A04591 Summary:

BILL NO    A04591 

SAME AS    SAME AS S03138

SPONSOR    O'Donnell (MS)

COSPNSR    Aubry

MLTSPNSR   Perry

Amd SS168-d, 168-k, 168-l & 168-n, Cor L

Relates to sex offender risk assessment instruments.
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A04591 Actions:

BILL NO    A04591 

02/06/2013 referred to correction
05/21/2013 reported referred to codes
06/04/2013 reported referred to rules
01/08/2014 referred to correction
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A04591 Votes:

There are no votes for this bill in this legislative session.
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A04591 Memo:

Memo not available
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A04591 Text:

                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________

                                         4591

                              2013-2014 Regular Sessions

                                 I N  A S S E M B L Y

                                   February 6, 2013
                                      ___________

       Introduced by M. of A. O'DONNELL, AUBRY -- 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 designee,
   19  who  shall  bear the burden of proving the facts supporting the determi-
   20  nations sought by clear and convincing  evidence.    Where  there  is  a
   21  dispute  between  the  parties  concerning the determinations, the court
   22  shall adjourn the hearing as necessary to permit the sex offender or the
   23  district attorney to obtain materials  relevant  to  the  determinations
   24  from any state or local facility, hospital, institution, office, agency,
   25  department  or  division.  Such materials may be obtained by subpoena if

        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD00904-01-3
       A. 4591                             2

    1  not voluntarily provided to the requesting party. In making the determi-
    2  nations, the court shall review any victim's statement and any  relevant
    3  materials  and  evidence  submitted by the sex offender and the district
    4  attorney  and the court may consider reliable hearsay evidence submitted
    5  by either party provided that it  is  relevant  to  the  determinations.
    6  Facts  previously  proven at trial or elicited at the time of entry of a
    7  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    S 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 duty to register under this
   29  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 case is under review and that he or
   39  she is permitted to submit to the board any information relevant to  the
   40  review.  After  reviewing  any  information  obtained,  and applying the
   41  guidelines AND RISK ASSESSMENT  INSTRUMENT  established  in  subdivision
   42  five  of  section  one  hundred sixty-eight-l of this article, the board
   43  shall within sixty calendar days make  a  recommendation  regarding  the
   44  level of notification pursuant to subdivision six of section one hundred
   45  sixty-eight-l  of  this  article  and whether such sex offender shall be
   46  designated a sexual predator, sexually violent  offender,  or  predicate
   47  sex  offender  as  defined  in  subdivision seven of section one hundred
   48  sixty-eight-a of this article.  This recommendation shall  be  confiden-
   49  tial  and  shall  not  be  available  for public inspection. It shall be
   50  submitted by the board to the county court or supreme court and  to  the
   51  district  attorney in the county of residence of the sex offender and to
   52  the sex offender. It shall be the duty of the county  court  or  supreme
   53  court  in  the  county  of  residence  of the sex offender, applying the
   54  guidelines AND RISK ASSESSMENT  INSTRUMENT  established  in  subdivision
   55  five  of section one hundred sixty-eight-l of this article, to determine
   56  the level of notification pursuant to subdivision  six  of  section  one
       A. 4591                             3

    1  hundred  sixty-eight-l  of  this  article  and whether such sex offender
    2  shall be designated a sexual predator,  sexually  violent  offender,  or
    3  predicate  sex  offender  as defined in subdivision seven of section one
    4  hundred sixty-eight-a of this article. At least thirty days prior to the
    5  determination  proceeding, such court shall notify the district attorney
    6  and the sex offender, in writing,  of  the  date  of  the  determination
    7  proceeding  and  the  court shall also provide the district attorney and
    8  sex offender with a copy of the recommendation received from  the  board
    9  and  any  statement  of the reasons for the recommendation received from
   10  the board. This notice  shall  include  the  following  statement  or  a
   11  substantially  similar  statement:  "This  proceeding  is  being held to
   12  determine whether you will be classified as a level 3 offender (risk  of
   13  repeat  offense  is high), a level 2 offender (risk of repeat offense is
   14  moderate), or a level 1 offender (risk of repeat  offense  is  low),  or
   15  whether  you will be designated as a sexual predator, a sexually violent
   16  offender or a predicate sex offender, which will determine how long  you
   17  must register as a sex offender and how much information can be provided
   18  to  the  public  concerning  your registration. If you fail to appear at
   19  this proceeding, without sufficient excuse, it shall  be  held  in  your
   20  absence. Failure to appear may result in a longer period of registration
   21  or  a higher level of community notification because you are not present
   22  to offer evidence or contest evidence offered by the district attorney."
   23  The court shall also advise the sex offender that he or she has a  right
   24  to  a hearing prior to the court's determination, that he or she has the
   25  right to be represented by counsel at the hearing and that counsel  will
   26  be  appointed  if  he  or she is financially unable to retain counsel. A
   27  returnable form shall be enclosed in  the  court's  notice  to  the  sex
   28  offender  on which the sex offender may apply for assignment of counsel.
   29  If the sex offender applies for assignment  of  counsel  and  the  court
   30  finds  that  the  offender  is financially unable to retain counsel, the
   31  court shall assign counsel to represent the  sex  offender  pursuant  to
   32  article  eighteen-B  of the county law. If the district attorney seeks a
   33  determination that differs from  the  recommendation  submitted  by  the
   34  board,  at  least  ten  days  prior  to the determination proceeding the
   35  district attorney shall provide to the court  and  the  sex  offender  a
   36  statement setting forth the determinations sought by the district attor-
   37  ney together with the reasons for seeking such determinations. The court
   38  shall  allow  the  sex  offender to appear and be heard. The state shall
   39  appear by the district attorney, or his or her designee, who shall  bear
   40  the  burden of proving the facts supporting the determinations sought by
   41  clear and convincing evidence. It shall be the duty of the court  apply-
   42  ing  the guidelines AND RISK ASSESSMENT INSTRUMENT established in subdi-
   43  vision five of section one hundred  sixty-eight-l  of  this  article  to
   44  determine  the  level  of  notification  pursuant  to subdivision six of
   45  section one hundred sixty-eight-l of this article and whether  such  sex
   46  offender  shall be designated a sexual predator, sexually violent offen-
   47  der, or predicate sex  offender  as  defined  in  subdivision  seven  of
   48  section  one  hundred  sixty-eight-a  of  this article. Where there is a
   49  dispute between the parties concerning  the  determinations,  the  court
   50  shall adjourn the hearing as necessary to permit the sex offender or the
   51  district  attorney  to  obtain  materials relevant to the determinations
   52  from the state board of examiners of sex offenders or any state or local
   53  facility, hospital, institution, office, agency, department or division.
   54  Such materials may be obtained by subpoena if not  voluntarily  provided
   55  to  the  requesting  party. In making the determinations the court shall
   56  review any victim's statement and any relevant  materials  and  evidence
       A. 4591                             4

    1  submitted  by  the sex offender and the district attorney and the recom-
    2  mendation and any material submitted by  the  board,  and  may  consider
    3  reliable hearsay evidence submitted by either party, provided that it is
    4  relevant  to  the determinations. If available, facts proven at trial or
    5  elicited at the time of a plea of guilty shall be deemed established  by
    6  clear  and  convincing  evidence and shall not be relitigated. The court
    7  shall render an order setting forth its determinations and the  findings
    8  of  fact and conclusions of law on which the determinations are based. A
    9  copy of the order shall be submitted by the court to the division.  Upon
   10  application  of  either  party,  the court shall seal any portion of the
   11  court file or record which contains material that is confidential  under
   12  any  state  or federal statute. Either party may appeal as of right from
   13  the order pursuant to the provisions of articles  fifty-five,  fifty-six
   14  and  fifty-seven  of the civil practice law and rules. Where counsel has
   15  been assigned to represent the sex offender upon the ground that the sex
   16  offender is financially unable to retain counsel, that assignment  shall
   17  be  continued  throughout the pendency of the appeal, and the person may
   18  appeal as a poor person pursuant to article  eighteen-B  of  the  county
   19  law.
   20    S  3.  Subdivision  5  and  the  opening paragraph of subdivision 6 of
   21  section 168-l of the correction law, subdivision 5 as added  by  chapter
   22  192  of  the laws of 1995, subparagraph (i) of paragraph (a) of subdivi-
   23  sion 5 and the opening paragraph of subdivision 6 as amended by  chapter
   24  11  of  the laws of 2002, are amended and a new subdivision 5-a is added
   25  to read as follows:
   26    5. The board shall develop guidelines and procedures AND USE  A  VALI-
   27  DATED  RISK ASSESSMENT INSTRUMENT to assess the risk of a repeat offense
   28  by such sex offender and the threat posed to  the  public  safety.  SUCH
   29  RISK  ASSESSMENT INSTRUMENT SHALL BE PERIODICALLY SUBJECTED TO EMPIRICAL
   30  RE-VALIDATION. Such guidelines [shall] MAY be based upon, but not limit-
   31  ed to, the following:
   32    (a) criminal  history  factors  indicative  of  high  risk  of  repeat
   33  offense, including:
   34    (i)  whether  the sex offender has a mental abnormality or personality
   35  disorder that makes him or her likely to engage  in  predatory  sexually
   36  violent offenses;
   37    (ii)  whether the sex offender's conduct was found to be characterized
   38  by repetitive and compulsive behavior, associated with drugs or alcohol;
   39    (iii) whether the sex offender served the maximum term;
   40    (iv) whether the sex offender committed the felony sex offense against
   41  a child;
   42    (v) the age of the sex offender at the time of the commission  of  the
   43  first sex offense;
   44    (b)  other  criminal  history  factors to be considered in determining
   45  risk, including:
   46    (i) the relationship between such sex offender and the victim;
   47    (ii) whether the offense involved the use of  a  weapon,  violence  or
   48  infliction of serious bodily injury;
   49    (iii) the number, date and nature of prior offenses;
   50    (c)  conditions of release that minimize risk or re-offense, including
   51  but not limited to  whether  the  sex  offender  is  under  supervision;
   52  receiving  counseling, therapy or treatment; or residing in a home situ-
   53  ation that provides guidance and supervision;
   54    (d) physical conditions that minimize risk  of  re-offense,  including
   55  but not limited to advanced age or debilitating illness;
       A. 4591                             5

    1    (e)  whether  psychological or psychiatric profiles indicate a risk of
    2  recidivism;
    3    (f) the sex offender's response to treatment;
    4    (g) recent behavior, including behavior while confined;
    5    (h)  recent  threats  or  gestures  against  persons or expressions of
    6  intent to commit additional offenses; and
    7    (i) review of any victim impact statement.
    8    5-A. (A) THE BOARD IN CONSULTATION WITH THE DEPARTMENT AND  THE  DIVI-
    9  SION OF CRIMINAL JUSTICE SERVICES SHALL MAINTAIN A STATEWIDE DATABASE OF
   10  SEX OFFENDER RECIDIVISM STATISTICS.
   11    (B)  THE BOARD IN CONSULTATION WITH THE DEPARTMENT AND THE DIVISION OF
   12  CRIMINAL JUSTICE SERVICES SHALL CONDUCT A PERIODIC RETROACTIVE STUDY  AT
   13  LEAST  EVERY  FIVE  YEARS  TO DETERMINE THE PREDICTIVE VALUE OF THE RISK
   14  ASSESSMENT INSTRUMENT USED TO ASSIGN RISK OF REPEAT  OFFENSE  LEVELS  TO
   15  SEX  OFFENDERS  PURSUANT  TO SUBDIVISION SIX OF THIS SECTION. AFTER EACH
   16  SUCH STUDY THE BOARD SHALL PREPARE A DETAILED REPORT TO THE GOVERNOR AND
   17  LEGISLATURE DETERMINING THE PREDICTIVE  VALUE  OF  THE  RISK  ASSESSMENT
   18  INSTRUMENT  AND  THE  PREDICTIVE  VALUE OF EACH FACTOR CONSIDERED IN THE
   19  OVERALL RISK ASSESSMENT WHEN APPLIED TO  THE  STATEWIDE  DATABASE  MAIN-
   20  TAINED  PURSUANT  TO PARAGRAPH (A) OF THIS SUBDIVISION. THE REPORT SHALL
   21  INCLUDE RECOMMENDED CHANGES TO THE RISK ASSESSMENT INSTRUMENT TO ENHANCE
   22  ITS PREDICTIVE CAPABILITIES FOR THE PURPOSE OF PERIODIC REVALIDATION  OF
   23  SUCH  INSTRUMENT PURSUANT TO SUBDIVISION FIVE OF THIS SECTION. THE FIRST
   24  SUCH STUDY SHALL BE COMPLETED WITHIN TWO YEARS OF THE EFFECTIVE DATE  OF
   25  THIS SUBDIVISION.
   26    Applying   these   guidelines   AND   THE  VALIDATED  RISK  ASSESSMENT
   27  INSTRUMENT, the board shall within sixty  calendar  days  prior  to  the
   28  discharge,  parole,  release to post-release supervision or release of a
   29  sex offender make a recommendation which shall be confidential and shall
   30  not be available for public inspection, to the sentencing  court  as  to
   31  whether  such  sex offender warrants the designation of sexual predator,
   32  sexually violent offender, or  predicate  sex  offender  as  defined  in
   33  subdivision  seven of section one hundred sixty-eight-a of this article.
   34  In addition, the guidelines AND SUCH INSTRUMENT shall be applied by  the
   35  board  to  make  a recommendation to the sentencing court which shall be
   36  confidential and shall not be available for public inspection, providing
   37  for one of the following three levels of notification depending upon the
   38  degree of the risk of re-offense by the sex offender.
   39    S 4. Subdivisions 1 and 2 of section  168-n  of  the  correction  law,
   40  subdivision  1 as amended by chapter 11 of the laws of 2002 and subdivi-
   41  sion 2 as amended by chapter 453 of the laws of  1999,  are  amended  to
   42  read as follows:
   43    1.  A  determination  that  an offender is a sexual predator, sexually
   44  violent offender, or predicate sex offender as  defined  in  subdivision
   45  seven of section one hundred sixty-eight-a of this article shall be made
   46  prior  to  the discharge, parole, release to post-release supervision or
   47  release of such offender by the sentencing court applying the guidelines
   48  AND RISK  ASSESSMENT  INSTRUMENT  established  in  subdivision  five  of
   49  section  one  hundred  sixty-eight-l  of  this article after receiving a
   50  recommendation from the board pursuant to  section  one  hundred  sixty-
   51  eight-l of this article.
   52    2. In addition, applying the guidelines AND RISK ASSESSMENT INSTRUMENT
   53  established  in subdivision five of section one hundred sixty-eight-l of
   54  this article, the sentencing court shall also make a determination  with
   55  respect  to  the level of notification, after receiving a recommendation
   56  from the board pursuant to section one  hundred  sixty-eight-l  of  this
       A. 4591                             6

    1  article. Both determinations of the sentencing court shall be made thir-
    2  ty calendar days prior to discharge, parole or release.
    3    S 5. This act shall take effect on the one hundred eightieth day after
    4  it shall have become a law.
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