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 16-6)

Status: (Introduced) 2019-02-20 - 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.
                                                                   LBD00571-01-9

        A. 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 she

        A. 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  he

        A. 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  or

        A. 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 and

        A. 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 community

        A. 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  six

        A. 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 or

        A. 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. The

        A. 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.
feedback