Bill Text: NY A07878 | 2015-2016 | General Assembly | Introduced
Bill Title: Relates to sex offender residency restrictions and provides for the repeal of certain provisions relating thereto.
Spectrum: Partisan Bill (Democrat 3-0)
Status: (Introduced - Dead) 2016-01-06 - referred to correction [A07878 Detail]
Download: New_York-2015-A07878-Introduced.html
S T A T E O F N E W Y O R K
________________________________________________________________________
7878
2015-2016 Regular Sessions
I N A S S E M B L Y
May 28, 2015
___________
Introduced by M. of A. O'DONNELL -- read once and referred to the
Committee on Correction
AN ACT to amend the correction law and the mental hygiene law, in
relation to sex offender residency restrictions; and to repeal certain
provisions of the penal law and the executive law relating thereto
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. Paragraph (f) of subdivision 1 of section 168-b of the
2 correction law, as relettered by chapter 10 of the laws of 2003, is
3 relettered paragraph (g) and a new paragraph (f) is added to read as
4 follows:
5 (F) WHETHER THE SEX OFFENDER IS SUBJECT TO A RESIDENCY RESTRICTION
6 PURSUANT TO SECTION ONE HUNDRED SIXTY-EIGHT-N OF THIS ARTICLE.
7 S 2. Section 168-b of the correction law is amended by adding a new
8 subdivision 13 to read as follows:
9 13. THE DIVISION, UPON INITIAL REGISTRATION AND THEREAFTER IN ANNUAL
10 CORRESPONDENCE AS REQUIRED BY SUBDIVISION FOUR OF THIS SECTION, SHALL
11 ADVISE EACH SEX OFFENDER WHO IS SUBJECT TO A RESIDENCY RESTRICTION
12 PURSUANT TO SECTION ONE HUNDRED SIXTY-EIGHT-N OF THIS ARTICLE, CONCERN-
13 ING THE TERM'S SPECIFIC DURATION AND THE ACCURATE TERMINATION DATE OF
14 SUCH RESTRICTION.
15 S 3. Subdivision 2 of section 168-d of the correction law, as amended
16 by chapter 684 of the laws of 2005, is amended to read as follows:
17 2. Any sex offender, who is released on probation or discharged upon
18 payment of a fine, conditional discharge or unconditional discharge
19 shall, prior to such release or discharge, be informed of his or her
20 duty to register under this article by the court in which he or she was
21 convicted. At the time sentence is imposed, such sex offender shall
22 register with the division on a form prepared by the division. The court
23 shall require the sex offender to read and sign such form and to
24 complete the registration portion of such form. The court shall on such
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD11387-01-5
A. 7878 2
1 form obtain the address where the sex offender expects to reside upon
2 his or her release, and the name and address of any institution of high-
3 er education he or she expects to be employed by, enrolled in, attending
4 or employed, whether for compensation or not, and whether he or she
5 expects to reside in a facility owned or operated by such an institu-
6 tion, and shall report such information to the division. The court shall
7 give one copy of the form to the sex offender and shall send two copies
8 to the division which shall forward the information to the law enforce-
9 ment agencies having jurisdiction. The court shall also notify the
10 district attorney and the sex offender of the date of the determination
11 proceeding to be held pursuant to subdivision three of this section,
12 which shall be held at least forty-five days after such notice is given.
13 This notice shall include the following statement or a substantially
14 similar statement: "This proceeding is being held to determine whether
15 you will be classified as a level 3 offender (risk of repeat offense is
16 high), a level 2 offender (risk of repeat offense is moderate), or a
17 level 1 offender (risk of repeat offense is low), or whether you will be
18 designated as a sexual predator, a sexually violent offender or a predi-
19 cate sex offender, which will determine how long you must register as a
20 sex offender and how much information can be provided to the public
21 concerning your registration. THE COURT MAY ALSO DETERMINE WHETHER YOU
22 WILL BE SUBJECT TO A RESIDENCY RESTRICTION WHICH MAY RESTRICT WHERE YOU
23 CAN ESTABLISH YOUR PERMANENT RESIDENCE. If you fail to appear at this
24 proceeding, without sufficient excuse, it shall be held in your absence.
25 Failure to appear may result in a longer period of registration or a
26 higher level of community notification because you are not present to
27 offer evidence or contest evidence offered by the district attorney."
28 The court shall also advise the sex offender that he or she has a right
29 to a hearing prior to the court's determination, that he or she has the
30 right to be represented by counsel at the hearing and that counsel will
31 be appointed if he or she is financially unable to retain counsel. If
32 the sex offender applies for assignment of counsel to represent him or
33 her at the hearing and counsel was not previously assigned to represent
34 the sex offender in the underlying criminal action, the court shall
35 determine whether the offender is financially unable to retain counsel.
36 If such a finding is made, the court shall assign counsel to represent
37 the sex offender pursuant to article eighteen-B of the county law. Where
38 the court orders a sex offender released on probation, such order must
39 include a provision requiring that he or she comply with the require-
40 ments of this article. Where such sex offender violates such provision,
41 probation may be immediately revoked in the manner provided by article
42 four hundred ten of the criminal procedure law.
43 S 4. Subdivision 3 of section 168-d of the correction law, as amended
44 by chapter 11 of the laws of 2002, is amended to read as follows:
45 3. For sex offenders released on probation or discharged upon payment
46 of a fine, conditional discharge or unconditional discharge, it shall be
47 the duty of the court applying the guidelines established in subdivision
48 five of section one hundred sixty-eight-l of this article to determine
49 the level of notification pursuant to subdivision six of section one
50 hundred sixty-eight-l of this article and whether such sex offender
51 shall be designated a sexual predator, sexually violent offender, or
52 predicate sex offender as defined in subdivision seven of section one
53 hundred sixty-eight-a of this article. IF THE SEX OFFENDER HAS A VICTIM
54 UNDER EIGHTEEN YEARS OF AGE, THE COURT MAY ORDER AN EVALUATION BY THE
55 COMMISSIONER OF THE OFFICE OF MENTAL HEALTH PURSUANT TO SECTION 10.05 OF
56 THE MENTAL HYGIENE LAW FOR THE PURPOSE OF OBTAINING A RECOMMENDATION AS
A. 7878 3
1 TO WHETHER OR NOT THE SEX OFFENDER SHOULD BE SUBJECT TO A RESIDENCY
2 RESTRICTION PURSUANT TO SECTION ONE HUNDRED SIXTY-EIGHT-N OF THIS ARTI-
3 CLE. TO THE EXTENT POSSIBLE, THE COURT SHALL PROVIDE THE COMMISSIONER OF
4 THE OFFICE OF MENTAL HEALTH WITH SUPPORTING DOCUMENTATION AND OTHER
5 RELEVANT INFORMATION. IF THE CASE REVIEW TEAM PURSUANT TO SECTION 10.05
6 OF THE MENTAL HYGIENE LAW RECOMMENDS THAT A RESIDENCY RESTRICTION SHOULD
7 BE IMPOSED THEN THE COURT SHALL CONDUCT A HEARING PURSUANT TO SUBDIVI-
8 SION TWO OF SECTION ONE HUNDRED SIXTY-EIGHT-N OF THIS ARTICLE TO DETER-
9 MINE WHETHER SUCH A RESTRICTION IS NECESSARY AND, WHEN NECESSARY, ORDER
10 SUCH A RESTRICTION. At least fifteen days prior to the determination
11 proceeding, the district attorney shall provide to the court and the sex
12 offender a written statement setting forth the determinations sought by
13 the district attorney together with the reasons for seeking such deter-
14 minations. The court shall allow the sex offender to appear and be
15 heard. The state shall appear by the district attorney, or his or her
16 designee, who shall bear the burden of proving the facts supporting the
17 determinations sought by clear and convincing evidence. Where there is
18 a dispute between the parties concerning the determinations, the court
19 shall adjourn the hearing as necessary to permit the sex offender or the
20 district attorney to obtain materials relevant to the determinations
21 from any state or local facility, hospital, institution, office, agency,
22 department or division. Such materials may be obtained by subpoena if
23 not voluntarily provided to the requesting party. In making the determi-
24 nations, the court shall review any victim's statement and any relevant
25 materials and evidence submitted by the sex offender and the district
26 attorney and the court may consider reliable hearsay evidence submitted
27 by either party provided that it is relevant to the determinations.
28 Facts previously proven at trial or elicited at the time of entry of a
29 plea of guilty shall be deemed established by clear and convincing
30 evidence and shall not be relitigated. The court shall render an order
31 setting forth its determinations and the findings of fact and conclu-
32 sions of law on which the determinations are based. A copy of the order
33 shall be submitted by the court to the division. Upon application of
34 either party, the court shall seal any portion of the court file or
35 record which contains material that is confidential under any state or
36 federal statute. Either party may appeal as of right from the order
37 pursuant to the provisions of articles fifty-five, fifty-six and fifty-
38 seven of the civil practice law and rules. Where counsel has been
39 assigned to represent the sex offender upon the ground that the sex
40 offender is financially unable to retain counsel, that assignment shall
41 be continued throughout the pendency of the appeal, and the person may
42 appeal as a poor person pursuant to article eighteen-B of the county
43 law.
44 S 5. Subdivision 2 of section 168-k of the correction law, as amended
45 by chapter 684 of the laws of 2005, is amended to read as follows:
46 2. The division shall advise the board that the sex offender has
47 established residence in this state. The board shall determine whether
48 the sex offender is required to register with the division. If it is
49 determined that the sex offender is required to register, the division
50 shall notify the sex offender of his or her duty to register under this
51 article and shall require the sex offender to sign a form as may be
52 required by the division acknowledging that the duty to register and the
53 procedure for registration has been explained to the sex offender. The
54 division shall obtain on such form the address where the sex offender
55 expects to reside within the state and the sex offender shall retain one
56 copy of the form and send two copies to the division which shall provide
A. 7878 4
1 the information to the law enforcement agency having jurisdiction where
2 the sex offender expects to reside within this state. No later than
3 thirty days prior to the board making a recommendation, the sex offender
4 shall be notified that his or her case is under review and that he or
5 she is permitted to submit to the board any information relevant to the
6 review. After reviewing any information obtained, and applying the
7 guidelines established in subdivision five of section one hundred
8 sixty-eight-l of this article, the board shall within sixty calendar
9 days make a recommendation regarding the level of notification pursuant
10 to subdivision six of section one hundred sixty-eight-l of this article
11 and whether such sex offender shall be designated a sexual predator,
12 sexually violent offender, or predicate sex offender as defined in
13 subdivision seven of section one hundred sixty-eight-a of this article.
14 This recommendation shall be confidential and shall not be available for
15 public inspection. It shall be submitted by the board to the county
16 court or supreme court and to the district attorney in the county of
17 residence of the sex offender and to the sex offender. It shall be the
18 duty of the county court or supreme court in the county of residence of
19 the sex offender, applying the guidelines established in subdivision
20 five of section one hundred sixty-eight-l of this article, to determine
21 the level of notification pursuant to subdivision six of section one
22 hundred sixty-eight-l of this article and whether such sex offender
23 shall be designated a sexual predator, sexually violent offender, or
24 predicate sex offender as defined in subdivision seven of section one
25 hundred sixty-eight-a of this article. IF THE SEX OFFENDER HAS A VICTIM
26 UNDER EIGHTEEN YEARS OF AGE, THE COURT MAY ORDER AN EVALUATION BY THE
27 COMMISSIONER OF THE OFFICE OF MENTAL HEALTH PURSUANT TO SECTION 10.05 OF
28 THE MENTAL HYGIENE LAW FOR THE PURPOSE OF OBTAINING A RECOMMENDATION AS
29 TO WHETHER OR NOT THE SEX OFFENDER SHOULD BE SUBJECT TO A RESIDENCY
30 RESTRICTION PURSUANT TO SECTION ONE HUNDRED SIXTY-EIGHT-N OF THIS ARTI-
31 CLE. TO THE EXTENT POSSIBLE, THE COURT SHALL PROVIDE THE COMMISSIONER OF
32 THE OFFICE OF MENTAL HEALTH WITH SUPPORTING DOCUMENTATION AND OTHER
33 RELEVANT INFORMATION. IF THE CASE REVIEW TEAM PURSUANT TO SECTION 10.05
34 OF THE MENTAL HYGIENE LAW RECOMMENDS THAT A RESIDENCY RESTRICTION SHOULD
35 BE IMPOSED THEN THE COURT SHALL CONDUCT A HEARING PURSUANT TO SUBDIVI-
36 SION TWO OF SECTION ONE HUNDRED SIXTY-EIGHT-N OF THIS ARTICLE TO DETER-
37 MINE WHETHER SUCH A RESTRICTION IS NECESSARY AND, WHEN NECESSARY, ORDER
38 SUCH A RESTRICTION. At least thirty days prior to the determination
39 proceeding, such court shall notify the district attorney and the sex
40 offender, in writing, of the date of the determination proceeding and
41 the court shall also provide the district attorney and sex offender with
42 a copy of the recommendation received from the board and any statement
43 of the reasons for the recommendation received from the board. This
44 notice shall include the following statement or a substantially similar
45 statement: "This proceeding is being held to determine whether you will
46 be classified as a level 3 offender (risk of repeat offense is high), a
47 level 2 offender (risk of repeat offense is moderate), or a level 1
48 offender (risk of repeat offense is low), or whether you will be desig-
49 nated as a sexual predator, a sexually violent offender or a predicate
50 sex offender, which will determine how long you must register as a sex
51 offender and how much information can be provided to the public concern-
52 ing your registration. THE COURT MAY ALSO DETERMINE WHETHER YOU WILL BE
53 SUBJECT TO A RESIDENCY RESTRICTION WHICH MAY RESTRICT WHERE YOU CAN
54 ESTABLISH YOUR PERMANENT RESIDENCE. If you fail to appear at this
55 proceeding, without sufficient excuse, it shall be held in your absence.
56 Failure to appear may result in a longer period of registration or a
A. 7878 5
1 higher level of community notification because you are not present to
2 offer evidence or contest evidence offered by the district attorney."
3 The court shall also advise the sex offender that he or she has a right
4 to a hearing prior to the court's determination, that he or she has the
5 right to be represented by counsel at the hearing and that counsel will
6 be appointed if he or she is financially unable to retain counsel. A
7 returnable form shall be enclosed in the court's notice to the sex
8 offender on which the sex offender may apply for assignment of counsel.
9 If the sex offender applies for assignment of counsel and the court
10 finds that the offender is financially unable to retain counsel, the
11 court shall assign counsel to represent the sex offender pursuant to
12 article eighteen-B of the county law. If the district attorney seeks a
13 determination that differs from the recommendation submitted by the
14 board, at least ten days prior to the determination proceeding the
15 district attorney shall provide to the court and the sex offender a
16 statement setting forth the determinations sought by the district attor-
17 ney together with the reasons for seeking such determinations. The court
18 shall allow the sex offender to appear and be heard. The state shall
19 appear by the district attorney, or his or her designee, who shall bear
20 the burden of proving the facts supporting the determinations sought by
21 clear and convincing evidence. It shall be the duty of the court apply-
22 ing the guidelines established in subdivision five of section one
23 hundred sixty-eight-l of this article to determine the level of notifi-
24 cation pursuant to subdivision six of section one hundred sixty-eight-l
25 of this article [and], whether such sex offender shall be designated a
26 sexual predator, sexually violent offender, or predicate sex offender as
27 defined in subdivision seven of section one hundred sixty-eight-a of
28 this article AND WHETHER SUCH SEX OFFENDER WILL BE SUBJECT TO A RESIDEN-
29 CY RESTRICTION PURSUANT TO SECTION ONE HUNDRED SIXTY-EIGHT-N OF THIS
30 ARTICLE. Where there is a dispute between the parties concerning the
31 determinations, the court shall adjourn the hearing as necessary to
32 permit the sex offender or the district attorney to obtain materials
33 relevant to the determinations from the state board of examiners of sex
34 offenders or any state or local facility, hospital, institution, office,
35 agency, department or division. Such materials may be obtained by
36 subpoena if not voluntarily provided to the requesting party. In making
37 the determinations the court shall review any victim's statement and any
38 relevant materials and evidence submitted by the sex offender and the
39 district attorney and the recommendation and any material submitted by
40 the board, and may consider reliable hearsay evidence submitted by
41 either party, provided that it is relevant to the determinations. If
42 available, facts proven at trial or elicited at the time of a plea of
43 guilty shall be deemed established by clear and convincing evidence and
44 shall not be relitigated. The court shall render an order setting forth
45 its determinations and the findings of fact and conclusions of law on
46 which the determinations are based. A copy of the order shall be submit-
47 ted by the court to the division. Upon application of either party, the
48 court shall seal any portion of the court file or record which contains
49 material that is confidential under any state or federal statute. Either
50 party may appeal as of right from the order pursuant to the provisions
51 of articles fifty-five, fifty-six and fifty-seven of the civil practice
52 law and rules. Where counsel has been assigned to represent the sex
53 offender upon the ground that the sex offender is financially unable to
54 retain counsel, that assignment shall be continued throughout the
55 pendency of the appeal, and the person may appeal as a poor person
56 pursuant to article eighteen-B of the county law.
A. 7878 6
1 S 6. Subdivision 7 of section 168-l of the correction law, as amended
2 by chapter 11 of the laws of 2002, is amended to read as follows:
3 7. Upon request by the court, pursuant to section one hundred sixty-
4 eight-o of this article, the board shall provide an updated report
5 pertaining to the sex offender petitioning for relief of the duty to
6 register or for a modification of his or her level of notification OR
7 FOR MODIFICATION OR TERMINATION OF A RESIDENCY RESTRICTION IMPOSED BY
8 THE SENTENCING COURT.
9 S 7. Subdivisions 2 and 3 of section 168-n of the correction law,
10 subdivision 2 as amended by of chapter 453 of the laws of 1999 and
11 subdivision 3 as amended by chapter 684 of the laws of 2005, are amended
12 and a new subdivision 2-a is added to read as follows:
13 2. In addition, applying the guidelines established in subdivision
14 five of section one hundred sixty-eight-l of this article, the sentenc-
15 ing court shall also make a determination with respect to the level of
16 notification, after receiving a recommendation from the board pursuant
17 to section one hundred sixty-eight-l of this article. [Both] WHEN THE
18 COURT RECEIVES A RECOMMENDATION THAT A RESIDENCY RESTRICTION BE CONSID-
19 ERED PURSUANT TO SECTION 10.05 OF THE MENTAL HYGIENE LAW THE COURT SHALL
20 CONDUCT A HEARING TO DETERMINE IF THE SEX OFFENDER SHALL BE SUBJECT TO A
21 RESIDENCY RESTRICTION PROHIBITING SUCH OFFENDER FROM KNOWINGLY ESTAB-
22 LISHING A PERMANENT RESIDENCE WITHIN UP TO ONE THOUSAND FEET OF ANY
23 SCHOOL GROUNDS AS THAT TERM IS DEFINED IN PARAGRAPH (A) OF SUBDIVISION
24 FOURTEEN OF SECTION 220.00 OF THE PENAL LAW OR THE GROUNDS OF A CHILD
25 DAY CARE CENTER AS DEFINED IN SUBDIVISION FIVE OF SECTION 220.44 OF THE
26 PENAL LAW FOR A PERIOD OF UP TO TEN YEARS. IN DETERMINING THAT A RESI-
27 DENCY RESTRICTION IS NECESSARY THE COURT SHALL CONSIDER THE FOLLOWING:
28 (A) WHETHER A RESIDENCY RESTRICTION WOULD ADVERSELY IMPACT THE
29 OFFENDER'S SUCCESSFUL REENTRY AND REINTEGRATION INTO SOCIETY;
30 (B) WHETHER A RESIDENCY RESTRICTION IS NECESSARY, BASED ON THE
31 OFFENDER'S CURRENT BEHAVIOR AND PRESENT AND PROSPECTIVE LIVING ARRANGE-
32 MENTS, TO PROTECT PUBLIC SAFETY;
33 (C) THE PRESENCE OF FAMILY MEMBERS AT THE RESIDENCE WHERE THE OFFENDER
34 MAY PROPOSE TO ESTABLISH PERMANENT RESIDENCY, AS WELL AS TIES TO THAT
35 COMMUNITY THAT MAY BE BENEFICIAL TO REHABILITATION;
36 (D) THE ABILITY OF THE OFFENDER TO OBTAIN PERMANENT, AFFORDABLE AND
37 STABLE HOUSING IN ORDER TO REDUCE THE LIKELIHOOD THAT THE OFFENDER WILL
38 BE TRANSIENT;
39 (E) THE ACCESSIBILITY TO SUPPORTIVE AND SUPERVISORY SERVICES, AS
40 APPLICABLE, INCLUDING BUT NOT LIMITED TO LOCALLY AVAILABLE SEX OFFENDER
41 TREATMENT PROGRAMS THAT HAVE DEMONSTRATED EFFECTIVENESS IN REDUCING SEX
42 OFFENDER RECIDIVISM AND INCREASING PUBLIC SAFETY;
43 (F) THE ABILITY OF THE OFFENDER TO FIND GAINFUL AND STABLE EMPLOYMENT;
44 (G) ANY RECOMMENDATION OF THE OFFENDER'S COMMUNITY SUPERVISION OFFI-
45 CER, PROBATION OFFICER OR MENTAL HEALTH CARE PROVIDER;
46 (H) THE REPORT OF THE CASE REVIEW TEAM PURSUANT TO SECTION 10.05 OF
47 THE MENTAL HYGIENE LAW; AND
48 (I) ANY OTHER RELEVANT FACTOR AND RELATED INFORMATION.
49 THE determinations of the sentencing court shall be made thirty calen-
50 dar days prior to discharge, parole or release.
51 2-A. (A) WHEN THE COURT DETERMINES THAT A RESIDENCY RESTRICTION IS
52 NECESSARY PURSUANT TO THE PROVISIONS OF THIS SECTION, THE COURT MAY
53 ORDER THAT THE SEX OFFENDER BE PROHIBITED FROM KNOWINGLY ESTABLISHING
54 HIS OR HER PERMANENT RESIDENCE WITHIN UP TO ONE THOUSAND FEET OF ANY
55 SCHOOL GROUNDS, AS THAT TERM IS DEFINED IN PARAGRAPH (A) OF SUBDIVISION
56 FOURTEEN OF SECTION 220.00 OF THE PENAL LAW, OR THE GROUNDS OF A CHILD
A. 7878 7
1 DAY CARE CENTER AS DEFINED IN SUBDIVISION FIVE OF SECTION 220.44 OF THE
2 PENAL LAW. FOR THE PURPOSES OF THIS SUBDIVISION, THE TERM PERMANENT
3 RESIDENCE SHALL MEAN THE PLACE WHERE THE OFFENDER MAINTAINS A FIXED,
4 PERMANENT HOME AND TO WHICH HE OR SHE, WHENEVER TEMPORARILY AWAY,
5 INTENDS TO RETURN. THE SEX OFFENDER MAY HAVE MORE THAN ONE PERMANENT
6 RESIDENCE FOR THE PURPOSES OF THIS SUBDIVISION. PERMANENT RESIDENCE
7 SHALL NOT INCLUDE TEMPORARY OR TRANSITIONAL HOUSING.
8 (B) THE COURT SHALL DETERMINE THE DURATION OF THE RESIDENCY
9 RESTRICTION IMPOSED PURSUANT TO THIS SECTION PROVIDED, HOWEVER, THAT
10 SUCH RESTRICTION SHALL NOT APPLY FOR MORE THAN TEN YEARS AFTER THE LATER
11 OF THE OFFENDER'S RELEASE FROM JAIL OR PRISON FOR A SEX OFFENSE OR THE
12 PERIOD OR TERM OF PROBATION, PAROLE, CONDITIONAL RELEASE OR POST-RELEASE
13 SUPERVISION FOR THE OFFENSE WHICH REQUIRES THE OFFENDER TO REGISTER AS A
14 SEX OFFENDER PURSUANT TO THIS ARTICLE. IN CALCULATING THE DURATION OF
15 THE RESIDENCY RESTRICTION, ANY PERIOD OF TIME DURING WHICH THE OFFENDER
16 IS INCARCERATED FOR ANY REASON AFTER SUCH RESIDENCY RESTRICTION IS
17 ORDERED SHALL BE EXCLUDED AND THE DURATION OF THE RESTRICTION SHALL BE
18 EXTENDED BY A PERIOD OR PERIODS EQUAL TO THE TIME OF SUCH INCARCERATION.
19 (C) WHERE THE COURT HAS GRANTED A PETITION TO EXTEND THE DURATION OF A
20 RESIDENCY RESTRICTION PURSUANT TO SUBDIVISIONS THREE-A AND FOUR OF
21 SECTION ONE HUNDRED SIXTY-EIGHT-O OF THIS ARTICLE, SUCH EXTENSION MAY BE
22 FOR A PERIOD OF UP TO FIVE YEARS.
23 3. No later than thirty days prior to the board's recommendation, the
24 sex offender shall be notified that his or her case is under review and
25 that he or she is permitted to submit to the board any information rele-
26 vant to the review. Upon receipt of the board's recommendation, the
27 sentencing court shall determine whether the sex offender was previously
28 found to be eligible for assigned counsel in the underlying case. Where
29 such a finding was previously made, the court shall assign counsel to
30 represent the offender, pursuant to article eighteen-B of the county
31 law. At least twenty days prior to the determination proceeding, the
32 sentencing court shall notify the district attorney, the sex offender
33 and the sex offender's counsel, in writing, of the date of the determi-
34 nation proceeding and shall also provide the district attorney, the sex
35 offender and the sex offender's counsel with a copy of the recommenda-
36 tion received from the board and any statement of the reasons for the
37 recommendation received from the board. This notice shall include the
38 following statement or a substantially similar statement: "This
39 proceeding is being held to determine whether you will be classified as
40 a level 3 offender (risk of repeat offense is high), a level 2 offender
41 (risk of repeat offense is moderate), or a level 1 offender (risk of
42 repeat offense is low), or whether you will be designated as a sexual
43 predator, a sexually violent offender or a predicate sex offender, which
44 will determine how long you must register as a sex offender and how much
45 information can be provided to the public concerning your registration.
46 THE COURT MAY ALSO DETERMINE WHETHER YOU WILL BE SUBJECT TO A RESIDENCY
47 RESTRICTION WHICH MAY RESTRICT WHERE YOU CAN ESTABLISH YOUR PERMANENT
48 RESIDENCY. If you fail to appear at this proceeding, without sufficient
49 excuse, it shall be held in your absence. Failure to appear may result
50 in a longer period of registration or a higher level of community
51 notification because you are not present to offer evidence or contest
52 evidence offered by the district attorney." The written notice to the
53 sex offender shall also advise the offender that he or she has a right
54 to a hearing prior to the court's determination, and that he or she has
55 the right to be represented by counsel at the hearing. If counsel has
56 been assigned to represent the offender at the determination proceeding,
A. 7878 8
1 the notice shall also provide the name, address and telephone number of
2 the assigned counsel. Where counsel has not been assigned, the notice
3 shall advise the sex offender that counsel will be appointed if he or
4 she is financially unable to retain counsel, and a returnable form shall
5 be enclosed in the court's notice to the sex offender on which the sex
6 offender may apply for assignment of counsel. If the sex offender
7 applies for assignment of counsel and the court finds that the offender
8 is financially unable to retain counsel, the court shall assign counsel
9 to represent the sex offender pursuant to article eighteen-B of the
10 county law. If the district attorney seeks a determination that differs
11 from the recommendation submitted by the board, at least ten days prior
12 to the determination proceeding the district attorney shall provide to
13 the court and the sex offender a statement setting forth the determi-
14 nations sought by the district attorney together with the reasons for
15 seeking such determinations. The court shall allow the sex offender to
16 appear and be heard. The state shall appear by the district attorney, or
17 his or her designee, who shall bear the burden of proving the facts
18 supporting the determinations sought by clear and convincing evidence.
19 Where there is a dispute between the parties concerning the determi-
20 nations, the court shall adjourn the hearing as necessary to permit the
21 sex offender or the district attorney to obtain materials relevant to
22 the determinations from the state board of examiners of sex offenders or
23 any state or local facility, hospital, institution, office, agency,
24 department or division. Such materials may be obtained by subpoena if
25 not voluntarily provided to the requesting party. In making the determi-
26 nations the court shall review any victim's statement and any relevant
27 materials and evidence submitted by the sex offender and the district
28 attorney and the recommendation and any materials submitted by the
29 board, and may consider reliable hearsay evidence submitted by either
30 party, provided that it is relevant to the determinations. Facts previ-
31 ously proven at trial or elicited at the time of entry of a plea of
32 guilty shall be deemed established by clear and convincing evidence and
33 shall not be relitigated. The court shall render an order setting forth
34 its determinations and the findings of fact and conclusions of law on
35 which the determinations are based. A copy of the order shall be submit-
36 ted by the court to the division. Upon application of either party, the
37 court shall seal any portion of the court file or record which contains
38 material that is confidential under any state or federal statute. Either
39 party may appeal as of right from the order pursuant to the provisions
40 of articles fifty-five, fifty-six and fifty-seven of the civil practice
41 law and rules. Where counsel has been assigned to represent the sex
42 offender upon the ground that the sex offender is financially unable to
43 retain counsel, that assignment shall be continued throughout the
44 pendency of the appeal, and the person may appeal as a poor person
45 pursuant to article eighteen-B of the county law.
46 S 8. The section heading of section 168-o of the correction law, as
47 amended by chapter 453 of the laws of 1999, is amended and a new subdi-
48 vision 2-a is added to read as follows:
49 Petition for relief or modification OF LEVEL OF NOTIFICATION AND/OR
50 RESIDENCY RESTRICTION.
51 2-A. ANY SEX OFFENDER SUBJECT TO A RESIDENCY RESTRICTION PURSUANT TO
52 THIS ARTICLE MAY PETITION THE SENTENCING COURT OR WITH THE COURT WHICH
53 IMPOSED SUCH RESTRICTION FOR AN ORDER TERMINATING OR MODIFYING SUCH
54 RESIDENCY RESTRICTION. THE PETITION SHALL SET FORTH THE REASONS FOR
55 SEEKING SUCH MODIFICATION OR TERMINATION. THE SEX OFFENDER SHALL BEAR
56 THE BURDEN OF PROVING THE FACTS SUPPORTING THE REQUESTED MODIFICATION OR
A. 7878 9
1 TERMINATION BY CLEAR AND CONVINCING EVIDENCE. SUCH A PETITION SHALL BE
2 SERVED ON THE DISTRICT ATTORNEY OF THE COUNTY IN WHICH SUCH COURT IS
3 LOCATED AND MAY NOT BE FILED MORE THAN ANNUALLY. THE DISTRICT ATTORNEY
4 AND THE SEX OFFENDER MAY APPEAL AS OF RIGHT FROM AN ORDER ISSUED UNDER
5 THIS SUBDIVISION PURSUANT TO PROVISIONS OF ARTICLES FIFTY-FIVE,
6 FIFTY-SIX AND FIFTY-SEVEN OF THE CIVIL PRACTICE LAW AND RULES. WHERE
7 COUNSEL HAS BEEN ASSIGNED TO REPRESENT THE SEX OFFENDER UPON THE GROUND
8 THAT THE SEX OFFENDER IS FINANCIALLY UNABLE TO RETAIN COUNSEL, THAT
9 ASSIGNMENT SHALL BE CONTINUED THROUGHOUT THE PENDENCY OF ANY APPEAL, IN
10 ACCORDANCE WITH ARTICLE EIGHTEEN-B OF THE COUNTY LAW.
11 S 9. Section 168-o of the correction law is amended by adding a new
12 subdivision 3-a to read as follows:
13 3-A. PRIOR TO THE EXPIRATION OF A RESIDENCY RESTRICTION ORDERED PURSU-
14 ANT TO SECTION ONE HUNDRED SIXTY-EIGHT-N OF THIS ARTICLE, THE DISTRICT
15 ATTORNEY MAY FILE A PETITION WITH THE SENTENCING COURT OR WITH THE COURT
16 WHICH ORDERED THE RESIDENCY RESTRICTION TO EXTEND THE DURATION OF SUCH
17 RESIDENCY RESTRICTION FOR UP TO FIVE ADDITIONAL YEARS. THE DISTRICT
18 ATTORNEY SHALL BEAR THE BURDEN OF PROVING NEW FACTS AND CIRCUMSTANCES
19 THAT WARRANT THE REQUESTED EXTENSION BY CLEAR AND CONVINCING EVIDENCE.
20 IN THE EVENT THAT THE DISTRICT ATTORNEY'S PETITION IS GRANTED, THE SEX
21 OFFENDER MAY APPEAL AS OF RIGHT FROM THE ORDER PURSUANT TO THE
22 PROVISIONS OF ARTICLES FIFTY-FIVE, FIFTY-SIX AND FIFTY-SEVEN OF THE
23 CIVIL PRACTICE LAW AND RULES. WHERE COUNSEL HAS BEEN ASSIGNED TO REPRE-
24 SENT THE OFFENDER UPON THE GROUND THAT HE OR SHE IS FINANCIALLY UNABLE
25 TO RETAIN COUNSEL, THAT ASSIGNMENT SHALL BE CONTINUED THROUGHOUT THE
26 PENDENCY OF ANY APPEAL, IN ACCORDANCE WITH ARTICLE EIGHTEEN-B OF THE
27 COUNTY LAW.
28 S 10. Subdivision 4 of section 168-o of the correction law, as added
29 by chapter 453 of the laws of 1999, is amended to read as follows:
30 4. Upon receipt of a petition submitted pursuant to subdivision one,
31 two, TWO-A, [or] three, OR THREE-A of this section, the court shall
32 forward a copy of the petition to the board and request an updated
33 recommendation pertaining to the sex offender and shall provide a copy
34 of the petition to the other party. The court shall also advise the sex
35 offender that he or she has the right to be represented by counsel at
36 the hearing and counsel will be appointed if he or she is financially
37 unable to retain counsel. A returnable form shall be enclosed in the
38 court's notice to the sex offender on which the sex offender may apply
39 for assignment of counsel. If the sex offender applies for assignment
40 of counsel and the court finds that the offender is financially unable
41 to retain counsel, the court shall assign counsel to represent the
42 offender, pursuant to article eighteen-B of the county law. Where the
43 petition was filed by a district attorney, at least thirty days prior to
44 making an updated recommendation the board shall notify the sex offender
45 and his or her counsel that the offender's case is under review and he
46 or she is permitted to submit to the board any information relevant to
47 the review. The board's updated recommendation on the sex offender
48 shall be confidential and shall not be available for public inspection.
49 After receiving an updated recommendation from the board concerning a
50 sex offender, the court shall, at least thirty days prior to ruling upon
51 the petition, provide a copy of the updated recommendation to the sex
52 offender, the sex offender's counsel and the district attorney and noti-
53 fy them, in writing, of the date set by the court for a hearing on the
54 petition. After reviewing the recommendation received from the board and
55 any relevant materials and evidence submitted by the sex offender and
56 the district attorney, the court may grant or deny the petition. The
A. 7878 10
1 court may also consult with the victim prior to making a determination
2 on the petition. The court shall render an order setting forth its
3 determination, and the findings of fact and conclusions of law on which
4 the determination is based. If the petition is granted, it shall be the
5 obligation of the court to submit a copy of its order to the division.
6 Upon application of either party, the court shall seal any portion of
7 the court file or record which contains material that is confidential
8 under any state or federal statute.
9 S 11. The opening paragraph of section 168-t of the correction law is
10 designated subdivision 1 and a new subdivision 2 is added to read as
11 follows:
12 2. ANY SEX OFFENDER WHO KNOWINGLY VIOLATES A RESIDENCY RESTRICTION
13 IMPOSED UPON HIM OR HER BY THE COURT PURSUANT TO SECTION ONE HUNDRED
14 SIXTY-EIGHT-N OF THIS ARTICLE SHALL, UPON CONVICTION, BE GUILTY OF A
15 CLASS A MISDEMEANOR.
16 S 12. Subdivisions (e), (f) and (g) of section 10.05 of the mental
17 hygiene law, as added by chapter 7 of the laws of 2007, are amended to
18 read as follows:
19 (e) If the person is referred to a case review team for evaluation,
20 notice of such referral shall be provided to the respondent. Upon such
21 referral, the case review team shall review relevant records, including
22 those described in subdivisions (c) and (d) of this section, and may
23 arrange for a psychiatric examination of the respondent. Based on the
24 review and assessment of such information, the case review team shall
25 consider whether the respondent is a sex offender requiring civil
26 management OR, AS APPLICABLE, WHETHER A RESPONDENT OR AN INDIVIDUAL
27 REFERRED BY A COURT PURSUANT TO SUBDIVISION THREE OF SECTION ONE HUNDRED
28 SIXTY-EIGHT-D OR SUBDIVISION TWO OF SECTION ONE HUNDRED SIXTY-EIGHT-K OF
29 THE CORRECTION LAW SHOULD BE CONSIDERED FOR A RESIDENCY RESTRICTION
30 PURSUANT TO SECTION ONE HUNDRED SIXTY-EIGHT-N OF THE CORRECTION LAW.
31 (f) If the case review team determines that the respondent is not a
32 sex offender requiring civil management, it shall so notify the respond-
33 ent and the attorney general, and the attorney general shall not file a
34 sex offender civil management petition. IF THE CASE REVIEW TEAM FINDS
35 THAT AN INDIVIDUAL REFERRED BY A COURT PURSUANT TO SUBDIVISION THREE OF
36 SECTION ONE HUNDRED SIXTY-EIGHT-D OR SUBDIVISION TWO OF SECTION ONE
37 HUNDRED SIXTY-EIGHT-K OF THE CORRECTION LAW SHOULD NOT BE CONSIDERED FOR
38 A RESIDENCY RESTRICTION, IT SHALL SO NOTIFY THE COURT, THE INDIVIDUAL
39 AND THE DISTRICT ATTORNEY.
40 (g) I. If the case review team finds that the respondent is a sex
41 offender requiring civil management, it shall so notify the respondent
42 and the attorney general, in writing. The written notice must be accom-
43 panied by a written report from a psychiatric examiner that includes a
44 finding as to whether the respondent has a mental abnormality. Where the
45 notice indicates that a respondent stands convicted of or was charged
46 with a designated felony, it shall also include the case review team's
47 finding as to whether the act was sexually motivated. The case review
48 team shall provide its written notice to the attorney general and the
49 respondent within forty-five days of the commissioner receiving the
50 notice of anticipated release. However, failure to do so within that
51 time period shall not affect the validity of such notice or finding or
52 any subsequent action, including the attorney general's filing of a sex
53 offender civil management petition subsequent to receiving the finding
54 of the case review team.
55 II. IF THE CASE MANAGEMENT REVIEW TEAM FINDS THAT THE RESPONDENT OR
56 OTHER INDIVIDUAL REFERRED BY THE COURT PURSUANT TO SUBDIVISION THREE OF
A. 7878 11
1 SECTION ONE HUNDRED SIXTY-EIGHT-D OF THE CORRECTION LAW OR SUBDIVISION
2 TWO OF SECTION ONE HUNDRED SIXTY-EIGHT-K OF THE CORRECTION LAW IS A SEX
3 OFFENDER, THAT THE VICTIM OF SUCH OFFENSE WAS UNDER THE AGE OF EIGHTEEN
4 AT THE TIME OF SUCH OFFENSE, AND THAT THE SEX OFFENDER SHOULD BE CONSID-
5 ERED FOR A RESIDENCY RESTRICTION, IT SHALL SO NOTIFY THE RESPONDENT OR
6 OTHER INDIVIDUAL, THE DISTRICT ATTORNEY AND THE SENTENCING COURT IN
7 WRITING. THE WRITTEN NOTICE MUST BE ACCOMPANIED BY A WRITTEN REPORT FROM
8 A PSYCHIATRIC EXAMINER THAT EXPLAINS THE BASIS OF THE RECOMMENDATION.
9 THE CASE REVIEW TEAM SHALL PROVIDE ITS WRITTEN NOTICE TO THE RESPONDENT,
10 THE DISTRICT ATTORNEY AND THE SENTENCING COURT WITHIN FORTY-FIVE DAYS OF
11 THE COMMISSIONER RECEIVING THE NOTICE OF THE ANTICIPATED RELEASE. HOWEV-
12 ER, FAILURE TO DO SO WITHIN THAT TIME PERIOD SHALL NOT AFFECT THE VALID-
13 ITY OF SUCH NOTICE OR FINDING OR ANY SUBSEQUENT ACTION.
14 S 13. Subdivision 14 of section 259-c of the executive law is
15 REPEALED.
16 S 14. Subdivision 4-a of section 65.10 of the penal law is REPEALED.
17 S 15. The district attorney may file a petition to seek the imposition
18 of a residency restriction for a sex offender whose victim was a child
19 under the age of eighteen and who is at liberty on the effective date of
20 this act. A petition filed pursuant to this section shall be filed with
21 the sentencing court or the court which made the determination regarding
22 the level of notification of such offender within one year of the effec-
23 tive date of this act. The petition shall set forth the reasons for
24 seeking the residency restriction and the district attorney shall bear
25 the burden, by clear and convincing evidence, of proving the facts
26 supporting the imposition of a residency restriction. Upon receipt of a
27 petition submitted pursuant to this section, the court shall order an
28 evaluation pursuant to section 10.05 of the mental hygiene law and
29 proceed in a manner consistent with section 168-n of the correction law.
30 The court shall determine whether to impose a residency restriction on
31 the offender named in the petition. In the event that the district
32 attorney's petition is granted, the sex offender may appeal as of right
33 from the order, pursuant to the provisions of articles 55, 56 and 57 of
34 the civil practice law and rules. Where counsel has been assigned to
35 represent the offender upon the ground that he or she is financially
36 unable to retain counsel, that assignment shall be continued throughout
37 the pendency of the appeal, in accordance with section 18-B of the coun-
38 ty law.
39 S 16. This act shall take effect on the one hundred eightieth day
40 after it shall have become a law.
