINS THE AGE OF EIGH- 19 TEEN. For purposes of determining the duration of an order of 20 protection entered pursuant to this subdivision, a conviction shall be 21 deemed to include a conviction that has been replaced by a youthful 22 offender adjudication. In addition to any other conditions such an order 23 may require that the defendant: 24 S 18. No municipal corporation, as defined in section 2 of the general 25 municipal law, shall, on or after the effective date of the chapter of 26 the laws of 2011 that created this section, enact any local law, ordi- 27 nance, code, rule or regulation requiring a sex offender, as such term 28 is defined by section 168-a of the correction law, to comply with a 29 residency restriction. The provisions of this act shall invalidate and 30 preempt any such local law, ordinance, code, rule or regulation enacted 31 after the effective date of the chapter of the laws of 2011 that added 32 this section. 33 S 19. The provisions of this act shall preempt and invalidate any 34 local law, ordinance, code, rule or regulation enacted before the effec- 35 tive date of the chapter of the laws of 2011 that added this section 36 requiring a sex offender, as such term is defined by section 168-a of 37 the correction law, to comply with a residency restriction, except that 38 nothing in this act shall preclude any local probation department from 39 enforcing any lawful condition of probation that may be imposed on a 40 sentenced offender. 41 S 20. The district attorney may file a petition to seek the imposition 42 of a residency restriction for: (i) a sex offender classified as a level 43 2 or 3 offender who stands convicted of a felony which requires regis- 44 tration pursuant to article 6-C of the correction law and who is at 45 liberty on the effective date of this act; and (ii) a sex offender who 46 was convicted of a felony which requires registration pursuant to arti- 47 cle 6-C of the correction law prior to the effective date of this act 48 and is incarcerated in a state or local correctional facility on the 49 effective date of this act and is classified as a level 2 or 3 offender. 50 A petition filed pursuant to paragraph (i) of this section shall be 51 filed with the sentencing court or the court which made the determi- 52 nation regarding the level of notification of such offender within one 53 year of the effective date of this act. A petition filed pursuant to 54 paragraph (ii) of this section shall be filed with the sentencing court 55 or the court which made the determination regarding the level of notifi- 56 cation of such offender within one year of the release of such offender A. 3655 14 1 from incarceration. The petition shall set forth the reasons for seeking 2 the residency restriction and the district attorney shall bear the 3 burden, by clear and convincing evidence, of proving the facts support- 4 ing the imposition of a residency restriction. Upon receipt of a peti- 5 tion submitted pursuant to this section, the court shall proceed in a 6 manner consistent with subdivision 4 of section 168-o of the correction 7 law. Applying the guidelines established in subdivision 5-a of section 8 168-1 of the correction law, the court shall determine whether to impose 9 a residency restriction on the offender named in the petition pursuant 10 to section 168-w of the correction law. In the event that the district 11 attorney's petition is granted, the sex offender may appeal as of right 12 from the order, pursuant to the provisions of articles 55, 56 and 57 of 13 the civil practice law and rules. Where counsel has been assigned to 14 represent the offender upon the ground that he or she is financially 15 unable to retain counsel, that assignment shall be continued throughout 16 the pendency of the appeal, and the person may proceed as a poor person, 17 pursuant to article eighteen-B of the county law. 18 S 21. This act shall take effect immediately, provided that the amend- 19 ments to the opening paragraph of subdivision 4 of section 530.13 of the 20 criminal procedure law made by section sixteen of this act shall be 21 subject to the expiration and reversion of such paragraph pursuant to 22 section 74 of chapter 3 of the laws of 1995, as amended, when upon such 23 date the provisions of section seventeen of this act shall take effect.