NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A8930
SPONSOR: Hunter TITLE OF BILL:
An act to amend the correction law, in relation to risk assessment
instruments for sex offenders
PURPOSE:
To update the guidelines of the sex offender risk assessment instrument
and require use of a validated instrument.
SUMMARY OF PROVISIONS:
Section 1 makes a technical amendment to section 168-d of the correction
law requiring the application of a risk assessment instrument.
Section 2 makes the same technical amendment to section 168-k of the
correction law in requiring the application of a risk assessment instru-
ment.
Section 3 amends subdivisions 5 and 6 and adds a new subdivision 5-a of
section 168-1 of the correction law requiring the board of examiners of
sex offenders to use a validated risk assessment instrument subjected to
periodic empirical re-validation.
Section 4 makes the same technical amendment to subdivisions 1 and 2 of
section 168-n of the correction law requiring the application of a risk
assessment instrument.
Section 5 provides for an effective date.
JUSTIFICATION:
The New York State Board of Examiners of Sex Offenders created risk
assessment guidelines back in 1995. The guidelines are used to assess
each sex offender's risk of reoffending and to make a recommendation to
the courts concerning the risk level that should be assigned to such sex
offender. The courts treat these recommendations as presumptively valid
and generally only override the board's recommendation if something is
brought to their attention that was not taken into account by the guide-
lines.
An expert panel, including two assistant district attorneys, a probation
.officer, a deputy attorney general, a police captain, the acting direc-
tor of forensic services at the Office of Mental Health, a physician and
a sex offender treatment provider, applied the guidelines to twenty
cases, and then modified them. The guidelines were adopted and modified
by the panel in January 1996 and, with one slight revision in 1997 and
one statutory update in 2006, have remained the same since that time.
Much has developed in the field of stochastic modeling that classify
sexual offenders into different risk categories since 1995. For example,
the California Department of Corrections and Rehabilitation is required
by state law to use a static (unchanging) risk assessment instrument in
addressing an offender's likelihood of sexual re-offense prior to being
released on parole; by Probation to asses s offenders pre-sentencing and
on probation caseloads; and by the Department of State Hospitals prior
to release from a DHS institution.
Research conducted as recently as 2016 has shown that the predictive
accuracy of re-offense can be increased slightly when dynamic (changea-
ble) factors are combined with static (unchangeable) factors. These
dynamic factors include things like substance abuse, personality disor-
ders, deviant, sexual interests, emotional identification with children,
and self-regulation problems. Dynamic and violent risk assessment
instruments are also assessed in mandated treatment programs. The combi-
nation of using static, dynamic, and violence instruments will give a
better picture of the overall risk of recidivism for individuals who
have previously sexually offended.
The Static 99/R is the most widely used sexual offender actuarial risk
assessment instrument in the world. The assumptions. aggregate criminal
history as well as demographic characteristics to identify the predic-
tors of recidivism. The general idea of any sex offender actuarial risk
assessment is that the characteristics of an individual sex offender are
compared to the characteristics of a large group of sex offenders who
have reoffended over a given period of time. The instruments are not
personality tests or psychological profiles, but are predictive statis-
tical tools that look at the traits of an individual to see how other
similarly situated individuals have fared in the past. The strength of
the actuarial method is that it is research-supported rather than
subjective, and that the instrument is susceptible to ongoing re-valida-
tion and refinement. The Static 99/R also demonstrates a moderate abili-
ty to identify recidivists and non-recidivists; -recent updates include
adding data on older offenders, over 60 years of age, with low recidiv-
ism rates.
Validation studies of the underlying assumptions that are used in actu-
arial risk assessment instruments are extremely important. The Califor-
nia Department of Justice (DOJ) collaborated with the State Authorized
Risk Assessment Tools. used for Sex Offenders (SARATSO) Committee and
conducted two validation studies; one in 2014 and another in 2016 on the
Static-99/R risk assessment instrument. Unbiased experts in the field
of risk assessment analyze the data. The studies examined the re-of-
fence rates of parolee and probation offenders. The study concluded that
the overall Static-99/R worked well in predicting the risk of sexual
re-offense along various ethnic groups. The conclusion was that re-of-
fense was less in California than in international samples; that tran-
sients reoffended at higher rates; that the typical sex offender after 5
years of release is likely to offend between 4%12%; after 10 years of
release between 6% -22%.
It is hard to compare the predictive accuracy of New York's current risk
assessment guidelines to guidelines of the Static 99/R; New York guide-
lines have never been tested to see if they in fact accurately predict
the risk of reoffending. Additionally, the instrument has never been
validated. The process of periodic empirical validation ensures that a
risk assessment instrument is accurate, predictive, leads to the same
results when different people apply it and appropriately supports the
decision-making process in each case under consideration so that the
state is not making arbitrary or irrational assignments of risk levels.
A second problem with the guidelines is that they do not take new
research into account. It has been noted by clinical psychologists work-
ing with sex offenders in New York that many of the factors used in the
state's risk assessment guidelines do not have any relation to the level
of risk; recommendations have been made that the risk assessment guide-
lines should be replaced with more modern and validated instruments such
as those used in the Static 99/R. New York's sex offender registry
should utilize 21st century actuarial derived risk assessment levels.
This will ensure that law enforcement and treatment services focus on
the sex offenders most likely to recidivate. The public and law enforce-
ment depend on the findings of the Board of Examiners of Sex Offenders,
so it is incumbent upon the legislature to ensure that the Board is
utilizing the most up-to-date, accurate and scientifically validated
risk assessment instrument available. The first line of defense against
recidivism is a precise estimation of which sex offenders need the most
careful supervision, allowing law enforcement to focus its efforts on
those sex offenders who pose a high risk of reoffending. Requiring the
use of a validated risk assessment instrument like the Static 99/R will
help the state to identify those high-risk individuals who need to be
watched most closely.
LEGISLATIVE HISTORY:
2023-2024 - S.4451 No Same As - Died in Crime Victims
2021-2022 - S.3096 No Same As - Died in Crime Victims
2019-2020 - S.4191/A.7509 O'Donnell - died in Crime Victims/Correction
2017-2018 - S.3711/A.1906 O'Donnell - died in Crime Victims/Correction
2015-2016 - S.3097/A.2190- O'Donnell - died in Crime Victims/Correction
2013-2014 - S.3138-A/A.4591-A O'Donnell - died in Crime Victims/
Correction.
2012 - S.7080/A.9258 Aubry - died in Crime Victims/Correction
FISCAL IMPLICATIONS:
None, as the Static 99/R and other validated risk assessment instruments
are in public domain.
LOCAL FISCAL IMPLICATIONS:
None
EFFECTIVE DATE:
This act shall take effect one hundred eighty days after it shall have
become law.
STATE OF NEW YORK
________________________________________________________________________
8930
2025-2026 Regular Sessions
IN ASSEMBLY
July 16, 2025
___________
Introduced by M. of A. HUNTER -- read once and referred to the Committee
on Correction
AN ACT to amend the correction law, in relation to risk assessment
instruments for sex offenders
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 shall be
6 the duty of the court applying the guidelines and risk assessment
7 instrument established in subdivision five of section one hundred
8 sixty-eight-l of this article to determine the level of notification
9 pursuant to subdivision six of section one hundred sixty-eight-l of this
10 article and whether such sex offender shall be designated a sexual pred-
11 ator, sexually violent offender, or predicate sex offender as defined in
12 subdivision seven of section one hundred sixty-eight-a of this article.
13 At least fifteen days prior to the determination proceeding, the
14 district attorney shall provide to the court and the sex offender a
15 written statement setting forth the determinations sought by the
16 district attorney together with the reasons for seeking such determi-
17 nations. The court shall allow the sex offender to appear and be heard.
18 The state shall appear by the district attorney, or [his or her] the
19 district attorney's designee, who shall bear the burden of proving the
20 facts supporting the determinations sought by clear and convincing
21 evidence. Where there is a dispute between the parties concerning the
22 determinations, the court shall adjourn the hearing as necessary to
23 permit the sex offender or the district attorney to obtain materials
24 relevant to the determinations from any state or local facility, hospi-
25 tal, institution, office, agency, department or division. Such materials
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD06430-01-5
A. 8930 2
1 may be obtained by subpoena if not voluntarily provided to the request-
2 ing party. In making the determinations, the court shall review any
3 victim's statement and any relevant materials and evidence submitted by
4 the sex offender and the district attorney and the court may consider
5 reliable hearsay evidence submitted by either party provided that it is
6 relevant to the determinations. Facts previously proven at trial or
7 elicited at the time of entry of a plea of guilty shall be deemed estab-
8 lished by clear and convincing evidence and shall not be relitigated.
9 The court shall render an order setting forth its determinations and the
10 findings of fact and conclusions of law on which the determinations are
11 based. A copy of the order shall be submitted by the court to the divi-
12 sion. Upon application of either party, the court shall seal any portion
13 of the court file or record which contains material that is confidential
14 under any state or federal statute. Either party may appeal as of right
15 from the order pursuant to the provisions of articles fifty-five,
16 fifty-six and fifty-seven of the civil practice law and rules. Where
17 counsel has been assigned to represent the sex offender upon the ground
18 that the sex offender is financially unable to retain counsel, that
19 assignment shall be continued throughout the pendency of the appeal, and
20 the person may appeal as a poor person pursuant to article eighteen-B of
21 the county law.
22 § 2. Subdivision 2 of section 168-k of the correction law, as amended
23 by chapter 684 of the laws of 2005, is amended to read as follows:
24 2. The division shall advise the board that the sex offender has
25 established residence in this state. The board shall determine whether
26 the sex offender is required to register with the division. If it is
27 determined that the sex offender is required to register, the division
28 shall notify the sex offender of [his or her] the duty to register under
29 this article and shall require the sex offender to sign a form as may be
30 required by the division acknowledging that the duty to register and the
31 procedure for registration has been explained to the sex offender. The
32 division shall obtain on such form the address where the sex offender
33 expects to reside within the state and the sex offender shall retain one
34 copy of the form and send two copies to the division which shall provide
35 the information to the law enforcement agency having jurisdiction where
36 the sex offender expects to reside within this state. No later than
37 thirty days prior to the board making a recommendation, the sex offender
38 shall be notified that [his or her] the case is under review and that
39 [he or she] the sex offender is permitted to submit to the board any
40 information relevant to the review. After reviewing any information
41 obtained, and applying the guidelines and risk assessment instrument
42 established in subdivision five of section one hundred sixty-eight-l of
43 this article, the board shall within sixty calendar days make a recom-
44 mendation regarding the level of notification pursuant to subdivision
45 six of section one hundred sixty-eight-l of this article and whether
46 such sex offender shall be designated a sexual predator, sexually
47 violent offender, or predicate sex offender as defined in subdivision
48 seven of section one hundred sixty-eight-a of this article. This recom-
49 mendation shall be confidential and shall not be available for public
50 inspection. It shall be submitted by the board to the county court or
51 supreme court and to the district attorney in the county of residence of
52 the sex offender and to the sex offender. It shall be the duty of the
53 county court or supreme court in the county of residence of the sex
54 offender, applying the guidelines and risk assessment instrument estab-
55 lished in subdivision five of section one hundred sixty-eight-l of this
56 article, to determine the level of notification pursuant to subdivision
A. 8930 3
1 six of section one hundred sixty-eight-l of this article and whether
2 such sex offender shall be designated a sexual predator, sexually
3 violent offender, or predicate sex offender as defined in subdivision
4 seven of section one hundred sixty-eight-a of this article. At least
5 thirty days prior to the determination proceeding, such court shall
6 notify the district attorney and the sex offender, in writing, of the
7 date of the determination proceeding and the court shall also provide
8 the district attorney and sex offender with a copy of the recommendation
9 received from the board and any statement of the reasons for the recom-
10 mendation received from the board. This notice shall include the follow-
11 ing statement or a substantially similar statement: "This proceeding is
12 being held to determine whether you will be classified as a level 3
13 offender (risk of repeat offense is high), a level 2 offender (risk of
14 repeat offense is moderate), or a level 1 offender (risk of repeat
15 offense is low), or whether you will be designated as a sexual predator,
16 a sexually violent offender or a predicate sex offender, which will
17 determine how long you must register as a sex offender and how much
18 information can be provided to the public concerning your registration.
19 If you fail to appear at this proceeding, without sufficient excuse, it
20 shall be held in your absence. Failure to appear may result in a longer
21 period of registration or a higher level of community notification
22 because you are not present to offer evidence or contest evidence
23 offered by the district attorney." The court shall also advise the sex
24 offender that [he or she] the sex offender has a right to a hearing
25 prior to the court's determination, that [he or she] the sex offender
26 has the right to be represented by counsel at the hearing and that coun-
27 sel will be appointed if [he or she] the sex offender is financially
28 unable to retain counsel. A returnable form shall be enclosed in the
29 court's notice to the sex offender on which the sex offender may apply
30 for assignment of counsel. If the sex offender applies for assignment
31 of counsel and the court finds that the offender is financially unable
32 to retain counsel, the court shall assign counsel to represent the sex
33 offender pursuant to article eighteen-B of the county law. If the
34 district attorney seeks a determination that differs from the recommen-
35 dation submitted by the board, at least ten days prior to the determi-
36 nation proceeding the district attorney shall provide to the court and
37 the sex offender a statement setting forth the determinations sought by
38 the district attorney together with the reasons for seeking such deter-
39 minations. The court shall allow the sex offender to appear and be
40 heard. The state shall appear by the district attorney, or [his or her]
41 the district attorney's designee, who shall bear the burden of proving
42 the facts supporting the determinations sought by clear and convincing
43 evidence. It shall be the duty of the court applying the guidelines and
44 risk assessment instrument established in subdivision five of section
45 one hundred sixty-eight-l of this article to determine the level of
46 notification pursuant to subdivision six of section one hundred sixty-
47 eight-l of this article and whether such sex offender shall be desig-
48 nated a sexual predator, sexually violent offender, or predicate sex
49 offender as defined in subdivision seven of section one hundred sixty-
50 eight-a of this article. Where there is a dispute between the parties
51 concerning the determinations, the court shall adjourn the hearing as
52 necessary to permit the sex offender or the district attorney to obtain
53 materials relevant to the determinations from the state board of examin-
54 ers of sex offenders or any state or local facility, hospital, institu-
55 tion, office, agency, department or division. Such materials may be
56 obtained by subpoena if not voluntarily provided to the requesting
A. 8930 4
1 party. In making the determinations the court shall review any victim's
2 statement and any relevant materials and evidence submitted by the sex
3 offender and the district attorney and the recommendation and any mate-
4 rial submitted by the board, and may consider reliable hearsay evidence
5 submitted by either party, provided that it is relevant to the determi-
6 nations. If available, facts proven at trial or elicited at the time of
7 a plea of guilty shall be deemed established by clear and convincing
8 evidence and shall not be relitigated. The court shall render an order
9 setting forth its determinations and the findings of fact and conclu-
10 sions of law on which the determinations are based. A copy of the order
11 shall be submitted by the court to the division. Upon application of
12 either party, the court shall seal any portion of the court file or
13 record which contains material that is confidential under any state or
14 federal statute. Either party may appeal as of right from the order
15 pursuant to the provisions of articles fifty-five, fifty-six and fifty-
16 seven of the civil practice law and rules. Where counsel has been
17 assigned to represent the sex offender upon the ground that the sex
18 offender is financially unable to retain counsel, that assignment shall
19 be continued throughout the pendency of the appeal, and the person may
20 appeal as a poor person pursuant to article eighteen-B of the county
21 law.
22 § 3. Subdivision 5 and the opening paragraph of subdivision 6 of
23 section 168-l of the correction law, subdivision 5 as added by chapter
24 192 of the laws of 1995, subparagraph (i) of paragraph (a) of subdivi-
25 sion 5 and the opening paragraph of subdivision 6 as amended by chapter
26 11 of the laws of 2002, are amended and a new subdivision 5-a is added
27 to read as follows:
28 5. The board shall develop guidelines and procedures and use a vali-
29 dated risk assessment instrument to assess the risk of a repeat offense
30 by such sex offender and the threat posed to the public safety. Such
31 risk assessment instrument shall be periodically subjected to empirical
32 re-validation. Such guidelines shall [be based upon,] incorporate
33 factors found to be predictive of risk of re-offense, including but not
34 limited to, the following:
35 (a) criminal history factors indicative of high risk of repeat
36 offense, including:
37 (i) whether the sex offender has a mental abnormality or personality
38 disorder that makes [him or her] the sex offender likely to engage in
39 predatory sexually violent offenses;
40 (ii) whether the sex offender's conduct was found to be characterized
41 by repetitive and compulsive behavior, associated with drugs or alcohol;
42 (iii) whether the sex offender served the maximum term;
43 (iv) whether the sex offender committed the felony sex offense against
44 a child;
45 (v) the age of the sex offender at the time of the commission of the
46 first sex offense;
47 (b) other criminal history factors to be considered in determining
48 risk, including:
49 (i) the relationship between such sex offender and the victim;
50 (ii) whether the offense involved the use of a weapon, violence or
51 infliction of serious bodily injury;
52 (iii) the number, date and nature of prior offenses;
53 (c) conditions of release that minimize risk [or] of re-offense,
54 including but not limited to whether the sex offender is under super-
55 vision; receiving counseling, therapy or treatment; or residing in a
56 home situation that provides guidance and supervision;
A. 8930 5
1 (d) physical conditions that minimize risk of re-offense, including
2 but not limited to advanced age or debilitating illness;
3 (e) whether psychological or psychiatric profiles indicate a risk of
4 recidivism;
5 (f) the sex offender's response to treatment;
6 (g) recent behavior, including behavior while confined;
7 (h) recent threats or gestures against persons or expressions of
8 intent to commit additional offenses; and
9 (i) review of any victim impact statement.
10 5-a. (a) The board in consultation with the department and the divi-
11 sion of criminal justice services shall maintain a statewide database of
12 sex offender recidivism statistics.
13 (b) The board in consultation with the department and the division of
14 criminal justice services shall conduct a periodic retroactive study at
15 least every five years to determine the predictive value of the risk
16 assessment instrument used to assign risk of repeat offense levels to
17 sex offenders pursuant to subdivision six of this section. After each
18 such study the board shall prepare a detailed report to the governor and
19 legislature determining the predictive value of the risk assessment
20 instrument and the predictive value of each factor considered in the
21 overall risk assessment when applied to the statewide database main-
22 tained pursuant to paragraph (a) of this subdivision. The report shall
23 include recommended changes to the guidelines and risk assessment
24 instrument to enhance their predictive capabilities for the purpose of
25 periodic revalidation of such guidelines and risk assessment instrument
26 pursuant to subdivision five of this section. The first such study shall
27 be completed within two years of the effective date of this subdivision.
28 Applying these guidelines and the validated risk assessment
29 instrument, the board shall within sixty calendar days prior to the
30 discharge, parole, release to post-release supervision or release of a
31 sex offender make a recommendation which shall be confidential and shall
32 not be available for public inspection, to the sentencing court as to
33 whether such sex offender warrants the designation of sexual predator,
34 sexually violent offender, or predicate sex offender as defined in
35 subdivision seven of section one hundred sixty-eight-a of this article.
36 In addition, the guidelines and such instrument shall be applied by the
37 board to make a recommendation to the sentencing court which shall be
38 confidential and shall not be available for public inspection, providing
39 for one of the following three levels of notification depending upon the
40 degree of the risk of re-offense by the sex offender.
41 § 4. Subdivisions 1 and 2 of section 168-n of the correction law,
42 subdivision 1 as amended by chapter 11 of the laws of 2002 and subdivi-
43 sion 2 as amended by chapter 453 of the laws of 1999, are amended to
44 read as follows:
45 1. A determination that an offender is a sexual predator, sexually
46 violent offender, or predicate sex offender as defined in subdivision
47 seven of section one hundred sixty-eight-a of this article shall be made
48 prior to the discharge, parole, release to post-release supervision or
49 release of such offender by the sentencing court applying the guidelines
50 and risk assessment instrument established in subdivision five of
51 section one hundred sixty-eight-l of this article after receiving a
52 recommendation from the board pursuant to section one hundred sixty-
53 eight-l of this article.
54 2. In addition, applying the guidelines and risk assessment instrument
55 established in subdivision five of section one hundred sixty-eight-l of
56 this article, the sentencing court shall also make a determination with
A. 8930 6
1 respect to the level of notification, after receiving a recommendation
2 from the board pursuant to section one hundred sixty-eight-l of this
3 article. Both determinations of the sentencing court shall be made thir-
4 ty calendar days prior to discharge, parole or release.
5 § 5. This act shall take effect on the one hundred eightieth day after
6 it shall have become a law.
