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.