BILL NO S07080
SAME AS SAME AS A09258
SPONSOR KRUEGER
COSPNSR RIVERA
MLTSPNSR
Amd SS168-d, 168-k, 168-l & 168-n, Cor L
Relates to sex offender assessment instruments.
S T A T E O F N E W Y O R K
________________________________________________________________________
7080
I N S E N A T E
April 27, 2012
___________
Introduced by Sen. KRUEGER -- read twice and ordered printed, and when
printed to be committed to the Committee on Crime Victims, Crime and
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
26 not voluntarily provided to the requesting party. In making the determi-
27 nations, the court shall review any victim's statement and any relevant
28 materials and evidence submitted by the sex offender and the district
29 attorney and the court may consider reliable hearsay evidence submitted
30 by either party provided that it is relevant to the determinations.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD14211-02-2
S. 7080 2
1 Facts previously proven at trial or elicited at the time of entry of a
2 plea of guilty shall be deemed established by clear and convincing
3 evidence and shall not be relitigated. The court shall render an order
4 setting forth its determinations and the findings of fact and conclu-
5 sions of law on which the determinations are based. A copy of the order
6 shall be submitted by the court to the division. Upon application of
7 either party, the court shall seal any portion of the court file or
8 record which contains material that is confidential under any state or
9 federal statute. Either party may appeal as of right from the order
10 pursuant to the provisions of articles fifty-five, fifty-six and fifty-
11 seven of the civil practice law and rules. Where counsel has been
12 assigned to represent the sex offender upon the ground that the sex
13 offender is financially unable to retain counsel, that assignment shall
14 be continued throughout the pendency of the appeal, and the person may
15 appeal as a poor person pursuant to article eighteen-B of the county
16 law.
17 S 2. Subdivision 2 of section 168-k of the correction law, as amended
18 by chapter 684 of the laws of 2005, is amended to read as follows:
19 2. The division shall advise the board that the sex offender has
20 established residence in this state. The board shall determine whether
21 the sex offender is required to register with the division. If it is
22 determined that the sex offender is required to register, the division
23 shall notify the sex offender of his or her duty to register under this
24 article and shall require the sex offender to sign a form as may be
25 required by the division acknowledging that the duty to register and the
26 procedure for registration has been explained to the sex offender. The
27 division shall obtain on such form the address where the sex offender
28 expects to reside within the state and the sex offender shall retain one
29 copy of the form and send two copies to the division which shall provide
30 the information to the law enforcement agency having jurisdiction where
31 the sex offender expects to reside within this state. No later than
32 thirty days prior to the board making a recommendation, the sex offender
33 shall be notified that his or her case is under review and that he or
34 she is permitted to submit to the board any information relevant to the
35 review. After reviewing any information obtained, and applying the
36 guidelines AND RISK ASSESSMENT INSTRUMENT established in subdivision
37 five of section one hundred sixty-eight-l of this article, the board
38 shall within sixty calendar days make a recommendation regarding the
39 level of notification pursuant to subdivision six of section one hundred
40 sixty-eight-l of this article and whether such sex offender shall be
41 designated a sexual predator, sexually violent offender, or predicate
42 sex offender as defined in subdivision seven of section one hundred
43 sixty-eight-a of this article. This recommendation shall be confiden-
44 tial and shall not be available for public inspection. It shall be
45 submitted by the board to the county court or supreme court and to the
46 district attorney in the county of residence of the sex offender and to
47 the sex offender. It shall be the duty of the county court or supreme
48 court in the county of residence of the sex offender, applying the
49 guidelines AND RISK ASSESSMENT INSTRUMENT established in subdivision
50 five of section one hundred sixty-eight-l of this article, to determine
51 the level of notification pursuant to subdivision six of section one
52 hundred sixty-eight-l of this article and whether such sex offender
53 shall be designated a sexual predator, sexually violent offender, or
54 predicate sex offender as defined in subdivision seven of section one
55 hundred sixty-eight-a of this article. At least thirty days prior to the
56 determination proceeding, such court shall notify the district attorney
S. 7080 3
1 and the sex offender, in writing, of the date of the determination
2 proceeding and the court shall also provide the district attorney and
3 sex offender with a copy of the recommendation received from the board
4 and any statement of the reasons for the recommendation received from
5 the board. This notice shall include the following statement or a
6 substantially similar statement: "This proceeding is being held to
7 determine whether you will be classified as a level 3 offender (risk of
8 repeat offense is high), a level 2 offender (risk of repeat offense is
9 moderate), or a level 1 offender (risk of repeat offense is low), or
10 whether you will be designated as a sexual predator, a sexually violent
11 offender or a predicate sex offender, which will determine how long you
12 must register as a sex offender and how much information can be provided
13 to the public concerning your registration. If you fail to appear at
14 this proceeding, without sufficient excuse, it shall be held in your
15 absence. Failure to appear may result in a longer period of registration
16 or a higher level of community notification because you are not present
17 to offer evidence or contest evidence offered by the district attorney."
18 The court shall also advise the sex offender that he or she has a right
19 to a hearing prior to the court's determination, that he or she has the
20 right to be represented by counsel at the hearing and that counsel will
21 be appointed if he or she is financially unable to retain counsel. A
22 returnable form shall be enclosed in the court's notice to the sex
23 offender on which the sex offender may apply for assignment of counsel.
24 If the sex offender applies for assignment of counsel and the court
25 finds that the offender is financially unable to retain counsel, the
26 court shall assign counsel to represent the sex offender pursuant to
27 article eighteen-B of the county law. If the district attorney seeks a
28 determination that differs from the recommendation submitted by the
29 board, at least ten days prior to the determination proceeding the
30 district attorney shall provide to the court and the sex offender a
31 statement setting forth the determinations sought by the district attor-
32 ney together with the reasons for seeking such determinations. The court
33 shall allow the sex offender to appear and be heard. The state shall
34 appear by the district attorney, or his or her designee, who shall bear
35 the burden of proving the facts supporting the determinations sought by
36 clear and convincing evidence. It shall be the duty of the court apply-
37 ing the guidelines AND RISK ASSESSMENT INSTRUMENT established in subdi-
38 vision five of section one hundred sixty-eight-l of this article to
39 determine the level of notification pursuant to subdivision six of
40 section one hundred sixty-eight-l of this article and whether such sex
41 offender shall be designated a sexual predator, sexually violent offen-
42 der, or predicate sex offender as defined in subdivision seven of
43 section one hundred sixty-eight-a of this article. Where there is a
44 dispute between the parties concerning the determinations, the court
45 shall adjourn the hearing as necessary to permit the sex offender or the
46 district attorney to obtain materials relevant to the determinations
47 from the state board of examiners of sex offenders or any state or local
48 facility, hospital, institution, office, agency, department or division.
49 Such materials may be obtained by subpoena if not voluntarily provided
50 to the requesting party. In making the determinations the court shall
51 review any victim's statement and any relevant materials and evidence
52 submitted by the sex offender and the district attorney and the recom-
53 mendation and any material submitted by the board, and may consider
54 reliable hearsay evidence submitted by either party, provided that it is
55 relevant to the determinations. If available, facts proven at trial or
56 elicited at the time of a plea of guilty shall be deemed established by
S. 7080 4
1 clear and convincing evidence and shall not be relitigated. The court
2 shall render an order setting forth its determinations and the findings
3 of fact and conclusions of law on which the determinations are based. A
4 copy of the order shall be submitted by the court to the division. Upon
5 application of either party, the court shall seal any portion of the
6 court file or record which contains material that is confidential under
7 any state or federal statute. Either party may appeal as of right from
8 the order pursuant to the provisions of articles fifty-five, fifty-six
9 and fifty-seven of the civil practice law and rules. Where counsel has
10 been assigned to represent the sex offender upon the ground that the sex
11 offender is financially unable to retain counsel, that assignment shall
12 be continued throughout the pendency of the appeal, and the person may
13 appeal as a poor person pursuant to article eighteen-B of the county
14 law.
15 S 3. Subdivision 5 and the opening paragraph of subdivision 6 of
16 section 168-l of the correction law, subdivision 5 as added by chapter
17 192 of the laws of 1995, subparagraph (i) of paragraph (a) of subdivi-
18 sion 5 the opening paragraph of and subdivision 6 as amended by chapter
19 11 of the laws of 2002, are amended and a new subdivision 5-a is added
20 to read as follows:
21 5. The board shall develop guidelines and procedures AND USE A VALI-
22 DATED RISK ASSESSMENT INSTRUMENT to assess the risk of a repeat offense
23 by such sex offender and the threat posed to the public safety. SUCH
24 RISK ASSESSMENT INSTRUMENT SHALL BE PERIODICALLY SUBJECTED TO EMPIRICAL
25 RE-VALIDATION. Such guidelines [shall] MAY be based upon, but not limit-
26 ed to, the following:
27 (a) criminal history factors indicative of high risk of repeat
28 offense, including:
29 (i) whether the sex offender has a mental abnormality or personality
30 disorder that makes him or her likely to engage in predatory sexually
31 violent offenses;
32 (ii) whether the sex offender's conduct was found to be characterized
33 by repetitive and compulsive behavior, associated with drugs or alcohol;
34 (iii) whether the sex offender served the maximum term;
35 (iv) whether the sex offender committed the felony sex offense against
36 a child;
37 (v) the age of the sex offender at the time of the commission of the
38 first sex offense;
39 (b) other criminal history factors to be considered in determining
40 risk, including:
41 (i) the relationship between such sex offender and the victim;
42 (ii) whether the offense involved the use of a weapon, violence or
43 infliction of serious bodily injury;
44 (iii) the number, date and nature of prior offenses;
45 (c) conditions of release that minimize risk or re-offense, including
46 but not limited to whether the sex offender is under supervision;
47 receiving counseling, therapy or treatment; or residing in a home situ-
48 ation that provides guidance and supervision;
49 (d) physical conditions that minimize risk of re-offense, including
50 but not limited to advanced age or debilitating illness;
51 (e) whether psychological or psychiatric profiles indicate a risk of
52 recidivism;
53 (f) the sex offender's response to treatment;
54 (g) recent behavior, including behavior while confined;
55 (h) recent threats or gestures against persons or expressions of
56 intent to commit additional offenses; and
S. 7080 5
1 (i) review of any victim impact statement.
2 5-A. (A) THE BOARD IN CONSULTATION WITH THE DEPARTMENT AND THE DIVI-
3 SION OF CRIMINAL JUSTICE SERVICES SHALL MAINTAIN A STATEWIDE DATABASE OF
4 SEX OFFENDER RECIDIVISM STATISTICS.
5 (B) THE BOARD IN CONSULTATION WITH THE DEPARTMENT AND THE DIVISION OF
6 CRIMINAL JUSTICE SERVICES SHALL CONDUCT A PERIODIC RETROACTIVE STUDY AT
7 LEAST EVERY FIVE YEARS TO DETERMINE THE PREDICTIVE VALUE OF THE RISK
8 ASSESSMENT INSTRUMENT USED TO ASSIGN RISK OF REPEAT OFFENSE LEVELS TO
9 SEX OFFENDERS PURSUANT TO SUBDIVISION SIX OF THIS SECTION. AFTER EACH
10 SUCH STUDY THE BOARD SHALL PREPARE A DETAILED REPORT TO THE GOVERNOR AND
11 LEGISLATURE DETERMINING THE PREDICTIVE VALUE OF THE RISK ASSESSMENT
12 INSTRUMENT AND THE PREDICTIVE VALUE OF EACH FACTOR CONSIDERED IN THE
13 OVERALL RISK ASSESSMENT WHEN APPLIED TO THE STATEWIDE DATABASE MAIN-
14 TAINED PURSUANT TO PARAGRAPH (A) OF THIS SUBDIVISION. THE REPORT SHALL
15 INCLUDE RECOMMENDED CHANGES TO THE RISK ASSESSMENT INSTRUMENT TO ENHANCE
16 ITS PREDICTIVE CAPABILITIES FOR THE PURPOSE OF PERIODIC REVALIDATION OF
17 SUCH INSTRUMENT PURSUANT TO SUBDIVISION FIVE OF THIS SECTION. THE FIRST
18 SUCH STUDY SHALL BE COMPLETED WITHIN TWO YEARS OF THE EFFECTIVE DATE OF
19 THIS SUBDIVISION.
20 Applying these guidelines AND THE VALIDATED RISK ASSESSMENT
21 INSTRUMENT, the board shall within sixty calendar days prior to the
22 discharge, parole, release to post-release supervision or release of a
23 sex offender make a recommendation which shall be confidential and shall
24 not be available for public inspection, to the sentencing court as to
25 whether such sex offender warrants the designation of sexual predator,
26 sexually violent offender, or predicate sex offender as defined in
27 subdivision seven of section one hundred sixty-eight-a of this article.
28 In addition, the guidelines AND SUCH INSTRUMENT shall be applied by the
29 board to make a recommendation to the sentencing court which shall be
30 confidential and shall not be available for public inspection, providing
31 for one of the following three levels of notification depending upon the
32 degree of the risk of re-offense by the sex offender.
33 S 4. Subdivisions 1 and 2 of section 168-n of the correction law,
34 subdivision 1 as amended by chapter 11 of the laws of 2002 and subdivi-
35 sion 2 as amended by chapter 453 of the laws of 1999, are amended to
36 read as follows:
37 1. A determination that an offender is a sexual predator, sexually
38 violent offender, or predicate sex offender as defined in subdivision
39 seven of section one hundred sixty-eight-a of this article shall be made
40 prior to the discharge, parole, release to post-release supervision or
41 release of such offender by the sentencing court applying the guidelines
42 AND RISK ASSESSMENT INSTRUMENT established in subdivision five of
43 section one hundred sixty-eight-l of this article after receiving a
44 recommendation from the board pursuant to section one hundred sixty-
45 eight-l of this article.
46 2. In addition, applying the guidelines AND RISK ASSESSMENT INSTRUMENT
47 established in subdivision five of section one hundred sixty-eight-l of
48 this article, the sentencing court shall also make a determination with
49 respect to the level of notification, after receiving a recommendation
50 from the board pursuant to section one hundred sixty-eight-l of this
51 article. Both determinations of the sentencing court shall be made thir-
52 ty calendar days prior to discharge, parole or release.
53 S 5. This act shall take effect on the one hundred eightieth day after
54 it shall have become a law.
