Amd §§168-d, 168-g, 168-k, 168-l & 168-n, rpld §168-k sub 2, Cor L
Brings the sex offender registration act concerning sex offender classification status into parity with case law as decided by the Federal Court of Appeals, Second Circuit; includes certain due process requirements for a sexual offender classification hearing.
STATE OF NEW YORK
________________________________________________________________________
5925
2019-2020 Regular Sessions
IN ASSEMBLY
February 20, 2019
___________
Introduced by M. of A. ENGLEBRIGHT, ORTIZ, COLTON -- Multi-Sponsored by
-- M. of A. GALEF -- read once and referred to the Committee on
Correction
AN ACT to amend the correction law, in relation to the judicial determi-
nation that an offender is a sex offender or a sexually violent preda-
tor; and to repeal subdivision 2 of section 168-k of such law relating
thereto
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
6 be the duty of the court applying the guidelines established in subdivi-
7 sion five of section one hundred sixty-eight-l of this article to deter-
8 mine the level of notification pursuant to subdivision six of section
9 one hundred sixty-eight-l of this article and whether such sex offender
10 shall be designated a sexual predator, sexually violent offender, or
11 predicate sex offender as defined in subdivision seven of section one
12 hundred sixty-eight-a of this article. At least fifteen days prior to
13 the determination proceeding, the district attorney shall provide to the
14 court and the sex offender a written statement setting forth the deter-
15 minations sought by the district attorney together with the reasons for
16 seeking such determinations. The court shall allow the sex offender to
17 appear and be heard. The state shall appear by the district attorney, or
18 his or her designee, who shall bear the burden of proving the facts
19 supporting the determinations sought by clear and convincing evidence.
20 Where there is a dispute between the parties concerning the determi-
21 nations, the court shall adjourn the hearing as necessary to permit the
22 sex offender or the district attorney to obtain materials relevant to
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD09866-01-9
A. 5925 2
1 the determinations from any state or local facility, hospital, institu-
2 tion, office, agency, department or division. Such materials may be
3 obtained by subpoena if not voluntarily provided to the requesting
4 party. In making the determinations, the court shall review any victim's
5 statement and any relevant materials and evidence submitted by the sex
6 offender and the district attorney and the court may consider reliable
7 hearsay evidence submitted by either party provided that it is relevant
8 to the determinations. Facts previously proven at trial or elicited at
9 the time of entry of a plea of guilty shall be deemed established by
10 clear and convincing evidence and shall not be relitigated. The court
11 shall render an order setting forth its determinations and the findings
12 of fact and conclusions of law on which the determinations are based. A
13 copy of the order shall be submitted by the court to the division. Upon
14 application of either party, the court shall seal any portion of the
15 court file or record which contains material that is confidential under
16 any state or federal statute. Either party may appeal as of right from
17 the order pursuant to the provisions of articles fifty-five, fifty-six
18 and fifty-seven of the civil practice law and rules. Where counsel has
19 been assigned to represent the sex offender upon the ground that the sex
20 offender is financially unable to retain counsel, that assignment shall
21 be continued throughout the pendency of the appeal, and the person may
22 appeal as a poor person pursuant to article eighteen-B of the county
23 law] the board shall make a level of notification recommendation to the
24 court in accordance with section one hundred sixty-eight-l of this arti-
25 cle. Final level of notification determinations by the court shall be
26 made after a classification hearing where in making the determination,
27 the court shall include a review of any victim's statement and any mate-
28 rials submitted by the sex offender. The court shall provide that the
29 offender receive fair written notice of the classification hearing which
30 shall include a statement of the proceeding's purpose, the board's
31 recommendation and ramifications of classification level, and a state-
32 ment of the offender's right to be represented by counsel at the hear-
33 ing. The offender shall have the right to have counsel appointed and for
34 pre-hearing discovery of documentary evidence on which the board's level
35 of notification recommendation was determined. The state must prove the
36 facts supporting any classification determination. The offender shall
37 have the right to appeal a level of notification determination.
38 § 2. Subdivisions 1, 2 and 3 of section 168-g of the correction law,
39 as amended by section 18 of subpart B of part C of chapter 62 of the
40 laws of 2011, are amended to read as follows:
41 1. [The department or office of probation and correctional alterna-
42 tives in accordance with risk factors pursuant to section one hundred
43 sixty-eight-l of this article shall determine the duration of registra-
44 tion and notification for every sex offender who on the effective date
45 of this article is then on community supervision or probation for an
46 offense provided for in subdivision two or three of section one hundred
47 sixty-eight-a of this article] For sex offenders under this section, the
48 board shall make a level of notification recommendation to the court in
49 accordance with section one hundred sixty-eight-l of this article. Final
50 level of notification determinations by the court shall be made after a
51 classification hearing where in making the determination, the court
52 shall include a review of any victim's statement and any materials
53 submitted by the sex offender. The court shall provide that the offen-
54 der receive fair written notice of the classification hearing which
55 shall include a statement of the proceeding's purpose, the board's
56 recommendation and ramifications of classification level, and a state-
A. 5925 3
1 ment of the offender's right to be represented by counsel at the hear-
2 ing. The offender shall have the right to have counsel appointed and for
3 pre-hearing discovery of documentary evidence on which the board's level
4 of notification recommendation was determined. The state must prove the
5 facts supporting any classification determination. The offender shall
6 have a right to appeal a level of notification determination.
7 2. Every sex offender who on the effective date of this article is
8 then on community supervision or probation for an offense provided for
9 in subdivision two or three of section one hundred sixty-eight-a of this
10 article shall within ten calendar days of [such determination] receipt
11 of hearing notification register with his parole or probation officer.
12 On each anniversary of the sex offender's initial registration date
13 thereafter, the provisions of section one hundred sixty-eight-f of this
14 article shall apply. Any sex offender who fails or refuses to so comply
15 shall be subject to the same penalties as otherwise provided for in this
16 article which would be imposed upon a sex offender who fails or refuses
17 to so comply with the provisions of this article on or after such effec-
18 tive date.
19 3. [It] Upon final court level of notification determination it shall
20 be the duty of the [parole or probation officer] court to inform and
21 register such sex offender according to the requirements imposed by this
22 article. [A parole or probation officer] The court shall give one copy
23 of the form to the sex offender and shall, within three calendar days,
24 send two copies electronically or otherwise to the department which
25 shall forward one copy electronically or otherwise to the law enforce-
26 ment agency having jurisdiction where the sex offender resides upon his
27 or her community supervision, probation, or local conditional release.
28 § 3. Subdivision 2 of section 168-k of the correction law is REPEALED
29 and two new subdivisions 2 and 2-a are added to read as follows:
30 2. For sex offenders under this section, the board shall make a level
31 of notification recommendation to the court in accordance with section
32 one hundred sixty-eight-l of this article. Final level of notification
33 determinations by the court shall be made after a classification hearing
34 where in making the determination, the court shall include a review of
35 any victim's statement and any materials submitted by the sex offender.
36 The court shall provide that the offender receive fair written notice of
37 the classification hearing which shall include a statement of the
38 proceeding's purpose, the board's recommendation and ramifications of
39 classification level, and a statement of the offender's right to be
40 represented by counsel at the hearing. The offender shall have the right
41 to have counsel appointed and for pre-hearing discovery of documentary
42 evidence on which the board's level of notification recommendation was
43 determined. The state must prove the facts supporting any classification
44 determination. The offender shall have a right to appeal a level of
45 notification determination.
46 2-a. Upon final court level of notification determination, it shall be
47 the duty of the court to inform and register such sex offender according
48 to the requirements imposed by this article. The court shall give one
49 copy of the form to the sex offender and shall, within three calendar
50 days, send two copies electronically or otherwise to the division which
51 shall forward one copy electronically or otherwise to the law enforce-
52 ment agency having jurisdiction where the sex offender resides upon his
53 parole, probation, or upon any form of state or local conditional
54 release.
A. 5925 4
1 § 4. The opening paragraph of subdivision 6 of section 168-l of the
2 correction law, as amended by chapter 11 of the laws of 2002, is amended
3 to read as follows:
4 Applying these guidelines, the board shall make a recommendation, for
5 offenders who on the effective date of this article were then incarcer-
6 ated, on probation or parole for an offense provided for in subdivision
7 two or three of section one hundred sixty-eight-a of this article, which
8 shall be confidential and shall not be available for public inspection,
9 except for sex offender prehearing discovery, to the sentencing court as
10 to whether such sex offender warrants the designation of sexual preda-
11 tor, sexually violent predator or predicate sex offender. Applying these
12 same guidelines, the board shall within [sixty] ninety calendar days
13 prior to the discharge, parole, release to post-release supervision or
14 release of a sex offender make a recommendation which shall be confiden-
15 tial and shall not be available for public inspection, except for sex
16 offender prehearing discovery, to the sentencing court as to whether
17 such sex offender warrants the designation of sexual predator, sexually
18 violent offender, or predicate sex offender as defined in subdivision
19 seven of section one hundred sixty-eight-a of this article. In addition,
20 the guidelines shall be applied by the board to make a recommendation to
21 the sentencing court which shall be confidential and shall not be avail-
22 able for public inspection, providing for one of the following three
23 levels of notification depending upon the degree of the risk of re-of-
24 fense by the sex offender.
25 § 5. Section 168-n of the correction law, as added by chapter 192 of
26 the laws of 1995, subdivision 1 as amended by chapter 11 of the laws of
27 2002, subdivisions 2 and 5 as amended by chapter 453 of the laws of
28 1999, and subdivision 3 as amended and subdivision 6 as added by chapter
29 684 of the laws of 2005, is amended to read as follows:
30 § 168-n. Judicial determination. 1. [A determination that an offender
31 is a sexual predator, sexually violent offender, or predicate sex offen-
32 der as defined in subdivision seven of section one hundred sixty-eight-a
33 of this article shall be made prior to the discharge, parole, release to
34 post-release supervision or release of such offender by the sentencing
35 court applying the guidelines established in subdivision five of section
36 one hundred sixty-eight-l of this article after receiving a recommenda-
37 tion from the board pursuant to section one hundred sixty-eight-l of
38 this article.
39 2. In addition, applying the guidelines established in subdivision
40 five of section one hundred sixty-eight-l of this article, the sentenc-
41 ing court shall also make a determination with respect to the level of
42 notification, after receiving a recommendation from the board pursuant
43 to section one hundred sixty-eight-l of this article. Both determi-
44 nations of the sentencing court shall be made thirty calendar days prior
45 to discharge, parole or release.
46 3. No later than thirty days prior to the board's recommendation, the
47 sex offender shall be notified that his or her case is under review and
48 that he or she is permitted to submit to the board any information rele-
49 vant to the review. Upon receipt of the board's recommendation, the
50 sentencing court shall determine whether the sex offender was previously
51 found to be eligible for assigned counsel in the underlying case. Where
52 such a finding was previously made, the court shall assign counsel to
53 represent the offender, pursuant to article eighteen-B of the county
54 law. At least twenty days prior to the determination proceeding, the
55 sentencing court shall notify the district attorney, the sex offender
56 and the sex offender's counsel, in writing, of the date of the determi-
A. 5925 5
1 nation proceeding and shall also provide the district attorney, the sex
2 offender and the sex offender's counsel with a copy of the recommenda-
3 tion received from the board and any statement of the reasons for the
4 recommendation received from the board. This notice shall include the
5 following statement or a substantially similar statement: "This
6 proceeding is being held to determine whether you will be classified as
7 a level 3 offender (risk of repeat offense is high), a level 2 offender
8 (risk of repeat offense is moderate), or a level 1 offender (risk of
9 repeat offense is low), or whether you will be designated as a sexual
10 predator, a sexually violent offender or a predicate sex offender, which
11 will determine how long you must register as a sex offender and how much
12 information can be provided to the public concerning your registration.
13 If you fail to appear at this proceeding, without sufficient excuse, it
14 shall be held in your absence. Failure to appear may result in a longer
15 period of registration or a higher level of community notification
16 because you are not present to offer evidence or contest evidence
17 offered by the district attorney." The written notice to the sex offen-
18 der shall also advise the offender that he or she has a right to a hear-
19 ing prior to the court's determination, and that he or she has the right
20 to be represented by counsel at the hearing. If counsel has been
21 assigned to represent the offender at the determination proceeding, the
22 notice shall also provide the name, address and telephone number of the
23 assigned counsel. Where counsel has not been assigned, the notice shall
24 advise the sex offender that counsel will be appointed if he or she is
25 financially unable to retain counsel, and a returnable form shall be
26 enclosed in the court's notice to the sex offender on which the sex
27 offender may apply for assignment of counsel. If the sex offender
28 applies for assignment of counsel and the court finds that the offender
29 is financially unable to retain counsel, the court shall assign counsel
30 to represent the sex offender pursuant to article eighteen-B of the
31 county law. If the district attorney seeks a determination that differs
32 from the recommendation submitted by the board, at least ten days prior
33 to the determination proceeding the district attorney shall provide to
34 the court and the sex offender a statement setting forth the determi-
35 nations sought by the district attorney together with the reasons for
36 seeking such determinations. The court shall allow the sex offender to
37 appear and be heard. The state shall appear by the district attorney, or
38 his or her designee, who shall bear the burden of proving the facts
39 supporting the determinations sought by clear and convincing evidence.
40 Where there is a dispute between the parties concerning the determi-
41 nations, the court shall adjourn the hearing as necessary to permit the
42 sex offender or the district attorney to obtain materials relevant to
43 the determinations from the state board of examiners of sex offenders or
44 any state or local facility, hospital, institution, office, agency,
45 department or division. Such materials may be obtained by subpoena if
46 not voluntarily provided to the requesting party. In making the determi-
47 nations the court shall review any victim's statement and any relevant
48 materials and evidence submitted by the sex offender and the district
49 attorney and the recommendation and any materials submitted by the
50 board, and may consider reliable hearsay evidence submitted by either
51 party, provided that it is relevant to the determinations. Facts previ-
52 ously proven at trial or elicited at the time of entry of a plea of
53 guilty shall be deemed established by clear and convincing evidence and
54 shall not be relitigated. The court shall render an order setting forth
55 its determinations and the findings of fact and conclusions of law on
56 which the determinations are based. A copy of the order shall be submit-
A. 5925 6
1 ted by the court to the division. Upon application of either party, the
2 court shall seal any portion of the court file or record which contains
3 material that is confidential under any state or federal statute. Either
4 party may appeal as of right from the order pursuant to the provisions
5 of articles fifty-five, fifty-six and fifty-seven of the civil practice
6 law and rules. Where counsel has been assigned to represent the sex
7 offender upon the ground that the sex offender is financially unable to
8 retain counsel, that assignment shall be continued throughout the
9 pendency of the appeal, and the person may appeal as a poor person
10 pursuant to article eighteen-B of the county law] The board shall make a
11 recommendation to the court as to whether an offender is a sex offender,
12 a sexual predator, a sexually violent predator or a predicate sex offen-
13 der pursuant to section one hundred sixty-eight-l of this article. The
14 board shall make a level of notification recommendation to the court in
15 accordance with section one hundred sixty-eight-l of this article. Final
16 level of notification determinations by the court shall be made prior to
17 the offender's discharge, parole or release and after a classification
18 hearing where in making the determination, the court shall include a
19 review of any victim's statement and any materials submitted by the sex
20 offender. The court shall provide that the offender receive fair written
21 notice of the classification hearing which shall include a statement of
22 the proceeding's purpose, the board's recommendation and ramifications
23 of classification level, and a statement of the offender's right to be
24 represented by counsel at the hearing. The offender shall have the right
25 to have counsel appointed and for pre-hearing discovery of documentary
26 evidence on which the board's level of notification recommendation was
27 determined. The state must prove the facts supporting any classification
28 determination. The offender shall have a right to appeal a level of
29 notification determination.
30 [4.] 2. Upon determination that the risk of repeat offense and threat
31 to public safety is high, the sentencing court shall also notify the
32 division of such fact for the purposes of section one hundred sixty-
33 eight-q of this article.
34 [5.] 3. Upon the reversal of a conviction of a sexual offense defined
35 in paragraphs (a) and (b) of subdivision two or three of section one
36 hundred sixty-eight-a of this article, the appellate court shall remand
37 the case to the lower court for entry of an order directing the expunge-
38 ment of any records required to be kept [herein] pursuant to this arti-
39 cle.
40 [6.] 4. If a sex offender, having been given notice, including the
41 time and place of the determination proceeding in accordance with this
42 section, fails to appear at this proceeding, without sufficient excuse,
43 the court shall conduct the hearing and make the determinations in the
44 manner set forth in subdivision [three] one of this section.
45 § 6. This act shall take effect immediately.
