Gunther, Rivera N, Miller M, Castro, Raia, Hooper, Colton
MLTSPNSR
Ceretto, McKevitt
Amd SS168-d, 168-f, 168-k, 168-n & 168-t, Cor L
Expands the statement of notice of a registration determination hearing to be given to a sex offender to include notice of the right to counsel and that the failure to appear shall be a violation of the sex offender registration act; removes the proof of residence exception for failure to mail the signed verification form; makes all violations of the sex offender registration act class D felonies.
STATE OF NEW YORK
________________________________________________________________________
4869
2011-2012 Regular Sessions
IN ASSEMBLY
February 8, 2011
___________
Introduced by M. of A. SIMOTAS -- read once and referred to the Commit-
tee on Correction
AN ACT to amend the correction law, in relation to notice to sex offen-
ders of their determination hearing and the penalty for violations by
sex offenders
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subdivisions 2 and 4 of section 168-d of the correction
2 law, subdivision 2 as amended and subdivision 4 as added by chapter 684
3 of the laws of 2005, are amended to read as follows:
4 2. Any sex offender, who is released on probation or discharged upon
5 payment of a fine, conditional discharge or unconditional discharge
6 shall, prior to such release or discharge, be informed of his or her
7 duty to register under this article by the court in which he or she was
8 convicted. At the time sentence is imposed, such sex offender shall
9 register with the division on a form prepared by the division. The court
10 shall require the sex offender to read and sign such form and to
11 complete the registration portion of such form. The court shall on such
12 form obtain the address where the sex offender expects to reside upon
13 his or her release, and the name and address of any institution of high-
14 er education he or she expects to be employed by, enrolled in, attending
15 or employed, whether for compensation or not, and whether he or she
16 expects to reside in a facility owned or operated by such an institu-
17 tion, and shall report such information to the division. The court shall
18 give one copy of the form to the sex offender and shall send two copies
19 to the division which shall forward the information to the law enforce-
20 ment agencies having jurisdiction. The court shall also notify the
21 district attorney and the sex offender of the date of the determination
22 proceeding to be held pursuant to subdivision three of this section,
23 which shall be held at least forty-five days after such notice is given.
24 [This] The notice to the sex offender shall include the following state-
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD06168-01-1
A. 4869 2
1 ment [or a substantially similar statement]: "This proceeding is being
2 held to determine whether you will be classified as a level 3 offender
3 (risk of repeat offense is high), a level 2 offender (risk of repeat
4 offense is moderate), or a level 1 offender (risk of repeat offense is
5 low), or whether you will be designated as a sexual predator, a sexually
6 violent offender or a predicate sex offender, which will determine how
7 long you must register as a sex offender and how much information can be
8 provided to the public concerning your registration. You have a right to
9 a hearing before the court makes these determinations. You have a right
10 to be represented by counsel at that hearing. Counsel will be provided
11 if you are financially unable to retain counsel. Failure to appear at
12 the hearing is a violation of this article. If you fail to appear at
13 this proceeding, [without sufficient excuse,] it shall be held in your
14 absence. Failure to appear may result in a longer period of registration
15 or a higher level of community notification because you are not present
16 to offer evidence or contest evidence offered by the district attorney."
17 [The court shall also advise the sex offender that he or she has a right
18 to a hearing prior to the court's determination, that he or she has the
19 right to be represented by counsel at the hearing and that counsel will
20 be appointed if he or she is financially unable to retain counsel.] If
21 the sex offender applies for assignment of counsel to represent him or
22 her at the hearing and counsel was not previously assigned to represent
23 the sex offender in the underlying criminal action, the court shall
24 determine whether the offender is financially unable to retain counsel.
25 If such a finding is made, the court shall assign counsel to represent
26 the sex offender pursuant to article eighteen-B of the county law. Where
27 the court orders a sex offender released on probation, such order must
28 include a provision requiring that he or she comply with the require-
29 ments of this article. Where such sex offender violates such provision,
30 probation may be immediately revoked in the manner provided by article
31 four hundred ten of the criminal procedure law.
32 4. If a sex offender, having been given notice of the determination
33 proceeding, including the time and place [of the determination proceed-
34 ing] thereof in accordance with this section, fails to appear and be
35 heard at [this] such proceeding, [without sufficient excuse,] the court
36 shall conduct the hearing and make the determinations in the manner set
37 forth in subdivision three of this section.
38 § 2. Section 168-f of the correction law is amended by adding a new
39 subdivision 1-a to read as follows:
40 1-a. Each sex offender shall appear at the determination proceeding,
41 set forth in subdivision three of section one hundred sixty-eight-d of
42 this article, subdivision two of section one hundred sixty-eight-k of
43 this article or subdivision three of section one hundred sixty-eight-n
44 of this article, held to determine the level of notification and whether
45 such sex offender shall be designated a sexual predator, sexually
46 violent offender, or predicate sex offender.
47 § 3. Paragraph (c) of subdivision 2 of section 168-f of the correction
48 law, as amended by chapter 453 of the laws of 1999, is amended to read
49 as follows:
50 (c) If the sex offender fails to mail the signed verification form to
51 the division within ten calendar days after receipt of the form, he or
52 she shall be in violation of this [section unless he proves that he or
53 she has not changed his or her residence address] article.
54 § 4. Subdivisions 2 and 4 of section 168-k of the correction law,
55 subdivision 2 as amended and subdivision 4 as added by chapter 684 of
56 the laws of 2005, are amended to read as follows:
A. 4869 3
1 2. The division shall advise the board that the sex offender has
2 established residence in this state. The board shall determine whether
3 the sex offender is required to register with the division. If it is
4 determined that the sex offender is required to register, the division
5 shall notify the sex offender of his or her duty to register under this
6 article and shall require the sex offender to sign a form as may be
7 required by the division acknowledging that the duty to register and the
8 procedure for registration has been explained to the sex offender. The
9 division shall obtain on such form the address where the sex offender
10 expects to reside within the state and the sex offender shall retain one
11 copy of the form and send two copies to the division which shall provide
12 the information to the law enforcement agency having jurisdiction where
13 the sex offender expects to reside within this state. No later than
14 thirty days prior to the board making a recommendation, the sex offender
15 shall be notified that his or her case is under review and that he or
16 she is permitted to submit to the board any information relevant to the
17 review. After reviewing any information obtained, and applying the
18 guidelines established in subdivision five of section one hundred
19 sixty-eight-l of this article, the board shall within sixty calendar
20 days make a recommendation regarding the level of notification pursuant
21 to subdivision six of section one hundred sixty-eight-l of this article
22 and whether such sex offender shall be designated a sexual predator,
23 sexually violent offender, or predicate sex offender as defined in
24 subdivision seven of section one hundred sixty-eight-a of this article.
25 This recommendation shall be confidential and shall not be available for
26 public inspection. It shall be submitted by the board to the county
27 court or supreme court and to the district attorney in the county of
28 residence of the sex offender and to the sex offender. It shall be the
29 duty of the county court or supreme court in the county of residence of
30 the sex offender, applying the guidelines established in subdivision
31 five of section one hundred sixty-eight-l of this article, to determine
32 the level of notification pursuant to subdivision six of section one
33 hundred sixty-eight-l of this article and whether such sex offender
34 shall be designated a sexual predator, sexually violent offender, or
35 predicate sex offender as defined in subdivision seven of section one
36 hundred sixty-eight-a of this article. At least thirty days prior to the
37 determination proceeding, such court shall notify the district attorney
38 and the sex offender, in writing, of the date of the determination
39 proceeding and the court shall also provide the district attorney and
40 sex offender with a copy of the recommendation received from the board
41 and any statement of the reasons for the recommendation received from
42 the board. [This] The notice to the sex offender shall include the
43 following statement [or a substantially similar statement]: "This
44 proceeding is being held to determine whether you will be classified as
45 a level 3 offender (risk of repeat offense is high), a level 2 offender
46 (risk of repeat offense is moderate), or a level 1 offender (risk of
47 repeat offense is low), or whether you will be designated as a sexual
48 predator, a sexually violent offender or a predicate sex offender, which
49 will determine how long you must register as a sex offender and how much
50 information can be provided to the public concerning your registration.
51 You have a right to a hearing before the court makes these determi-
52 nations. You have a right to be represented by counsel at that hearing.
53 Counsel will be provided if you are financially unable to retain coun-
54 sel. Failure to appear at the hearing is a violation of this article. If
55 you fail to appear at this proceeding, [without sufficient excuse,] it
56 shall be held in your absence. Failure to appear may result in a longer
A. 4869 4
1 period of registration or a higher level of community notification
2 because you are not present to offer evidence or contest evidence
3 offered by the district attorney." [The court shall also advise the sex
4 offender that he or she has a right to a hearing prior to the court's
5 determination, that he or she has the right to be represented by counsel
6 at the hearing and that counsel will be appointed if he or she is finan-
7 cially unable to retain counsel.] A returnable form shall be enclosed in
8 the court's notice to the sex offender on which the sex offender may
9 apply for assignment of counsel. If the sex offender applies for
10 assignment of counsel and the court finds that the offender is finan-
11 cially unable to retain counsel, the court shall assign counsel to
12 represent the sex offender pursuant to article eighteen-B of the county
13 law. If the district attorney seeks a determination that differs from
14 the recommendation submitted by the board, at least ten days prior to
15 the determination proceeding the district attorney shall provide to the
16 court and the sex offender a statement setting forth the determinations
17 sought by the district attorney together with the reasons for seeking
18 such determinations. The court shall allow the sex offender to appear
19 and be heard. The state shall appear by the district attorney, or his or
20 her designee, who shall bear the burden of proving the facts supporting
21 the determinations sought by clear and convincing evidence. It shall be
22 the duty of the court applying the guidelines established in subdivision
23 five of section one hundred sixty-eight-l of this article to determine
24 the level of notification pursuant to subdivision six of section one
25 hundred sixty-eight-l of this article and whether such sex offender
26 shall be designated a sexual predator, sexually violent offender, or
27 predicate sex offender as defined in subdivision seven of section one
28 hundred sixty-eight-a of this article. Where there is a dispute between
29 the parties concerning the determinations, the court shall adjourn the
30 hearing as necessary to permit the sex offender or the district attorney
31 to obtain materials relevant to the determinations from the state board
32 of examiners of sex offenders or any state or local facility, hospital,
33 institution, office, agency, department or division. Such materials may
34 be obtained by subpoena if not voluntarily provided to the requesting
35 party. In making the determinations the court shall review any victim's
36 statement and any relevant materials and evidence submitted by the sex
37 offender and the district attorney and the recommendation and any mate-
38 rial submitted by the board, and may consider reliable hearsay evidence
39 submitted by either party, provided that it is relevant to the determi-
40 nations. If available, facts proven at trial or elicited at the time of
41 a plea of guilty shall be deemed established by clear and convincing
42 evidence and shall not be relitigated. The court shall render an order
43 setting forth its determinations and the findings of fact and conclu-
44 sions of law on which the determinations are based. A copy of the order
45 shall be submitted by the court to the division. Upon application of
46 either party, the court shall seal any portion of the court file or
47 record which contains material that is confidential under any state or
48 federal statute. Either party may appeal as of right from the order
49 pursuant to the provisions of articles fifty-five, fifty-six and fifty-
50 seven of the civil practice law and rules. Where counsel has been
51 assigned to represent the sex offender upon the ground that the sex
52 offender is financially unable to retain counsel, that assignment shall
53 be continued throughout the pendency of the appeal, and the person may
54 appeal as a poor person pursuant to article eighteen-B of the county
55 law.
A. 4869 5
1 4. If a sex offender, having been given notice of the determination
2 proceeding, including the time and place [of the determination proceed-
3 ing] thereof in accordance with this section, fails to appear and be
4 heard at [this] such proceeding, [without sufficient excuse,] the court
5 shall conduct the hearing and make the determinations in the manner set
6 forth in subdivision two of this section.
7 § 5. Subdivisions 3 and 6 of section 168-n of the correction law,
8 subdivision 3 as amended and subdivision 6 as added by chapter 684 of
9 the laws of 2005, are amended to read as follows:
10 3. No later than thirty days prior to the board's recommendation, the
11 sex offender shall be notified that his or her case is under review and
12 that he or she is permitted to submit to the board any information rele-
13 vant to the review. Upon receipt of the board's recommendation, the
14 sentencing court shall determine whether the sex offender was previously
15 found to be eligible for assigned counsel in the underlying case. Where
16 such a finding was previously made, the court shall assign counsel to
17 represent the offender, pursuant to article eighteen-B of the county
18 law. At least twenty days prior to the determination proceeding, the
19 sentencing court shall notify the district attorney, the sex offender
20 and the sex offender's counsel, in writing, of the date of the determi-
21 nation proceeding and shall also provide the district attorney, the sex
22 offender and the sex offender's counsel with a copy of the recommenda-
23 tion received from the board and any statement of the reasons for the
24 recommendation received from the board. [This] The notice to the sex
25 offender shall include the following statement [or a substantially simi-
26 lar statement]: "This proceeding is being held to determine whether you
27 will be classified as a level 3 offender (risk of repeat offense is
28 high), a level 2 offender (risk of repeat offense is moderate), or a
29 level 1 offender (risk of repeat offense is low), or whether you will be
30 designated as a sexual predator, a sexually violent offender or a predi-
31 cate sex offender, which will determine how long you must register as a
32 sex offender and how much information can be provided to the public
33 concerning your registration. You have a right to a hearing before the
34 court makes these determinations. You have a right to be represented by
35 counsel at that hearing. Counsel will be provided if you are financially
36 unable to retain counsel. Failure to appear at the hearing is a
37 violation of this article. If you fail to appear at this proceeding,
38 [without sufficient excuse,] it shall be held in your absence. Failure
39 to appear may result in a longer period of registration or a higher
40 level of community notification because you are not present to offer
41 evidence or contest evidence offered by the district attorney." [The
42 written notice to the sex offender shall also advise the offender that
43 he or she has a right to a hearing prior to the court's determination,
44 and that he or she has the right to be represented by counsel at the
45 hearing.] If counsel has been assigned to represent the offender at the
46 determination proceeding, the notice shall also provide the name,
47 address and telephone number of the assigned counsel. Where counsel has
48 not been assigned, [the notice shall advise the sex offender that coun-
49 sel will be appointed if he or she is financially unable to retain coun-
50 sel, and] a returnable form shall be enclosed in the court's notice to
51 the sex offender on which the sex offender may apply for assignment of
52 counsel. If the sex offender applies for assignment of counsel and the
53 court finds that the offender is financially unable to retain counsel,
54 the court shall assign counsel to represent the sex offender pursuant to
55 article eighteen-B of the county law. If the district attorney seeks a
56 determination that differs from the recommendation submitted by the
A. 4869 6
1 board, at least ten days prior to the determination proceeding the
2 district attorney shall provide to the court and the sex offender a
3 statement setting forth the determinations sought by the district attor-
4 ney together with the reasons for seeking such determinations. The court
5 shall allow the sex offender to appear and be heard. The state shall
6 appear by the district attorney, or his or her designee, who shall bear
7 the burden of proving the facts supporting the determinations sought by
8 clear and convincing evidence. Where there is a dispute between the
9 parties concerning the determinations, the court shall adjourn the hear-
10 ing as necessary to permit the sex offender or the district attorney to
11 obtain materials relevant to the determinations from the state board of
12 examiners of sex offenders or any state or local facility, hospital,
13 institution, office, agency, department or division. Such materials may
14 be obtained by subpoena if not voluntarily provided to the requesting
15 party. In making the determinations the court shall review any victim's
16 statement and any relevant materials and evidence submitted by the sex
17 offender and the district attorney and the recommendation and any mate-
18 rials submitted by the board, and may consider reliable hearsay evidence
19 submitted by either party, provided that it is relevant to the determi-
20 nations. Facts previously proven at trial or elicited at the time of
21 entry of a plea of guilty shall be deemed established by clear and
22 convincing evidence and shall not be relitigated. The court shall render
23 an order setting forth its determinations and the findings of fact and
24 conclusions of law on which the determinations are based. A copy of the
25 order shall be submitted by the court to the division. Upon application
26 of either party, the court shall seal any portion of the court file or
27 record which contains material that is confidential under any state or
28 federal statute. Either party may appeal as of right from the order
29 pursuant to the provisions of articles fifty-five, fifty-six and fifty-
30 seven of the civil practice law and rules. Where counsel has been
31 assigned to represent the sex offender upon the ground that the sex
32 offender is financially unable to retain counsel, that assignment shall
33 be continued throughout the pendency of the appeal, and the person may
34 appeal as a poor person pursuant to article eighteen-B of the county
35 law.
36 6. If a sex offender, having been given notice of the determination
37 proceeding, including the time and place [of the determination proceed-
38 ing] thereof in accordance with this section, fails to appear and be
39 heard at [this] such proceeding, [without sufficient excuse,] the court
40 shall conduct the hearing and make the determinations in the manner set
41 forth in subdivision three of this section.
42 § 6. Section 168-t of the correction law, as amended by chapter 373 of
43 the laws of 2007, is amended to read as follows:
44 § 168-t. [Penalty] Failure to register, appear at the determination
45 proceeding, annually verify, personally verify, notify of status at an
46 institution of higher education, notify of address change or change of
47 status at an institution of higher education, notify of establishment of
48 residence in state, or comply with the prohibition of employment on
49 motor vehicles engaged in retail sale of frozen desserts; penalty. 1.
50 Any sex offender required to register [or to verify] pursuant to the
51 provisions of this article [who fails to register or verify in the
52 manner and within the time periods provided for in this article shall
53 be] is guilty of [a class E felony upon conviction for the first
54 offense, and upon conviction for a second or subsequent offense shall be
55 guilty of] failure to register, appear at the determination proceeding,
56 annually verify, personally verify, notify of status at an institution
A. 4869 7
1 of higher education, notify of address change or change of status at an
2 institution of higher education, notify of establishment of residence in
3 state, or comply with the prohibition of employment on motor vehicles
4 engaged in the retail sale of frozen desserts when he or she:
5 (a) Fails to register with the division on a form prepared by the
6 division (i) at least ten calendar days prior to discharge, parole,
7 release to post-release supervision or release from any state or local
8 correctional facility, hospital or institution where he or she was
9 confined or committed, or (ii) at the time sentence is imposed for any
10 sex offender released on probation or discharged upon payment of a fine,
11 conditional discharge or unconditional discharge, or (iii) upon the
12 division's request following a determination by the board that the
13 offender is required to register pursuant to subdivision two of section
14 one hundred sixty-eight-k of this article; or
15 (b) Fails to appear at the determination proceeding, set forth in
16 subdivision three of section one hundred sixty-eight-d of this article,
17 subdivision two of section one hundred sixty-eight-k of this article or
18 subdivision three of section one hundred sixty-eight-n of this article,
19 held to determine the level of notification and whether such sex offen-
20 der shall be designated a sexual predator, sexually violent offender, or
21 predicate sex offender; or
22 (c) Fails to sign and return to the division the annual verification
23 form mailed by the division to his or her last reported address pursuant
24 to section one hundred sixty-eight-b of this article within ten calendar
25 days after receipt of the form; or
26 (d) Fails to personally verify his or her address with the local law
27 enforcement agency every ninety calendar days after the date of release
28 or commencement of parole or post-release supervision, or probation, or
29 release on payment of a fine, conditional discharge or unconditional
30 discharge after having been given a level three designation or having
31 been designated a sexual predator; or
32 (e) Fails to provide the division with the name and address of any
33 institution of higher education he or she expects to be employed by,
34 enrolled in, attending or employed at, whether for compensation or not,
35 and whether he or she expects to reside in a facility owned or operated
36 by such an institution; or
37 (f) Fails to notify the division no later than ten calendar days after
38 any change of address; or
39 (g) Fails to notify the division no later than ten calendar days after
40 any change of status at an institution of higher education; or
41 (h) Fails to notify the division within ten calendar days after estab-
42 lishing residence in this state in the case of a sex offender who has
43 been convicted of an offense which requires registration under paragraph
44 (d) of subdivision two of section one hundred sixty-eight-a of this
45 article or paragraph (b) of subdivision three of section one hundred
46 sixty-eight-a of this article; or
47 (i) Violates the provisions of section one hundred sixty-eight-v of
48 this article.
49 2. Failure to register, appear at the determination proceeding, annu-
50 ally verify, personally verify, notify of status at an institution of
51 higher education, notify of address change or change of status at an
52 institution of higher education, notify of establishment of residence in
53 state, or comply with the prohibition of employment on motor vehicles
54 engaged in the retail sale of frozen desserts is a class D felony. [Any
55 sex offender who violates the provisions of section one hundred sixty-
56 eight-v of this article shall be guilty of a class A misdemeanor upon
A. 4869 8
1 conviction for the first offense, and upon conviction for a second or
2 subsequent offense shall be guilty of a class D felony.]
3 3. Any such failure [to register or verify] may also be the basis for
4 revocation of parole pursuant to section two hundred fifty-nine-i of the
5 executive law or the basis for revocation of probation pursuant to arti-
6 cle four hundred ten of the criminal procedure law.
7 § 7. This act shall take effect immediately.
