Bill Text: NY A05889 | 2019-2020 | General Assembly | Introduced
Bill Title: Enacts "The Domestic Violence Protection Act - Brittany's Law" requiring registration of violent felony offenders; sets forth duties of the division of criminal justice services; establishes a special telephone number; requires the division to maintain a subdirectory of violent predators.
Spectrum: Slight Partisan Bill (Republican 17-11)
Status: (Introduced - Dead) 2020-01-08 - referred to correction [A05889 Detail]
Download: New_York-2019-A05889-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 5889 2019-2020 Regular Sessions IN ASSEMBLY February 20, 2019 ___________ Introduced by M. of A. GUNTHER, KOLB, SANTABARBARA, BARRETT, STECK, JONES, GOODELL, NORRIS, MORINELLO, FINCH, M. L. MILLER -- Multi-Spon- sored by -- M. of A. BARNWELL, FITZPATRICK, GIGLIO, JOHNS, McDONOUGH, MONTESANO, PALMESANO, RAIA, STEC -- read once and referred to the Committee on Correction AN ACT to amend the penal law and the correction law, in relation to enacting "The Domestic Violence Protection Act - Brittany's Law" The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. This act shall be known and may be cited as "The Domestic 2 Violence Protection Act - Brittany's Law". 3 § 2. The penal law is amended by adding two new sections 195.03 and 4 195.04 to read as follows: 5 § 195.03 Failure to register or verify as a violent felony offender in 6 the second degree. 7 A person is guilty of failure to register or verify as a violent felo- 8 ny offender in the second degree when, being a violent felony offender 9 required to register or verify pursuant to article six-B of the 10 correction law, he or she fails to register or verify in the manner and 11 within the time periods provided for in such article. 12 Failure to register or verify as a violent felony offender in the 13 second degree is a class E felony. 14 § 195.04 Failure to register or verify as a violent felony offender in 15 the first degree. 16 A person is guilty of failure to register or verify as a violent felo- 17 ny offender in the first degree when he or she commits the crime of 18 failure to register or verify as a violent felony offender in the second 19 degree and has previously been convicted of failure to register or veri- 20 fy as a violent felony offender in the second degree as defined in 21 section 195.03 of this article. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD00571-01-9A. 5889 2 1 Failure to register or verify as a violent felony offender in the 2 first degree is a class D felony. 3 § 3. The correction law is amended by adding a new article 6-B to read 4 as follows: 5 ARTICLE 6-B 6 VIOLENT FELONY OFFENDER REGISTRATION 7 Section 162. Definitions. 8 163. Duties of the division; registration information. 9 164. Violent felony offender; relocation; notification. 10 165. Duties of the court. 11 166. Discharge of violent felony offender from correctional 12 facility; duties of official in charge. 13 167. Duty to register. 14 167-a. Prior convictions; duty to inform and register. 15 167-b. Duration of registration. 16 167-c. Registration requirements. 17 167-d. Notification of local law enforcement agencies of change 18 of address. 19 167-e. Registration for change of address from another state. 20 167-f. Board of examiners of violent felony offenders. 21 167-g. Review. 22 167-h. Judicial determination. 23 167-i. Petition for relief. 24 167-j. Special telephone number. 25 167-k. Violent predator subdirectory. 26 167-l. Immunity from liability. 27 167-m. Annual report. 28 167-n. Failure to register; penalty. 29 167-o. Unauthorized release of information. 30 167-p. Severability. 31 167-q. Subdirectory; internet posting. 32 § 162. Definitions. As used in this article, the following definitions 33 apply: 34 1. "Violent felony offender" includes any person who is convicted of a 35 violent felony offense as defined under section 70.02 of the penal law 36 or a class A felony offense defined in the penal law other than a class 37 A felony offense defined in article two hundred twenty of the penal law. 38 Convictions that result from or are connected with the same act, or 39 result from offenses committed at the same time, shall be counted for 40 the purpose of this article as one conviction. Any conviction set aside 41 pursuant to law is not a conviction for purposes of this article. 42 2. "Violent felony offense" means a conviction for an offense as 43 defined under section 70.02 of the penal law or a class A felony offense 44 defined in the penal law other than a class A offense defined in article 45 two hundred twenty of the penal law. 46 3. "Law enforcement agency having jurisdiction" means the chief law 47 enforcement officer in the village, town or city in which the violent 48 felony offender expects to reside upon his or her discharge, probation, 49 parole or upon any form of state or local conditional release. 50 4. "Division" means the division of criminal justice services estab- 51 lished under article thirty-five of the executive law. 52 5. "Hospital" means a hospital as defined in subdivision two of 53 section four hundred of this chapter and applies to persons committed to 54 such hospital by order of commitment made pursuant to article sixteen of 55 this chapter.A. 5889 3 1 6. "Violent predator" means a person who has been convicted of a 2 violent felony offense as defined in this article, or a violent felony 3 offender as defined in this article who suffers from a mental abnor- 4 mality that makes such person likely to engage in violent conduct. 5 7. "Mental abnormality" means a congenital or acquired condition of a 6 person that affects the emotional or volitional capacity of the person 7 in a manner that predisposes that person to the commission of criminal 8 violent acts to a degree that makes the person a menace to the health 9 and safety of other persons. 10 8. "Board" means the board of examiners of violent felony offenders 11 established pursuant to section one hundred sixty-seven-f of this arti- 12 cle. 13 9. "Local correctional facility" means a local correctional facility 14 as that term is defined in subdivision sixteen of section two of this 15 chapter. 16 § 163. Duties of the division; registration information. 1. The divi- 17 sion shall establish and maintain a file of individuals required to 18 register pursuant to the provisions of this article which shall include 19 the following information of each registrant: 20 (a) The violent felony offender's name, all aliases used, date of 21 birth, sex, race, height, weight, eye color, driver's license number, 22 home address and/or expected place of domicile. 23 (b) A photograph and set of fingerprints. 24 (c) A description of the offense for which the violent felony offender 25 was convicted, the date of conviction and the sentence imposed. 26 (d) Any other information deemed pertinent by the division. 27 2. The division is authorized to make the registry available to any 28 regional or national registry of violent felony offenders for the 29 purpose of sharing information. The division shall accept files from any 30 regional or national registry of violent felony offenders and shall make 31 such files available when requested pursuant to the provisions of this 32 article. The division shall require that no information included in the 33 registry shall be made available except in the furtherance of the 34 provisions of this article. 35 3. The division shall develop a standardized registration form to be 36 made available to the appropriate authorities and promulgate rules and 37 regulations to implement the provisions of this section. 38 4. The division shall mail a nonforwardable verification form to the 39 last reported address of the person for annual verification require- 40 ments. 41 5. The division shall also establish and operate a telephone number as 42 provided for in section one hundred sixty-seven-j of this article. 43 6. The division shall also establish a violent predator subdirectory 44 pursuant to section one hundred sixty-seven-k of this article. 45 7. The division shall also establish a public awareness campaign to 46 advise the public of the provisions of this article. 47 § 164. Violent felony offender; relocation; notification. 1. In the 48 case of any violent felony offender, it shall be the duty of the depart- 49 ment, hospital or local correctional facility at least ten calendar days 50 prior to the release or discharge of any violent felony offender from a 51 correctional facility, hospital or local correctional facility to notify 52 the law enforcement agency having jurisdiction where appropriate, and 53 law enforcement agency having had jurisdiction at the time of his or her 54 conviction, of the contemplated release or discharge of such violent 55 felony offender, informing such law enforcement agencies of the name and 56 aliases of the violent felony offender, the address at which he or sheA. 5889 4 1 proposes to reside, the address at which he or she resided at the time 2 of his or her conviction, the amount of time remaining to be served, if 3 any, on the full term for which he or she was sentenced, and the nature 4 of the crime for which he or she was sentenced, transmitting at the same 5 time a copy of such violent felony offender's fingerprints and photo- 6 graph and a summary of his or her criminal record. If such violent felo- 7 ny offender changes his or her place of residence while on parole, such 8 notification of the change of residence shall be sent by the violent 9 felony offender's parole officer within forty-eight hours to the law 10 enforcement agency in which the new place of residence is located. 11 2. In the case of any violent felony offender convicted and sentenced 12 to probation, conditional discharge or unconditional discharge, it shall 13 be the duty of the court within twenty-four hours after such sentence to 14 notify the law enforcement agency having jurisdiction, where appropri- 15 ate, and the law enforcement agency having had jurisdiction at the time 16 of his or her conviction, if different from where he or she currently 17 resides, and/or where he or she currently resides, of the sentence of 18 probation, conditional discharge or unconditional discharge, informing 19 such law enforcement agencies of the name and aliases of the person, the 20 address at which he or she proposes to reside, resided at and/or at 21 which he or she currently resides, the amount of time to be served on 22 probation, and the nature of the crime for which he or she was 23 sentenced, transmitting at the same time a copy of such violent felony 24 offender's fingerprints and photograph and a summary of his or her crim- 25 inal record. If such person changes his or her place of residence while 26 on probation, such notification of the change of residence shall be sent 27 by the violent felony offender's probation officer within forty-eight 28 hours to the law enforcement agency having jurisdiction in which the new 29 place of residence is located. 30 3. In the case of any violent felony offender, who on the effective 31 date of this subdivision is on parole or probation, it shall be the duty 32 of such violent felony offender's parole or probation officer within 33 forty-five calendar days of the effective date of this subdivision to 34 notify the law enforcement agency having had jurisdiction in which such 35 person resided at the time of his or her conviction, if different from 36 where he or she currently resides and/or where he or she currently 37 resides, of the name and aliases of such violent felony offender, the 38 address at which he or she resided and/or at which he or she currently 39 resides, the amount of time to be served on parole or probation, the 40 nature of the crime for which he or she was sentenced, transmitting at 41 the same time a copy of such violent felony offender's fingerprints and 42 photograph and a summary of his or her criminal record. If such violent 43 felony offender changes his or her place of residence while on parole or 44 probation, such notification of the change of residence shall be sent by 45 the violent felony offender's parole or probation officer within forty- 46 eight hours to the law enforcement agency having jurisdiction in which 47 the new place of residence is located. 48 4. In the case in which any violent felony offender escapes from a 49 state or local correctional facility or hospital, the designated offi- 50 cial of the facility or hospital where the person was confined shall 51 notify within twenty-four hours the law enforcement agency having had 52 jurisdiction at the time of his or her conviction, informing such law 53 enforcement agency of the name and aliases of the person, and the 54 address at which he or she resided at the time of his or her conviction, 55 the amount of time remaining to be served if any, on the full term for 56 which he or she was sentenced, and the nature of the crime for which heA. 5889 5 1 or she was sentenced, transmitting at the same time a copy of such 2 violent felony offender's fingerprints and photograph and a summary of 3 his or her criminal record. 4 § 165. Duties of the court. 1. Upon conviction the court shall certify 5 that the person is a violent felony offender and shall include the 6 certification in the order of commitment. The court shall also advise 7 the violent felony offender of the duties of this article. 8 2. Any violent felony offender, who is released on probation or 9 discharged upon payment of a fine shall, prior to such release or 10 discharge, be informed of his or her duty to register under this article 11 by the court in which he or she was convicted. Where the court orders a 12 violent felony offender released on probation, such order must include a 13 provision requiring that he or she comply with the requirements of this 14 article. Where such violent felony offender violates such provision, 15 probation may be immediately revoked in the manner provided by article 16 four hundred ten of the criminal procedure law. The court shall require 17 the violent felony offender to read and sign such form as may be 18 required by the division stating the duty to register and the procedure 19 for registration has been explained to him or her. The court shall on 20 such form obtain the address where the violent felony offender expects 21 to reside upon his or her release, and shall report the address to the 22 division. The court shall give one copy of the form to the violent felo- 23 ny offender and shall send two copies to the division which shall 24 forward one copy to the law enforcement agency having jurisdiction where 25 the violent felony offender expects to reside upon his or her release. 26 Within ten calendar days of being released on probation or discharged 27 upon payment of a fine, such violent felony offender shall register with 28 the division for purposes of verifying such violent felony offender's 29 intended place of residence. On each anniversary of the violent felony 30 offender's original registration date, the provisions of section one 31 hundred sixty-seven of this article shall apply. The division shall 32 also immediately forward the conviction data and fingerprints to the 33 Federal Bureau of Investigation if not already obtained. 34 3. For violent felony offenders under this section, it shall be the 35 duty of the court applying the guidelines established in subdivision 36 five of section one hundred sixty-seven-f of this article to determine 37 the duration of registration pursuant to section one hundred sixty-sev- 38 en-b of this article and notification pursuant to subdivision six of 39 section one hundred sixty-seven-f of this article. In making the deter- 40 mination, the court shall review any victim's statement and any materi- 41 als submitted by the violent felony offender. The court shall also allow 42 the violent felony offender to appear and be heard, and inform the 43 violent felony offender of his or her right to have counsel appointed, 44 if necessary. 45 § 166. Discharge of violent felony offender from correctional facili- 46 ty; duties of official in charge. 1. Any violent felony offender, to be 47 discharged, paroled or released from any state or local correctional 48 facility, hospital or institution where he or she was confined or 49 committed, shall within forty-five calendar days prior to discharge, 50 parole or release, be informed of his or her duty to register under this 51 article, by the facility in which he or she was confined or committed. 52 The facility shall require the violent felony offender to read and sign 53 such form as may be required by the division stating the duty to regis- 54 ter and the procedure for registration has been explained to him or her. 55 The facility shall obtain on such form the address where the violent 56 felony offender expects to reside upon his or her discharge, parole orA. 5889 6 1 release and shall report the address to the division. The facility shall 2 give one copy of the form to the violent felony offender and shall send 3 two copies to the division which shall forward one copy to the law 4 enforcement agency having jurisdiction where the violent felony offender 5 expects to reside upon his or her discharge, parole or release. In addi- 6 tion, the facility shall give the violent felony offender a form to 7 register with the division within ten calendar days for purposes of 8 verifying such violent felony offender's intended place of residence. 9 2. The division shall also immediately transmit the conviction data 10 and fingerprints to the Federal Bureau of Investigation, if not already 11 obtained. 12 § 167. Duty to register. 1. Any violent felony offender, who is 13 discharged, paroled or released from any state or local correctional 14 facility, hospital or institution where he or she was confined or 15 committed, shall register with the division within ten calendar days for 16 purposes of verifying such violent felony offender's intended place of 17 residence. 18 2. For a violent felony offender required to register under this arti- 19 cle on each anniversary of the violent felony offender's initial regis- 20 tration date during the period on which he or she is required to regis- 21 ter under this section the following applies: 22 (a) The violent felony offender shall mail the verification form to 23 the division within ten calendar days after receipt of the form. 24 (b) The verification form shall be signed by the violent felony offen- 25 der, and state that he or she still resides at the address last reported 26 to the division. 27 (c) If the violent felony offender fails to mail the verification form 28 to the division within ten calendar days after receipt of the form, he 29 or she shall be in violation of this section. 30 3. The provisions of subdivision two of this section shall be applied 31 to a violent felony offender required to register under this article 32 except that such violent felony offender designated as a violent preda- 33 tor must personally verify with the local law enforcement agency, the 34 registration every ninety calendar days after the date of the initial 35 release or commencement of parole. 36 4. Any violent felony offender shall register with the division within 37 ten calendar days prior to any change of address. The division shall, if 38 the violent felony offender changes residence to another state, notify 39 the appropriate state law enforcement agency with which the violent 40 felony offender must register in the new state. If any person required 41 to register as provided in this article changes the address of his or 42 her residence, the violent felony offender shall within ten calendar 43 days, inform in writing the law enforcement agency where last registered 44 of the new address. The law enforcement agency shall, within three 45 calendar days of receipt of the new address, forward this information to 46 the division and to the law enforcement agency having jurisdiction in 47 the new place of residence. 48 5. The duty to register under the provisions of this article shall not 49 be applicable to any violent felony offender whose conviction was 50 reversed upon appeal or who was pardoned by the governor. 51 § 167-a. Prior convictions; duty to inform and register. 1. It shall 52 be the duty of the sentencing court applying the guidelines established 53 in subdivision five of section one hundred sixty-seven-f of this article 54 to determine the duration of registration pursuant to section one 55 hundred sixty-seven-b of this article and notification pursuant to 56 subdivision six of section one hundred sixty-seven-f of this article andA. 5889 7 1 notification for every violent felony offender who on the effective date 2 of this article is then on parole or probation for committing a violent 3 felony offense or a class A offense defined in the penal law except for 4 a class A offense defined in article two hundred twenty of the penal 5 law. 6 2. Every violent felony offender who on the effective date of this 7 article is then on parole or probation for a violent felony offense 8 shall within ten calendar days of such determination register with his 9 or her parole or probation officer. On each anniversary of the violent 10 felony offender's initial registration date thereafter, the provisions 11 of section one hundred sixty-seven of this article shall apply. Any 12 violent felony offender who fails or refuses to so comply shall be 13 subject to the same penalties as otherwise provided for in this article 14 which would be imposed upon a violent felony offender who fails or 15 refuses to so comply with the provisions of this article on or after 16 such effective date. 17 3. It shall be the duty of the parole or probation officer to inform 18 and register such violent felony offender according to the requirements 19 imposed by this article. A parole or probation officer shall give one 20 copy of the form to the violent felony offender and shall, within three 21 calendar days, send two copies electronically or otherwise to the divi- 22 sion which shall forward one copy electronically or otherwise to the law 23 enforcement agency having jurisdiction where the violent felony offender 24 resides upon his or her parole, probation, or upon any form of state or 25 local conditional release. 26 4. A petition for relief from this section is permitted to any violent 27 felony offender required to register while released on parole or 28 probation pursuant to section one hundred sixty-seven-i of this article. 29 § 167-b. Duration of registration. The duration of registration for a 30 violent felony offender shall be annually for a period of ten years from 31 the initial date of registration, provided, however, that for a violent 32 predator, shall annually register and verify quarterly for a minimum of 33 ten years unless the court determines in accordance with section one 34 hundred sixty-seven-i of this article, that the person no longer suffers 35 from a mental abnormality that would make him or her likely to engage in 36 a predatory violent offense. 37 § 167-c. Registration requirements. Registration as required by this 38 article shall consist of a statement in writing signed by the violent 39 felony offender giving the information that is required by the division 40 and the division shall enter the information into an appropriate elec- 41 tronic database or file. 42 § 167-d. Notification of local law enforcement agencies of change of 43 address. 1. Upon receipt of a change of address by a violent felony 44 offender required to register under this article, the local law enforce- 45 ment agency where the violent felony offender last registered shall 46 within three calendar days of receipt of the new address, forward this 47 information to the division and to the local law enforcement agency 48 having jurisdiction of the new place of residence. 49 2. A change of address by a violent felony offender required to regis- 50 ter under this article shall be immediately reported by the division to 51 the appropriate law enforcement agency having jurisdiction where the 52 violent felony offender is residing. 53 3. Upon receipt of change of address information, the local law 54 enforcement agency having jurisdiction of the new place of residence 55 shall adhere to the notification provisions set forth in subdivision six 56 of section one hundred sixty-seven-f of this article.A. 5889 8 1 § 167-e. Registration for change of address from another state. 1. A 2 violent felony offender who has been convicted of an offense which 3 requires registration under section one hundred sixty-seven-c of this 4 article shall register the new address with the division no later than 5 ten calendar days after such violent felony offender establishes resi- 6 dence in this state. The division shall coordinate with the designated 7 law enforcement agency of the state of which the individual departed on 8 information relevant to the duration of registration. 9 2. The division shall advise the board that the offender has estab- 10 lished residence in this state. The board shall determine whether the 11 offender is required to register with the division. If it is determined 12 that the offender is required to register, the division shall notify the 13 offender of his or her duty to register under this article and shall 14 require the offender to sign a form as may be required by the division 15 acknowledging that the duty to register and the procedure for registra- 16 tion has been explained to the offender. The division shall obtain on 17 such form the address where the offender expects to reside within the 18 state and the offender shall retain one copy of the form and send two 19 copies to the division which shall provide the information to the law 20 enforcement agency having jurisdiction where the offender expects to 21 reside within this state. No later than thirty days prior to the board 22 making a recommendation, the offender shall be notified that his or her 23 case is under review and that he or she is permitted to submit to the 24 board any information relevant to the review. After reviewing any infor- 25 mation obtained, and applying the guidelines established in subdivision 26 five of section one hundred sixty-seven-f of this article, the board 27 shall within sixty calendar days make a recommendation regarding the 28 level of notification pursuant to subdivision six of section one hundred 29 sixty-seven-f of this article and whether such offender shall be desig- 30 nated a violent felony offender or a violent predator. This recommenda- 31 tion shall be confidential and shall not be available for public 32 inspection. It shall be submitted by the board to the county court or 33 supreme court and to the district attorney in the county of residence of 34 the offender and to the offender. It shall be the duty of the county 35 court or supreme court in the county of residence of the offender, 36 applying the guidelines established in subdivision five of section one 37 hundred sixty-seven-f of this article, to determine the level of notifi- 38 cation pursuant to subdivision six of section one hundred sixty-seven-f 39 of this article and whether such offender shall be designated a violent 40 felony offender or a violent predator. At least thirty days prior to 41 the determination proceeding, such court shall notify the district 42 attorney and the offender, in writing, of the date of the determination 43 proceeding and the court shall also provide the district attorney and 44 offender with a copy of the recommendation received from the board and 45 any statement of the reasons for the recommendation received from the 46 board. This notice shall include the following statement or a substan- 47 tially similar statement: "This proceeding is being held to determine 48 whether you will be classified as a level 3 offender (risk of repeat 49 offense is high), a level 2 offender (risk of repeat offense is moder- 50 ate), or a level 1 offender (risk of repeat offense is low), or whether 51 you will be designated as a violent felony offender or a violent preda- 52 tor, which will determine how long you must register as an offender and 53 how much information can be provided to the public concerning your 54 registration. If you fail to appear at this proceeding, without suffi- 55 cient excuse, it shall be held in your absence. Failure to appear may 56 result in a longer period of registration or a higher level of communityA. 5889 9 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 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 offender on which the offender may 8 apply for assignment of counsel. If the offender applies for assignment 9 of counsel and the court finds that the offender is financially unable 10 to retain counsel, the court shall assign counsel to represent the 11 offender pursuant to article eighteen-B of the county law. If the 12 district attorney seeks a determination that differs from the recommen- 13 dation submitted by the board, at least ten days prior to the determi- 14 nation proceeding the district attorney shall provide to the court and 15 the offender a 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 offender to appear and be heard. The 18 state shall appear by the district attorney, or his or her designee, who 19 shall bear the burden of proving the facts supporting the determinations 20 sought by clear and convincing evidence. It shall be the duty of the 21 court applying the guidelines established in subdivision five of section 22 one hundred sixty-seven-f of this article to determine the level of 23 notification pursuant to subdivision six of section one hundred sixty- 24 seven-f of this article and whether such offender shall be designated a 25 violent felony offender or a violent predator. Where there is a dispute 26 between the parties concerning the determinations, the court shall 27 adjourn the hearing as necessary to permit the offender or the district 28 attorney to obtain materials relevant to the determinations from the 29 state board of examiners of offenders or any state or local facility, 30 hospital, institution, office, agency, department or division. Such 31 materials may be obtained by subpoena if not voluntarily provided to the 32 requesting party. In making the determinations the court shall review 33 any victim's statement and any relevant materials and evidence submitted 34 by the offender and the district attorney and the recommendation and any 35 material submitted by the board, and may consider reliable hearsay 36 evidence submitted by either party, provided that it is relevant to the 37 determinations. If available, facts proven at trial or elicited at the 38 time of a plea of guilty shall be deemed established by clear and 39 convincing evidence and shall not be relitigated. The court shall render 40 an order setting forth its determinations and the findings of fact and 41 conclusions of law on which the determinations are based. A copy of the 42 order shall be submitted by the court to the division. Upon application 43 of either party, the court shall seal any portion of the court file or 44 record which contains material that is confidential under any state or 45 federal statute. Either party may appeal as of right from the order 46 pursuant to the provisions of articles fifty-five, fifty-six and fifty- 47 seven of the civil practice law and rules. Where counsel has been 48 assigned to represent the offender upon the ground that the offender is 49 financially unable to retain counsel, that assignment shall be continued 50 throughout the pendency of the appeal, and the person may appeal as a 51 poor person pursuant to article eighteen-B of the county law. 52 3. If an offender, having been given notice, including the time and 53 place of the determination proceeding in accordance with this section, 54 fails to appear at this proceeding, without sufficient excuse, the court 55 shall conduct the hearing and make the determinations in the manner set 56 forth in subdivision two of this section.A. 5889 10 1 § 167-f. Board of examiners of violent felony offenders. 1. There 2 shall be a board of examiners of violent felony offenders which shall 3 possess the powers and duties specified in this section. Such board 4 shall consist of five members of the department who shall be appointed 5 by the governor, three of whom shall be experts in the field of the 6 behavior and treatment of violent felony offenders. The term of office 7 of each member of such board shall be for six years; provided, however, 8 that any member chosen to fill a vacancy occurring otherwise than by 9 expiration of term shall be appointed for the remainder of the unexpired 10 term of the member whom he or she is to succeed. In the event of the 11 inability to act of any member, the governor may appoint some competent 12 informed person to act in his or her stead during the continuance of 13 such disability. 14 2. The governor shall designate one of the members of the board as 15 chairman to serve in such capacity at the pleasure of the governor or 16 until the member's term of office expires and a successor is designated 17 in accordance with law, whichever first occurs. 18 3. Any member of the board may be removed by the governor for cause 19 after an opportunity to be heard. 20 4. Except as otherwise provided by law, a majority of the board shall 21 constitute a quorum for the transaction of all business of the board. 22 5. The board shall develop guidelines and procedures to assess the 23 risk of a repeat offense by such violent felony offender and the threat 24 posed to the public safety. Such guidelines shall be based upon, but not 25 limited to, the following: 26 (a) criminal history factors indicative of high risk of repeat 27 offense, including: (i) whether the violent felony offender has a mental 28 abnormality; 29 (ii) whether the violent felony offender's conduct was found to be 30 characterized by repetitive and compulsive behavior, associated with 31 drugs or alcohol; 32 (iii) whether the violent felony offender served the maximum term; 33 (iv) whether the violent felony offender committed the violent felony 34 offense against a child; 35 (v) the age of the violent felony offender at the time of the commis- 36 sion of the first violent offense; 37 (b) other criminal history factors to be considered in determining 38 risk, including: 39 (i) the relationship between such violent felony offender and the 40 victim; 41 (ii) whether the offense involved the use of a weapon, violence or 42 infliction of serious bodily injury; 43 (iii) the number, date and nature of prior offenses; 44 (c) conditions of release that minimize risk of re-offense, including 45 but not limited to whether the violent felony offender is under super- 46 vision; receiving counseling, therapy or treatment; or residing in a 47 home situation that provides guidance and supervision; 48 (d) physical conditions that minimize risk of re-offense, including 49 but not limited to advanced age or debilitating illness; 50 (e) whether psychological or psychiatric profiles indicate a risk of 51 recidivism; 52 (f) the violent felony offender's response to treatment; 53 (g) recent behavior, including behavior while confined; 54 (h) recent threats or gestures against persons or expressions of 55 intent to commit additional offenses; and 56 (i) review of any victim impact statement.A. 5889 11 1 6. Applying these guidelines, the board shall within sixty calendar 2 days prior to the discharge, parole or release of a violent felony 3 offender make a recommendation which shall be confidential and shall not 4 be available for public inspection, to the sentencing court as to wheth- 5 er such violent felony offender warrants the designation of violent 6 predator. In addition, the guidelines shall be applied by the board to 7 make a recommendation to the sentencing court, providing for one of the 8 following three levels of notification notwithstanding any other 9 provision of law depending upon the degree of the risk of re-offense by 10 the violent felony offender. 11 (a) If the risk of repeat offense is low, a level one designation 12 shall be given to such violent felony offender. In such case the law 13 enforcement agency having jurisdiction and the law enforcement agency 14 having had jurisdiction at the time of his or her conviction shall be 15 notified pursuant to this article. 16 (b) If the risk of repeat offense is moderate, a level two designation 17 shall be given to such violent felony offender. In such case the law 18 enforcement agency having jurisdiction and the law enforcement agency 19 having had jurisdiction at the time of his or her conviction shall be 20 notified and may disseminate relevant information which may include 21 approximate address based on violent felony offender's zip code, a 22 photograph of the offender, background information including the 23 offender's crime of conviction, modus of operation, type of victim 24 targeted and the description of special conditions imposed on the offen- 25 der to any entity with vulnerable populations related to the nature of 26 the offense committed by such violent felony offender. Any entity 27 receiving information on a violent felony offender may disclose or 28 further disseminate such information at their discretion. 29 (c) If the risk of repeat offense is high and there exists a threat to 30 the public safety, such violent felony offender shall be deemed a 31 "violent predator" and a level three designation shall be given to such 32 violent felony offender. In such case, the law enforcement agency having 33 jurisdiction and the law enforcement agency having had jurisdiction at 34 the time of his or her conviction shall be notified and may disseminate 35 relevant information which may include the violent felony offender's 36 exact address, a photograph of the offender, background information 37 including the offender's crime of conviction, modus of operation, type 38 of victim targeted, and the description of special conditions imposed on 39 the offender to any entity with vulnerable populations related to the 40 nature of the offense committed by such violent felony offenders. 41 Any entity receiving information on a violent felony offender may 42 disclose or further disseminate such information at their discretion. In 43 addition, in such case, the information described in this section shall 44 also be provided in the subdirectory established in this article and 45 notwithstanding any other provision of law, such information shall, upon 46 request, be made available to the public. 47 7. Upon request by the court, pursuant to section one hundred sixty- 48 seven-i of this article, the board shall provide an updated report 49 pertaining to the violent felony offender petitioning relief of duty to 50 register. 51 § 167-g. Review. Notwithstanding any other provision of law to the 52 contrary, any state or local correctional facility, hospital or institu- 53 tion shall forward relevant information pertaining to a violent felony 54 offender to be discharged, paroled or released to the board for review 55 no later than one hundred twenty days prior to the release or discharge 56 and the board shall make recommendations as provided in subdivision sixA. 5889 12 1 of section one hundred sixty-seven-f of this article within sixty days 2 of receipt of the information. Information may include but may not be 3 limited to the commitment file, medical file and treatment file pertain- 4 ing to such person. Such person shall be permitted to submit to the 5 board any information relevant to the review. 6 § 167-h. Judicial determination. 1. A determination that an offender 7 is a violent felony offender or a violent predator shall be made prior 8 to the discharge, parole or release of such offender by the sentencing 9 court after receiving a recommendation from the board pursuant to 10 section one hundred sixty-seven-f of this article. 11 2. In addition, the sentencing court shall also make a determination 12 with respect to the level of notification, after receiving a recommenda- 13 tion from the board pursuant to section one hundred sixty-seven-f of 14 this article. Both determinations of the sentencing court shall be made 15 thirty calendar days prior to discharge, parole or release. 16 3. In making the determination, the court shall review any victim's 17 statement and any materials submitted by the violent felony offender. 18 The court shall also allow the violent felony offender to appear and be 19 heard, and inform the violent felony offender of his or her right to 20 have counsel appointed, if necessary. 21 4. Upon determination that the risk of repeat offense and threat to 22 public safety is high, the sentencing court shall also notify the divi- 23 sion of such fact for the purposes of section one hundred sixty-seven-k 24 of this article. 25 5. Upon the reversal of a conviction of the violent felony offense, 26 the court shall order the expungement of any records required to be kept 27 pursuant to this section. 28 § 167-i. Petition for relief. Any violent felony offender required to 29 register pursuant to this article may be relieved of any further duty to 30 register upon the granting of a petition for relief by the sentencing 31 court. Upon receipt of the petition for relief, the court shall notify 32 the board and request an updated report pertaining to the violent felony 33 offender. After receiving the report from the board, the court may grant 34 or deny the relief sought. The court may consult with the victim prior 35 to making a determination on the petition. Such petition, if granted, 36 shall not relieve the petitioner of the duty to register pursuant to 37 this article upon conviction of any offense requiring registration in 38 the future. 39 § 167-j. Special telephone number. 1. Pursuant to section one hundred 40 sixty-three of this article, the division shall also operate a telephone 41 number that members of the public may call and inquire whether a named 42 individual required to register pursuant to this article is listed. The 43 division shall ascertain whether a named person reasonably appears to be 44 a person so listed and provide the caller with the relevant information 45 according to risk as described in subdivision six of section one hundred 46 sixty-seven-f of this article. The division shall decide whether the 47 named person reasonably appears to be a person listed, based upon infor- 48 mation from the caller providing information that shall include (a) an 49 exact street address, including apartment number, driver's license 50 number or birth date, along with additional information that may include 51 social security number, hair color, eye color, height, weight, distinc- 52 tive markings, ethnicity; or (b) any combination of the above listed 53 characteristics if an exact birth date or address is not available. If 54 three of the characteristics provided include ethnicity, hair color, and 55 eye color, other identifying characteristics shall be provided. Any 56 information identifying the victim by name, birth date, address orA. 5889 13 1 relation to the person listed by the division shall be excluded by the 2 division. 3 2. Whenever there is reasonable cause to believe that any person or 4 group of persons is engaged in a pattern or practice of misuse of the 5 telephone number, the attorney general, any district attorney or any 6 person aggrieved by the misuse of the number is authorized to bring a 7 civil action in the appropriate court requesting preventive relief, 8 including an application for a permanent or temporary injunction, 9 restraining order or other order against the person or group of persons 10 responsible for the pattern or practice of misuse. The foregoing reme- 11 dies shall be independent of any other remedies or procedures that may 12 be available to an aggrieved party under other provisions of law. Such 13 person or group of persons shall be subject to a fine of not less than 14 five hundred dollars and not more than one thousand dollars. 15 3. The division shall submit to the legislature an annual report on 16 the operation of the telephone number. The annual report shall include, 17 but not be limited to, all of the following: 18 (a) number of calls received; 19 (b) a detailed outline of the amount of money expended and the manner 20 in which it was expended for purposes of this section; 21 (c) number of calls that resulted in an affirmative response and the 22 number of calls that resulted in a negative response with regard to 23 whether a named individual was listed; 24 (d) number of persons listed; and 25 (e) a summary of the success of the telephone number program based 26 upon selected factors. 27 § 167-k. Violent predator subdirectory. 1. The division shall maintain 28 a subdirectory of violent predators. The subdirectory shall include the 29 exact address and photograph of the violent felony offender along with 30 the following information, if available: name, physical description, age 31 and distinctive markings. Background information including the violent 32 felony offender's crime of conviction, modus of operation, type of 33 victim targeted, and a description of special conditions imposed on the 34 violent felony offender shall also be included. The subdirectory shall 35 have violent felony offender listings categorized by county and zip 36 code. A copy of the subdirectory shall annually be distributed to the 37 offices of local village, town or city police departments for purposes 38 of public access. Such departments shall require that a person in writ- 39 ing express a purpose in order to have access to the subdirectory and 40 such department shall maintain these requests. Any information identify- 41 ing the victim by name, birth date, address or relation to the violent 42 felony offender shall be excluded from the subdirectory distributed for 43 purposes of public access. The subdirectory provided for in this section 44 shall be updated periodically to maintain its efficiency and usefulness 45 and may be computer accessible. 46 2. Any person who uses information disclosed pursuant to this section 47 in violation of the law shall in addition to any other penalty or fine 48 imposed, be subject to a fine of not less than five hundred dollars and 49 not more than one thousand dollars. Unauthorized removal or duplication 50 of the subdirectory from the offices of local, village or city police 51 department shall be punishable by a fine not to exceed one thousand 52 dollars. In addition, the attorney general, any district attorney, or 53 any person aggrieved is authorized to bring a civil action in the appro- 54 priate court requesting preventive relief, including an application for 55 a permanent or temporary injunction, restraining order, or other order 56 against the person or group of persons responsible for such action. TheA. 5889 14 1 foregoing remedies shall be independent of any other remedies or proce- 2 dures that may be available to an aggrieved party under other provisions 3 of law. 4 § 167-l. Immunity from liability. 1. No official, employee or agency, 5 whether public or private, shall be subject to any civil or criminal 6 liability for damages for any discretionary decision to release relevant 7 and necessary information pursuant to this section, provided that it is 8 shown that such official, employee or agency acted reasonably and in 9 good faith. The immunity provided under this section applies to the 10 release of relevant information to other employees or officials or to 11 the general public. 12 2. Nothing in this section shall be deemed to impose any civil or 13 criminal liability upon or to give rise to a cause of action against any 14 official, employee or agency, whether public or private, for failing to 15 release information as authorized in this section provided that it is 16 shown that such official, employee or agency acted reasonably and in 17 good faith. 18 § 167-m. Annual report. The division shall on or before February first 19 in each year file a report with the governor, and the legislature 20 detailing the program, compliance with provisions of this article and 21 effectiveness of the provisions of this article, together with any 22 recommendations to further enhance the intent of this article. 23 § 167-n. Failure to register; penalty. Any person required to register 24 pursuant to the provisions of this article who fails to register in the 25 manner and within the time periods provided for in this article shall be 26 guilty of a class E felony for the first offense, and for a second or 27 subsequent offense shall be guilty of a class D felony respectively in 28 accordance with sections 195.03 and 195.04 of the penal law. Any such 29 failure to register may also be the basis for revocation of parole 30 pursuant to section two hundred fifty-nine-i of the executive law which 31 shall be in addition to any other penalties provided by law. 32 § 167-o. Unauthorized release of information. The unauthorized release 33 of any information required by this article shall be a class B misdemea- 34 nor. 35 § 167-p. Severability. If any clause, sentence, paragraph, section or 36 part of this act shall be adjudged by any court of competent jurisdic- 37 tion to be invalid and after exhaustion of all further judicial review, 38 the judgment shall not affect, impair or invalidate the remainder there- 39 of, but shall be confined in its operation to the clause, sentence, 40 paragraph, section or part of this act directly involved in the contro- 41 versy in which the judgment shall have been rendered. 42 § 167-q. Subdirectory; internet posting. 1. The division shall main- 43 tain a subdirectory of level two and three violent felony offenders. The 44 subdirectory shall include the exact address, address of the offender's 45 place of employment and photograph of the violent felony offender along 46 with the following information, if available: name, physical 47 description, age and distinctive markings. Background information 48 including the violent felony offender's crime of conviction, modus of 49 operation, type of victim targeted, the name and address of any institu- 50 tion of higher education at which the violent felony offender is 51 enrolled, attends, is employed or resides and a description of special 52 conditions imposed on the violent felony offender shall also be 53 included. The subdirectory shall have violent felony offender listings 54 categorized by county and zip code. A copy of the subdirectory shall 55 annually be distributed to the offices of local village, town, city, 56 county or state law enforcement agencies for purposes of public access.A. 5889 15 1 The division shall distribute monthly updates to the offices of local 2 village, town, city, county or state law enforcement agencies for 3 purposes of public access. Such departments shall require that a person 4 in writing provide their name and address prior to viewing the subdirec- 5 tory. Any information identifying the victim by name, birth date, 6 address or relation to the violent felony offender shall be excluded 7 from the subdirectory distributed for purposes of public access. The 8 subdirectory provided for herein shall be updated monthly to maintain 9 its efficiency and usefulness and shall be computer accessible. Such 10 subdirectory shall be made available at all times on the internet via 11 the division homepage. Any person may apply to the division to receive 12 automated e-mail notifications whenever a new or updated subdirectory 13 registration occurs in a geographic area specified by such person. The 14 division shall furnish such service at no charge to such person, who 15 shall request e-mail notification by county and/or zip code on forms 16 developed and provided by the division. E-mail notification is limited 17 to three geographic areas per e-mail account. 18 2. Any person who uses information disclosed pursuant to this section 19 in violation of the law shall in addition to any other penalty or fine 20 imposed, be subject to a fine of not less than five hundred dollars and 21 not more than one thousand dollars. Unauthorized removal or duplication 22 of the subdirectory from the offices of local, village or city police 23 department shall be punishable by a fine not to exceed one thousand 24 dollars. In addition, the attorney general, any district attorney, or 25 any person aggrieved is authorized to bring a civil action in the appro- 26 priate court requesting preventive relief, including an application for 27 a permanent or temporary injunction, restraining order, or other order 28 against the person or group of persons responsible for such action. The 29 foregoing remedies shall be independent of any other remedies or proce- 30 dures that may be available to an aggrieved party under other provisions 31 of law. 32 § 4. This act shall take effect on the one hundred eightieth day after 33 it shall have become a law; provided, however, that effective immediate- 34 ly, the addition, amendment and/or repeal of any rule or regulation 35 necessary for the implementation of this act on its effective date are 36 authorized and directed to be made and completed on or before such 37 effective date.
