Bill Text: NY A05925 | 2019-2020 | General Assembly | Introduced
Bill Title: Brings the sex offender registration act concerning sex offender classification status into parity with case law as decided by the Federal Court of Appeals, Second Circuit; includes certain due process requirements for a sexual offender classification hearing.
Spectrum: Partisan Bill (Democrat 4-0)
Status: (Introduced - Dead) 2020-01-08 - referred to correction [A05925 Detail]
Download: New_York-2019-A05925-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 5925 2019-2020 Regular Sessions IN ASSEMBLY February 20, 2019 ___________ Introduced by M. of A. ENGLEBRIGHT, ORTIZ, COLTON -- Multi-Sponsored by -- M. of A. GALEF -- read once and referred to the Committee on Correction AN ACT to amend the correction law, in relation to the judicial determi- nation that an offender is a sex offender or a sexually violent preda- tor; and to repeal subdivision 2 of section 168-k of such law relating thereto The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Subdivision 3 of section 168-d of the correction law, as 2 amended by chapter 11 of the laws of 2002, is amended to read as 3 follows: 4 3. For sex offenders released on probation or discharged upon payment 5 of a fine, conditional discharge or unconditional discharge, [it shall6be the duty of the court applying the guidelines established in subdivi-7sion five of section one hundred sixty-eight-l of this article to deter-8mine the level of notification pursuant to subdivision six of section9one hundred sixty-eight-l of this article and whether such sex offender10shall be designated a sexual predator, sexually violent offender, or11predicate sex offender as defined in subdivision seven of section one12hundred sixty-eight-a of this article. At least fifteen days prior to13the determination proceeding, the district attorney shall provide to the14court and the sex offender a written statement setting forth the deter-15minations sought by the district attorney together with the reasons for16seeking such determinations. The court shall allow the sex offender to17appear and be heard. The state shall appear by the district attorney, or18his or her designee, who shall bear the burden of proving the facts19supporting the determinations sought by clear and convincing evidence.20Where there is a dispute between the parties concerning the determi-21nations, the court shall adjourn the hearing as necessary to permit the22sex offender or the district attorney to obtain materials relevant toEXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD09866-01-9A. 5925 2 1the determinations from any state or local facility, hospital, institu-2tion, office, agency, department or division. Such materials may be3obtained by subpoena if not voluntarily provided to the requesting4party. In making the determinations, the court shall review any victim's5statement and any relevant materials and evidence submitted by the sex6offender and the district attorney and the court may consider reliable7hearsay evidence submitted by either party provided that it is relevant8to the determinations. Facts previously proven at trial or elicited at9the time of entry of a plea of guilty shall be deemed established by10clear and convincing evidence and shall not be relitigated. The court11shall render an order setting forth its determinations and the findings12of fact and conclusions of law on which the determinations are based. A13copy of the order shall be submitted by the court to the division. Upon14application of either party, the court shall seal any portion of the15court file or record which contains material that is confidential under16any state or federal statute. Either party may appeal as of right from17the order pursuant to the provisions of articles fifty-five, fifty-six18and fifty-seven of the civil practice law and rules. Where counsel has19been assigned to represent the sex offender upon the ground that the sex20offender is financially unable to retain counsel, that assignment shall21be continued throughout the pendency of the appeal, and the person may22appeal as a poor person pursuant to article eighteen-B of the county23law] the board shall make a level of notification recommendation to the 24 court in accordance with section one hundred sixty-eight-l of this arti- 25 cle. Final level of notification determinations by the court shall be 26 made after a classification hearing where in making the determination, 27 the court shall include a review of any victim's statement and any mate- 28 rials submitted by the sex offender. The court shall provide that the 29 offender receive fair written notice of the classification hearing which 30 shall include a statement of the proceeding's purpose, the board's 31 recommendation and ramifications of classification level, and a state- 32 ment of the offender's right to be represented by counsel at the hear- 33 ing. The offender shall have the right to have counsel appointed and for 34 pre-hearing discovery of documentary evidence on which the board's level 35 of notification recommendation was determined. The state must prove the 36 facts supporting any classification determination. The offender shall 37 have the right to appeal a level of notification determination. 38 § 2. Subdivisions 1, 2 and 3 of section 168-g of the correction law, 39 as amended by section 18 of subpart B of part C of chapter 62 of the 40 laws of 2011, are amended to read as follows: 41 1. [The department or office of probation and correctional alterna-42tives in accordance with risk factors pursuant to section one hundred43sixty-eight-l of this article shall determine the duration of registra-44tion and notification for every sex offender who on the effective date45of this article is then on community supervision or probation for an46offense provided for in subdivision two or three of section one hundred47sixty-eight-a of this article] For sex offenders under this section, the 48 board shall make a level of notification recommendation to the court in 49 accordance with section one hundred sixty-eight-l of this article. Final 50 level of notification determinations by the court shall be made after a 51 classification hearing where in making the determination, the court 52 shall include a review of any victim's statement and any materials 53 submitted by the sex offender. The court shall provide that the offen- 54 der receive fair written notice of the classification hearing which 55 shall include a statement of the proceeding's purpose, the board's 56 recommendation and ramifications of classification level, and a state-A. 5925 3 1 ment of the offender's right to be represented by counsel at the hear- 2 ing. The offender shall have the right to have counsel appointed and for 3 pre-hearing discovery of documentary evidence on which the board's level 4 of notification recommendation was determined. The state must prove the 5 facts supporting any classification determination. The offender shall 6 have a right to appeal a level of notification determination. 7 2. Every sex offender who on the effective date of this article is 8 then on community supervision or probation for an offense provided for 9 in subdivision two or three of section one hundred sixty-eight-a of this 10 article shall within ten calendar days of [such determination] receipt 11 of hearing notification register with his parole or probation officer. 12 On each anniversary of the sex offender's initial registration date 13 thereafter, the provisions of section one hundred sixty-eight-f of this 14 article shall apply. Any sex offender who fails or refuses to so comply 15 shall be subject to the same penalties as otherwise provided for in this 16 article which would be imposed upon a sex offender who fails or refuses 17 to so comply with the provisions of this article on or after such effec- 18 tive date. 19 3. [It] Upon final court level of notification determination it shall 20 be the duty of the [parole or probation officer] court to inform and 21 register such sex offender according to the requirements imposed by this 22 article. [A parole or probation officer] The court shall give one copy 23 of the form to the sex offender and shall, within three calendar days, 24 send two copies electronically or otherwise to the department which 25 shall forward one copy electronically or otherwise to the law enforce- 26 ment agency having jurisdiction where the sex offender resides upon his 27 or her community supervision, probation, or local conditional release. 28 § 3. Subdivision 2 of section 168-k of the correction law is REPEALED 29 and two new subdivisions 2 and 2-a are added to read as follows: 30 2. For sex offenders under this section, the board shall make a level 31 of notification recommendation to the court in accordance with section 32 one hundred sixty-eight-l of this article. Final level of notification 33 determinations by the court shall be made after a classification hearing 34 where in making the determination, the court shall include a review of 35 any victim's statement and any materials submitted by the sex offender. 36 The court shall provide that the offender receive fair written notice of 37 the classification hearing which shall include a statement of the 38 proceeding's purpose, the board's recommendation and ramifications of 39 classification level, and a statement of the offender's right to be 40 represented by counsel at the hearing. The offender shall have the right 41 to have counsel appointed and for pre-hearing discovery of documentary 42 evidence on which the board's level of notification recommendation was 43 determined. The state must prove the facts supporting any classification 44 determination. The offender shall have a right to appeal a level of 45 notification determination. 46 2-a. Upon final court level of notification determination, it shall be 47 the duty of the court to inform and register such sex offender according 48 to the requirements imposed by this article. The court shall give one 49 copy of the form to the sex offender and shall, within three calendar 50 days, send two copies electronically or otherwise to the division which 51 shall forward one copy electronically or otherwise to the law enforce- 52 ment agency having jurisdiction where the sex offender resides upon his 53 parole, probation, or upon any form of state or local conditional 54 release.A. 5925 4 1 § 4. The opening paragraph of subdivision 6 of section 168-l of the 2 correction law, as amended by chapter 11 of the laws of 2002, is amended 3 to read as follows: 4 Applying these guidelines, the board shall make a recommendation, for 5 offenders who on the effective date of this article were then incarcer- 6 ated, on probation or parole for an offense provided for in subdivision 7 two or three of section one hundred sixty-eight-a of this article, which 8 shall be confidential and shall not be available for public inspection, 9 except for sex offender prehearing discovery, to the sentencing court as 10 to whether such sex offender warrants the designation of sexual preda- 11 tor, sexually violent predator or predicate sex offender. Applying these 12 same guidelines, the board shall within [sixty] ninety calendar days 13 prior to the discharge, parole, release to post-release supervision or 14 release of a sex offender make a recommendation which shall be confiden- 15 tial and shall not be available for public inspection, except for sex 16 offender prehearing discovery, to the sentencing court as to whether 17 such sex offender warrants the designation of sexual predator, sexually 18 violent offender, or predicate sex offender as defined in subdivision 19 seven of section one hundred sixty-eight-a of this article. In addition, 20 the guidelines shall be applied by the board to make a recommendation to 21 the sentencing court which shall be confidential and shall not be avail- 22 able for public inspection, providing for one of the following three 23 levels of notification depending upon the degree of the risk of re-of- 24 fense by the sex offender. 25 § 5. Section 168-n of the correction law, as added by chapter 192 of 26 the laws of 1995, subdivision 1 as amended by chapter 11 of the laws of 27 2002, subdivisions 2 and 5 as amended by chapter 453 of the laws of 28 1999, and subdivision 3 as amended and subdivision 6 as added by chapter 29 684 of the laws of 2005, is amended to read as follows: 30 § 168-n. Judicial determination. 1. [A determination that an offender31is a sexual predator, sexually violent offender, or predicate sex offen-32der as defined in subdivision seven of section one hundred sixty-eight-a33of this article shall be made prior to the discharge, parole, release to34post-release supervision or release of such offender by the sentencing35court applying the guidelines established in subdivision five of section36one hundred sixty-eight-l of this article after receiving a recommenda-37tion from the board pursuant to section one hundred sixty-eight-l of38this article.392. In addition, applying the guidelines established in subdivision40five of section one hundred sixty-eight-l of this article, the sentenc-41ing court shall also make a determination with respect to the level of42notification, after receiving a recommendation from the board pursuant43to section one hundred sixty-eight-l of this article. Both determi-44nations of the sentencing court shall be made thirty calendar days prior45to discharge, parole or release.463. No later than thirty days prior to the board's recommendation, the47sex offender shall be notified that his or her case is under review and48that he or she is permitted to submit to the board any information rele-49vant to the review. Upon receipt of the board's recommendation, the50sentencing court shall determine whether the sex offender was previously51found to be eligible for assigned counsel in the underlying case. Where52such a finding was previously made, the court shall assign counsel to53represent the offender, pursuant to article eighteen-B of the county54law. At least twenty days prior to the determination proceeding, the55sentencing court shall notify the district attorney, the sex offender56and the sex offender's counsel, in writing, of the date of the determi-A. 5925 5 1nation proceeding and shall also provide the district attorney, the sex2offender and the sex offender's counsel with a copy of the recommenda-3tion received from the board and any statement of the reasons for the4recommendation received from the board. This notice shall include the5following statement or a substantially similar statement: "This6proceeding is being held to determine whether you will be classified as7a level 3 offender (risk of repeat offense is high), a level 2 offender8(risk of repeat offense is moderate), or a level 1 offender (risk of9repeat offense is low), or whether you will be designated as a sexual10predator, a sexually violent offender or a predicate sex offender, which11will determine how long you must register as a sex offender and how much12information can be provided to the public concerning your registration.13If you fail to appear at this proceeding, without sufficient excuse, it14shall be held in your absence. Failure to appear may result in a longer15period of registration or a higher level of community notification16because you are not present to offer evidence or contest evidence17offered by the district attorney." The written notice to the sex offen-18der shall also advise the offender that he or she has a right to a hear-19ing prior to the court's determination, and that he or she has the right20to be represented by counsel at the hearing. If counsel has been21assigned to represent the offender at the determination proceeding, the22notice shall also provide the name, address and telephone number of the23assigned counsel. Where counsel has not been assigned, the notice shall24advise the sex offender that counsel will be appointed if he or she is25financially unable to retain counsel, and a returnable form shall be26enclosed in the court's notice to the sex offender on which the sex27offender may apply for assignment of counsel. If the sex offender28applies for assignment of counsel and the court finds that the offender29is financially unable to retain counsel, the court shall assign counsel30to represent the sex offender pursuant to article eighteen-B of the31county law. If the district attorney seeks a determination that differs32from the recommendation submitted by the board, at least ten days prior33to the determination proceeding the district attorney shall provide to34the court and the sex offender a statement setting forth the determi-35nations sought by the district attorney together with the reasons for36seeking such determinations. The court shall allow the sex offender to37appear and be heard. The state shall appear by the district attorney, or38his or her designee, who shall bear the burden of proving the facts39supporting the determinations sought by clear and convincing evidence.40Where there is a dispute between the parties concerning the determi-41nations, the court shall adjourn the hearing as necessary to permit the42sex offender or the district attorney to obtain materials relevant to43the determinations from the state board of examiners of sex offenders or44any state or local facility, hospital, institution, office, agency,45department or division. Such materials may be obtained by subpoena if46not voluntarily provided to the requesting party. In making the determi-47nations the court shall review any victim's statement and any relevant48materials and evidence submitted by the sex offender and the district49attorney and the recommendation and any materials submitted by the50board, and may consider reliable hearsay evidence submitted by either51party, provided that it is relevant to the determinations. Facts previ-52ously proven at trial or elicited at the time of entry of a plea of53guilty shall be deemed established by clear and convincing evidence and54shall not be relitigated. The court shall render an order setting forth55its determinations and the findings of fact and conclusions of law on56which the determinations are based. A copy of the order shall be submit-A. 5925 6 1ted by the court to the division. Upon application of either party, the2court shall seal any portion of the court file or record which contains3material that is confidential under any state or federal statute. Either4party may appeal as of right from the order pursuant to the provisions5of articles fifty-five, fifty-six and fifty-seven of the civil practice6law and rules. Where counsel has been assigned to represent the sex7offender upon the ground that the sex offender is financially unable to8retain counsel, that assignment shall be continued throughout the9pendency of the appeal, and the person may appeal as a poor person10pursuant to article eighteen-B of the county law] The board shall make a 11 recommendation to the court as to whether an offender is a sex offender, 12 a sexual predator, a sexually violent predator or a predicate sex offen- 13 der pursuant to section one hundred sixty-eight-l of this article. The 14 board shall make a level of notification recommendation to the court in 15 accordance with section one hundred sixty-eight-l of this article. Final 16 level of notification determinations by the court shall be made prior to 17 the offender's discharge, parole or release and after a classification 18 hearing where in making the determination, the court shall include a 19 review of any victim's statement and any materials submitted by the sex 20 offender. The court shall provide that the offender receive fair written 21 notice of the classification hearing which shall include a statement of 22 the proceeding's purpose, the board's recommendation and ramifications 23 of classification level, and a statement of the offender's right to be 24 represented by counsel at the hearing. The offender shall have the right 25 to have counsel appointed and for pre-hearing discovery of documentary 26 evidence on which the board's level of notification recommendation was 27 determined. The state must prove the facts supporting any classification 28 determination. The offender shall have a right to appeal a level of 29 notification determination. 30 [4.] 2. Upon determination that the risk of repeat offense and threat 31 to public safety is high, the sentencing court shall also notify the 32 division of such fact for the purposes of section one hundred sixty- 33 eight-q of this article. 34 [5.] 3. Upon the reversal of a conviction of a sexual offense defined 35 in paragraphs (a) and (b) of subdivision two or three of section one 36 hundred sixty-eight-a of this article, the appellate court shall remand 37 the case to the lower court for entry of an order directing the expunge- 38 ment of any records required to be kept [herein] pursuant to this arti- 39 cle. 40 [6.] 4. If a sex offender, having been given notice, including the 41 time and place of the determination proceeding in accordance with this 42 section, fails to appear at this proceeding, without sufficient excuse, 43 the court shall conduct the hearing and make the determinations in the 44 manner set forth in subdivision [three] one of this section. 45 § 6. This act shall take effect immediately.