Requires sex offenders, regardless of their classification, to annually register with the division of criminal justice service for life; eliminates the ability of level 2 sex offenders to petition for relief from registering in the future after having been registered for 30 years.
STATE OF NEW YORK
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5435
2009-2010 Regular Sessions
IN ASSEMBLY
February 13, 2009
___________
Introduced by M. of A. GIANARIS, HOYT, BENEDETTO, DESTITO, CUSICK, KOON,
LAVINE, WEISENBERG, SCHIMMINGER, DelMONTE, FIELDS, SCHROEDER, BENJA-
MIN, MAYERSOHN, SPANO, GABRYSZAK -- Multi-Sponsored by -- M. of A.
ABBATE, BOYLAND, DIAZ, PHEFFER, REILLY -- read once and referred to
the Committee on Correction
AN ACT to amend the correction law, in relation to requiring sex offen-
ders to register for life and eliminating the petition for relief
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 168-h of the correction law, as amended by chapter
2 11 of the laws of 2002, subdivisions 1 and 2 as amended by chapter 1 of
3 the laws of 2006, is amended to read as follows:
4 § 168-h. Duration of registration and verification. 1. The duration of
5 registration and verification for a sex offender [who has not been
6 designated a sexual predator, or a sexually violent offender, or a pred-
7 icate sex offender, and who is classified as a level one risk, or who
8 has not yet received a risk level classification,] shall be annually for
9 [a period of twenty years from the initial date of registration] life.
10 2. [The duration of registration and verification for a sex offender
11 who, on or after March eleventh, two thousand two, is designated a sexu-
12 al predator, or a sexually violent offender, or a predicate sex offen-
13 der, or who is classified as a level two or level three risk, shall be
14 annually for life. Notwithstanding the foregoing, a sex offender who is
15 classified as a level two risk and who is not designated a sexual preda-
16 tor, a sexually violent offender or a predicate sex offender, may be
17 relieved of the duty to register and verify as provided by subdivision
18 one of section one hundred sixty-eight-o of this article.
19 3.] Any sex offender having been designated a level three risk or a
20 sexual predator shall also personally verify his or her address every
21 ninety calendar days with the local law enforcement agency having juris-
22 diction where the offender resides.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD05854-01-9
A. 5435 2
1 § 2. Section 168-o of the correction law, as amended by chapter 453 of
2 the laws of 1999, subdivision 1 as amended by chapter 1 of the laws of
3 2006, subdivisions 2 and 3 as amended by chapter 11 of the laws of 2002,
4 is amended to read as follows:
5 § 168-o. Petition for relief or modification. 1. [Any sex offender who
6 is classified as a level two risk, and who has not been designated a
7 sexual predator, or a sexually violent offender, or a predicate sex
8 offender, who is required to register or verify pursuant to this article
9 and who has been registered for a minimum period of thirty years may be
10 relieved of any further duty to register upon the granting of a petition
11 for relief by the sentencing court or by the court which made the deter-
12 mination regarding duration of registration and level of notification.
13 The sex offender shall bear the burden of proving by clear and convinc-
14 ing evidence that his or her risk of repeat offense and threat to public
15 safety is such that registration or verification is no longer necessary.
16 Such petition, if granted, shall not relieve the petitioner of the duty
17 to register pursuant to this article upon conviction of any offense
18 requiring registration in the future. Such a petition shall not be
19 considered more than once every two years. In the event that the sex
20 offender's petition for relief is granted, the district attorney may
21 appeal as of right from the order pursuant to the provisions of articles
22 fifty-five, fifty-six and fifty-seven of the civil practice law and
23 rules. Where counsel has been assigned to represent the sex offender
24 upon the ground that the sex offender is financially unable to retain
25 counsel, that assignment shall be continued throughout the pendency of
26 the appeal, and the person may appeal as a poor person pursuant to arti-
27 cle eighteen-B of the county law.
28 2.] Any sex offender required to register or verify pursuant to this
29 article may petition the sentencing court or the court which made the
30 determination regarding the level of notification for an order modifying
31 the level of notification. The petition shall set forth the level of
32 notification sought, together with the reasons for seeking such determi-
33 nation. The sex offender shall bear the burden of proving the facts
34 supporting the requested modification by clear and convincing evidence.
35 Such a petition shall not be considered more than annually. In the event
36 that the sex offender's petition to modify the level of notification is
37 granted, the district attorney may appeal as of right from the order
38 pursuant to the provisions of articles fifty-five, fifty-six and fifty-
39 seven of the civil practice law and rules. Where counsel has been
40 assigned to represent the sex offender upon the ground that the sex
41 offender is financially unable to retain counsel, that assignment shall
42 be continued throughout the pendency of the appeal, and the person may
43 appeal as a poor person pursuant to article eighteen-B of the county
44 law.
45 [3.] 2. The district attorney may file a petition to modify the level
46 of notification for a sex offender with the sentencing court or with the
47 court which made the determination regarding the level of notification
48 or with any court in which the sex offender has been convicted of a new
49 crime, where the sex offender (a) has been convicted of a new crime, or
50 there has been a determination after a proceeding pursuant to section
51 410.70 of the criminal procedure law or section two hundred fifty-nine-i
52 of the executive law that the sex offender has violated one or more
53 conditions imposed as part of a sentence of a conditional discharge,
54 probation, parole or post-release supervision for a designated crime,
55 and (b) the conduct underlying the new crime or the violation is of a
56 nature that indicates an increased risk of a repeat sex offense. The
A. 5435 3
1 petition shall set forth the level of notification sought, together with
2 the reasons for seeking such determination. The district attorney shall
3 bear the burden of proving the facts supporting the requested modifica-
4 tion, by clear and convincing evidence. In the event that the district
5 attorney's petition is granted, the sex offender may appeal as of right
6 from the order, pursuant to the provisions of articles fifty-five,
7 fifty-six and fifty-seven of the civil practice law and rules. Where
8 counsel has been assigned to represent the offender upon the ground that
9 he or she is financially unable to retain counsel, that assignment shall
10 be continued throughout the pendency of the appeal, and the person may
11 proceed as a poor person, pursuant to article eighteen-B of the county
12 law.
13 [4.] 3. Upon receipt of a petition submitted pursuant to subdivision
14 one[,] or two [or three] of this section, the court shall forward a copy
15 of the petition to the board and request an updated recommendation
16 pertaining to the sex offender and shall provide a copy of the petition
17 to the other party. The court shall also advise the sex offender that
18 he or she has the right to be represented by counsel at the hearing and
19 counsel will be appointed if he or she is financially unable to retain
20 counsel. A returnable form shall be enclosed in the court's notice to
21 the sex offender on which the sex offender may apply for assignment of
22 counsel. If the sex offender applies for assignment of counsel and the
23 court finds that the offender is financially unable to retain counsel,
24 the court shall assign counsel to represent the offender, pursuant to
25 article eighteen-B of the county law. Where the petition was filed by a
26 district attorney, at least thirty days prior to making an updated
27 recommendation the board shall notify the sex offender and his or her
28 counsel that the offender's case is under review and he or she is
29 permitted to submit to the board any information relevant to the review.
30 The board's updated recommendation on the sex offender shall be confi-
31 dential and shall not be available for public inspection. After receiv-
32 ing an updated recommendation from the board concerning a sex offender,
33 the court shall, at least thirty days prior to ruling upon the petition,
34 provide a copy of the updated recommendation to the sex offender, the
35 sex offender's counsel and the district attorney and notify them, in
36 writing, of the date set by the court for a hearing on the petition.
37 After reviewing the recommendation received from the board and any rele-
38 vant materials and evidence submitted by the sex offender and the
39 district attorney, the court may grant or deny the petition. The court
40 may also consult with the victim prior to making a determination on the
41 petition. The court shall render an order setting forth its determi-
42 nation, and the findings of fact and conclusions of law on which the
43 determination is based. If the petition is granted, it shall be the
44 obligation of the court to submit a copy of its order to the division.
45 Upon application of either party, the court shall seal any portion of
46 the court file or record which contains material that is confidential
47 under any state or federal statute.
48 § 3. This act shall take effect immediately and shall apply to all sex
49 offenders registered or required to register immediately prior to the
50 effective date of this act, or who are required to register on or after
51 such date.
