A06072 Summary:

BILL NOA06072
 
SAME ASNo Same As
 
SPONSORReilly
 
COSPNSR
 
MLTSPNSR
 
Add Art 6-D 169 - 169-w, Cor L
 
Relates to establishing the drug dealer registration act.
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A06072 Actions:

BILL NOA06072
 
02/26/2019referred to correction
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A06072 Committee Votes:

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A06072 Floor Votes:

There are no votes for this bill in this legislative session.
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A06072 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          6072
 
                               2019-2020 Regular Sessions
 
                   IN ASSEMBLY
 
                                    February 26, 2019
                                       ___________
 
        Introduced by M. of A. REILLY -- read once and referred to the Committee
          on Correction
 
        AN  ACT  to  amend  the correction law, in relation to creating the drug
          dealer registration act
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:

     1    Section  1.  The correction law is amended by adding a new article 6-D
     2  to read as follows:
     3                                 ARTICLE 6-D
     4                        DRUG DEALER REGISTRATION ACT
     5  Section 169.   Short title.
     6          169-a. Definitions.
     7          169-b. Duties of the division; registration information.
     8          169-c. Drug dealer; relocation; notification.
     9          169-d. Duties of the court.
    10          169-e. Discharge of  drug  dealer  from  correctional  facility;
    11                   duties of official in charge.
    12          169-f. Duty to register and to verify.
    13          169-g. Prior convictions; duty to inform and register.
    14          169-h. Duration of registration and verification.
    15          169-i. Registration and verification requirements.
    16          169-j. Notification  of local law enforcement agencies of change
    17                   of address.
    18          169-k. Registration for change of address from another state.
    19          169-l. Board of examiners of drug dealers.
    20          169-m. Review.
    21          169-n. Judicial determination.
    22          169-o. Petition for relief or modification.
    23          169-p. Special telephone number.
    24          169-q. Subdirectory; internet posting.
    25          169-r. Immunity from liability.
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD09884-01-9

        A. 6072                             2
 
     1          169-s. Annual report.
     2          169-t. Penalty.
     3          169-u. Unauthorized release of information.
     4          169-v. Prohibition  of  employment  on motor vehicles engaged in
     5                   retail sales of frozen desserts.
     6          169-w. Separability.
     7    § 169. Short title. This article shall be known and may  be  cited  as
     8  the "Drug Dealer Registration Act".
     9    §  169-a.  Definitions.  As  used in this article, the following defi-
    10  nitions apply:
    11    1. "Drug dealer" includes any person who is convicted of  any  of  the
    12  offenses  set forth in subdivision two of this section. Convictions that
    13  result from or are connected with the same act, or result from  offenses
    14  committed  at  the  same  time, shall be counted for the purpose of this
    15  article as one conviction. Any conviction set aside pursuant to  law  is
    16  not a conviction for purposes of this article.
    17    2. "Drug offense" means a conviction of or a conviction for an attempt
    18  to  commit  any  of  the  provisions  of section 220.31, 220.34, 220.39,
    19  220.41, 220.43, 220.44, 220.48, 220.65, 220.73, 220.74, 220.75 or 220.77
    20  of article two hundred twenty  of  the  penal  law  or  section  221.35,
    21  221.40,  221.45,  221.50  or 221.55 of article two hundred twenty-one of
    22  the penal law.
    23    3. "Law enforcement agency having jurisdiction"  means:  (a)  (i)  the
    24  chief  law enforcement officer in the village, town or city in which the
    25  dealer expects to reside upon his or her discharge,  probation,  parole,
    26  release  to  post-release supervision or upon any form of state or local
    27  conditional release; or (ii) if there be no chief law enforcement  offi-
    28  cer  in such village, town or city, the chief law enforcement officer of
    29  the county in which the dealer expects to reside; or (iii) if  there  be
    30  no  chief enforcement officer in such village, town, city or county, the
    31  division of state police and (b) in the case of a drug dealer who is  or
    32  expects  to  be employed by, enrolled in, attending or employed, whether
    33  for compensation or not, at an institution of higher education, (i)  the
    34  chief law enforcement officer in the village, town or city in which such
    35  institution  is  located;  or  (ii) if there be no chief law enforcement
    36  officer in such village, town or city, the chief law enforcement officer
    37  of the county in which such institution is located; or (iii) if there be
    38  no chief law enforcement officer in such village, town, city or  county,
    39  the  division  of state police; and (iv) if such institution operates or
    40  employs a campus law enforcement or security agency, the chief  of  such
    41  agency and (c) in the case of a drug dealer who expects to reside within
    42  a  state  park  or on other land under the jurisdiction of the office of
    43  parks, recreation and historic preservation,  the  state  regional  park
    44  police.
    45    4.  "Division"  means  the  division  of  criminal justice services as
    46  defined by section eight hundred thirty-seven of the executive law.
    47    5. "Board" means the "board of examiners of drug dealers"  established
    48  pursuant to section one hundred sixty-nine-l of this article.
    49    6. "Probation" means a sentence of probation imposed pursuant to arti-
    50  cle  sixty-five  of the penal law and shall include a sentence of impri-
    51  sonment imposed in conjunction with a sentence of probation.
    52    § 169-b. Duties of the  division;  registration  information.  1.  The
    53  division  shall establish and maintain a file of individuals required to
    54  register pursuant to the provisions of this article which shall  include
    55  the following information of each registrant:

        A. 6072                             3
 
     1    (a)  The  drug  dealer's  name,  all aliases used, date of birth, sex,
     2  race, height, weight, eye color, driver's license number,  home  address
     3  and/or expected place of domicile.
     4    (b)  A  photograph  and set of fingerprints. For a drug dealer given a
     5  level three designation, the division shall, during the period of regis-
     6  tration, update such photograph once each year. For a drug dealer  given
     7  a  level  one  or  level two designation, the division shall, during the
     8  period of registration, update such photograph once every  three  years.
     9  The  division shall notify the drug dealer by mail of the duty to appear
    10  and be photographed at  the  specified  law  enforcement  agency  having
    11  jurisdiction. Such notification shall be mailed at least thirty days and
    12  not  more  than sixty days before the photograph is required to be taken
    13  pursuant to subdivision two of section one hundred sixty-nine-f of  this
    14  article.
    15    (c)  A  description  of  the  offense  for  which  the drug dealer was
    16  convicted, the date of conviction and the sentence imposed including the
    17  type of assigned supervision and the length of time of such supervision.
    18    (d) The name and address of any institution  of  higher  education  at
    19  which  the  drug  dealer  is  or  expects  to  be enrolled, attending or
    20  employed, whether for compensation  or  not,  and  whether  such  dealer
    21  resides in or will reside in a facility owned or operated by such insti-
    22  tution.
    23    (e) Any other information deemed pertinent by the division.
    24    2.  (a)  The  division is authorized to make the registry available to
    25  any regional or national registry of drug dealers  for  the  purpose  of
    26  sharing  information.  The division shall accept files from any regional
    27  or national registry of drug dealers and shall make such files available
    28  when requested pursuant to the provisions of this article.
    29    (b) The division shall also make registry  information  available  to:
    30  (i)  the  department  of  health,  to enable such department to identify
    31  persons ineligible to  receive  reimbursement  or  coverage  for  drugs,
    32  procedures  or supplies pursuant to subdivision seven of section twenty-
    33  five hundred ten of the public health law, paragraph (e) of  subdivision
    34  four  of  section three hundred sixty-five-a of the social services law,
    35  and subdivision one of section two hundred forty-one of the  elder  law;
    36  (ii)  the  department of financial services to enable such department to
    37  identify persons ineligible to receive  reimbursement  or  coverage  for
    38  drugs,  procedures  or  supplies pursuant to subsection (b-1) of section
    39  four thousand three hundred twenty-two and subsection (d-1)  of  section
    40  four thousand three hundred twenty-six of the insurance law; and (iii) a
    41  court,  to  enable  the  court to promptly comply with the provisions of
    42  paragraph (a-1) of subdivision one of section two hundred forty  of  the
    43  domestic relations law, subdivision (e) of section six hundred fifty-one
    44  of  the  family  court  act, and subdivision (g) of section 81.19 of the
    45  mental hygiene law.
    46    (c) No official, agency, authorized person or entity,  whether  public
    47  or  private,  shall  be  subject  to any civil or criminal liability for
    48  damages for any decision or action made in the ordinary course of  busi-
    49  ness  of  that official, agency, authorized person or entity pursuant to
    50  paragraph (b) of this subdivision, provided that such official,  agency,
    51  authorized  person  or  entity  acted  reasonably and in good faith with
    52  respect to such registry information.
    53    (d) The division shall require that no  information  included  in  the
    54  registry  shall  be  made  available  except  in  the furtherance of the
    55  provisions of this article.

        A. 6072                             4
 
     1    3. The division shall develop a standardized registration form  to  be
     2  made  available  to the appropriate authorities and promulgate rules and
     3  regulations to implement the provisions of this section. Such form shall
     4  be written in clear and concise language and shall advise the drug deal-
     5  er of his or her duties and obligations under this article.
     6    4.  The  division shall mail a nonforwardable verification form to the
     7  last reported address of the person  for  annual  verification  require-
     8  ments.
     9    5. The division shall also establish and operate a telephone number as
    10  provided for in section one hundred sixty-nine-p of this article.
    11    6.  The  division  shall  also  establish  a  subdirectory pursuant to
    12  section one hundred sixty-nine-q of this article.
    13    7. The division shall also establish a public  awareness  campaign  to
    14  advise the public of the provisions of this article.
    15    8.  The  division  shall  charge a fee of ten dollars each time a drug
    16  dealer registers any change of address or  any  change  of  his  or  her
    17  status  of enrollment, attendance, employment or residence at any insti-
    18  tution of higher education as required by subdivision  four  of  section
    19  one  hundred  sixty-nine-f of this article. The fee shall be paid to the
    20  division by the drug dealer. The state comptroller is hereby  authorized
    21  to deposit such fees into the general fund.
    22    9.  The division shall, upon the request of any children's camp opera-
    23  tor, release to such person any information in the registry relating  to
    24  a  prospective  employee of any such person or entity in accordance with
    25  the provisions of this article. The division shall promulgate rules  and
    26  regulations relating to procedures for the release of information in the
    27  registry to such persons.
    28    10.  The division shall make registry information available to munici-
    29  pal housing authorities to enable such authorities to  identify  persons
    30  ineligible  to  reside  in  public housing. The division shall, at least
    31  monthly, release to each municipal housing authority  information  about
    32  drug dealers with a home address and/or expected place of domicile with-
    33  in the corresponding municipality. The division may promulgate rules and
    34  regulations relating to procedures for the release of information in the
    35  registry to such authorities.
    36    §  169-c. Drug dealer; relocation; notification. 1. In the case of any
    37  drug dealer, it shall be the duty of the department, hospital  or  local
    38  correctional facility at least ten calendar days prior to the release or
    39  discharge  of  any drug dealer from a correctional facility, hospital or
    40  local correctional facility to notify the division of  the  contemplated
    41  release  or  discharge  of  such  drug dealer, informing the division in
    42  writing on a form provided by the division  indicating  the  address  at
    43  which  he  or  she  proposes  to  reside and the name and address of any
    44  institution of higher education  at  which  he  or  she  expects  to  be
    45  enrolled,  attending  or  employed, whether for compensation or not, and
    46  whether he or she resides in or will reside in a facility owned or oper-
    47  ated by such institution. If such drug dealer changes his or  her  place
    48  of  residence  while on parole, such notification of the change of resi-
    49  dence shall be sent by the drug dealer's parole  officer  within  forty-
    50  eight  hours to the division on a form provided by the division. If such
    51  drug dealer changes the status of his  or  her  enrollment,  attendance,
    52  employment  or residence at any institution of higher education while on
    53  parole, such notification of the change of status shall be sent  by  the
    54  drug dealer's parole officer within forty-eight hours to the division on
    55  a form provided by the division.

        A. 6072                             5
 
     1    2.  In  the case of any drug dealer on probation, it shall be the duty
     2  of the drug dealer's probation officer to  notify  the  division  within
     3  forty-eight  hours  of  the new place of residence on a form provided by
     4  the division. If such drug dealer changes  the  status  of  his  or  her
     5  enrollment,  attendance,  employment  or residence at any institution of
     6  higher education while on probation, such notification of the change  of
     7  status  shall  be  sent  by  the  drug dealer's probation officer within
     8  forty-eight hours to the division on a form provided by the division.
     9    3. In the case in which any drug dealer escapes from a state or  local
    10  correctional facility or hospital, the designated official of the facil-
    11  ity  or hospital where the person was confined shall notify within twen-
    12  ty-four hours the law enforcement agency having had jurisdiction at  the
    13  time  of his or her conviction, informing such law enforcement agency of
    14  the name and aliases of the person, and the address at which he  or  she
    15  resided at the time of his or her conviction, the amount of time remain-
    16  ing  to  be  served,  if  any,  on the full term for which he or she was
    17  sentenced, and the  nature  of  the  crime  for  which  he  or  she  was
    18  sentenced,  transmitting  at  the same time a copy of such drug dealer's
    19  fingerprints and photograph and a summary of his or her criminal record.
    20    4. The division shall provide  general  information,  in  registration
    21  materials and annual correspondence, to registrants concerning notifica-
    22  tion  and  registration  procedures  that may apply if the registrant is
    23  authorized to relocate and relocates to another state or  United  States
    24  possession, or commences employment or attendance at an education insti-
    25  tution  in  another  state or United States possession. Such information
    26  shall include addresses and telephone numbers for relevant agencies from
    27  which additional information may be obtained.
    28    § 169-d. Duties of the  court.  1.  Upon  conviction  of  any  of  the
    29  offenses   set   forth   in  subdivision  two  of  section  one  hundred
    30  sixty-nine-a of this article the court shall certify that the person  is
    31  a  drug  dealer  and  shall  include  the  certification in the order of
    32  commitment, if any, and judgment of conviction.  The  court  shall  also
    33  advise  the drug dealer of his or her duties under this article. Failure
    34  to include the certification in the order of commitment or the  judgment
    35  of conviction shall not relieve a drug dealer of the obligations imposed
    36  by this article.
    37    2.  Any  drug  dealer, who is released on probation or discharged upon
    38  payment of a fine,  conditional  discharge  or  unconditional  discharge
    39  shall,  prior  to  such  release or discharge, be informed of his or her
    40  duty to register under this article by the court in which he or she  was
    41  convicted.  At  the  time  sentence  is  imposed, such drug dealer shall
    42  register with the division on a form prepared by the division. The court
    43  shall require the drug dealer to read and sign such form and to complete
    44  the registration portion of such form. The  court  shall  on  such  form
    45  obtain  the  address where the drug dealer expects to reside upon his or
    46  her release, and the name and  address  of  any  institution  of  higher
    47  education he or she expects to be employed by, enrolled in, attending or
    48  employed.  The  court shall give one copy of the form to the drug dealer
    49  and shall send two copies to the division which shall forward the infor-
    50  mation to the law enforcement agencies having  jurisdiction.  The  court
    51  shall  also notify the district attorney and the drug dealer of the date
    52  of the determination proceeding to be held pursuant to subdivision three
    53  of this section, which shall be held at least forty-five days after such
    54  notice is given.  This notice shall include the following statement or a
    55  substantially similar statement:  "This  proceeding  is  being  held  to
    56  determine  whether  you  will be classified as a level 3 dealer (risk of

        A. 6072                             6
 
     1  repeat offense is high), a level 2 dealer (risk  of  repeat  offense  is
     2  moderate),  or  a  level 1 dealer (risk of repeat offense is low), which
     3  will determine how long you must register as a drug dealer and how  much
     4  information  can be provided to the public concerning your registration.
     5  If you fail to appear at this proceeding, without sufficient excuse,  it
     6  shall  be held in your absence. Failure to appear may result in a longer
     7  period of registration or  a  higher  level  of  community  notification
     8  because  you  are  not  present  to  offer  evidence or contest evidence
     9  offered by the district attorney." The court shall also advise the  drug
    10  dealer  that  he  or  she  has a right to a hearing prior to the court's
    11  determination, that he or she has the right to be represented by counsel
    12  at the hearing and that counsel will be appointed if he or she is finan-
    13  cially unable to retain counsel. If the drug dealer applies for  assign-
    14  ment  of  counsel to represent him or her at the hearing and counsel was
    15  not previously assigned to represent the drug dealer in  the  underlying
    16  criminal  action, the court shall determine whether the dealer is finan-
    17  cially unable to retain counsel.  If such a finding is made,  the  court
    18  shall  assign  counsel  to represent the drug dealer pursuant to article
    19  eighteen-B of the county law. Where  the  court  orders  a  drug  dealer
    20  released  on  probation,  such  order must include a provision requiring
    21  that he or she comply with the requirements of this article. Where  such
    22  drug  dealer  violates  such  provision,  probation  may  be immediately
    23  revoked in the manner provided by article four hundred ten of the crimi-
    24  nal procedure law.
    25    3. For drug dealers released on probation or discharged  upon  payment
    26  of a fine, conditional discharge or unconditional discharge, it shall be
    27  the duty of the court applying the guidelines established in subdivision
    28  five  of  section  one hundred sixty-nine-l of this article to determine
    29  the level of notification pursuant to subdivision  six  of  section  one
    30  hundred  sixty-nine-l  of this article.   At least fifteen days prior to
    31  the determination proceeding, the district attorney shall provide to the
    32  court and the drug dealer a written statement setting forth the determi-
    33  nations sought by the district attorney together with  the  reasons  for
    34  seeking  such  determinations.  The court shall allow the drug dealer to
    35  appear and be heard. The state shall appear by the district attorney, or
    36  his or her designee, who shall bear the  burden  of  proving  the  facts
    37  supporting  the  determinations sought by clear and convincing evidence.
    38  Where there is a dispute between the  parties  concerning  the  determi-
    39  nations,  the court shall adjourn the hearing as necessary to permit the
    40  drug dealer or the district attorney to obtain materials relevant to the
    41  determinations from any state or local facility, hospital,  institution,
    42  office,  agency,  department or division. Such materials may be obtained
    43  by subpoena if not voluntarily provided  to  the  requesting  party.  In
    44  making the determinations, the court shall review any victim's statement
    45  and any relevant materials and evidence submitted by the drug dealer and
    46  the  district  attorney  and  the  court  may  consider reliable hearsay
    47  evidence submitted by either party provided that it is relevant  to  the
    48  determinations. Facts previously proven at trial or elicited at the time
    49  of  entry  of  a plea of guilty shall be deemed established by clear and
    50  convincing evidence and shall  not  be  re-litigated.  The  court  shall
    51  render  an  order  setting  forth its determinations and the findings of
    52  fact and conclusions of law on which the  determinations  are  based.  A
    53  copy  of the order shall be submitted by the court to the division. Upon
    54  application of either party, the court shall seal  any  portion  of  the
    55  court  file or record which contains material that is confidential under
    56  any state or federal statute. Either party may appeal as of  right  from

        A. 6072                             7
 
     1  the  order  pursuant to the provisions of articles fifty-five, fifty-six
     2  and fifty-seven of the civil practice law and rules. Where  counsel  has
     3  been assigned to represent the drug dealer upon the ground that the drug
     4  dealer is financially unable to retain counsel, that assignment shall be
     5  continued  throughout  the  pendency  of  the appeal, and the person may
     6  appeal as a poor person pursuant to article  eighteen-B  of  the  county
     7  law.
     8    4.  If a drug dealer, having been given notice, including the time and
     9  place of the determination proceeding in accordance with  this  section,
    10  fails to appear at this proceeding, without sufficient excuse, the court
    11  shall  conduct the hearing and make the determinations in the manner set
    12  forth in subdivision three of this section.
    13    § 169-e. Discharge of drug dealer from correctional  facility;  duties
    14  of  official  in charge.  1. Any drug dealer, to be discharged, paroled,
    15  released to post-release supervision or released from any state or local
    16  correctional facility, hospital or  institution  where  he  or  she  was
    17  confined  or  committed,  shall  at least fifteen calendar days prior to
    18  discharge, parole or release, be informed of his or her duty to register
    19  under this article, by the facility in which he or she was  confined  or
    20  committed.  The  facility shall require the drug dealer to read and sign
    21  such form as may be required by the division stating the duty to  regis-
    22  ter  and the procedure for registration has been explained to him or her
    23  and to complete the registration portion  of  such  form.  The  facility
    24  shall  obtain  on such form the address where the drug dealer expects to
    25  reside upon his or her discharge, parole or release  and  the  name  and
    26  address  of  any institution of higher education he or she expects to be
    27  employed by, enrolled in, attending or  employed,  whether  for  compen-
    28  sation  or not. The facility shall give one copy of the form to the drug
    29  dealer, retain one copy and shall send one copy to  the  division  which
    30  shall  provide  the  information  to the law enforcement agencies having
    31  jurisdiction. The facility shall give the drug dealer a form prepared by
    32  the division, to register with the division at  least  fifteen  calendar
    33  days  prior  to  release and such form shall be completed, signed by the
    34  drug dealer and sent to the division by the facility at least  ten  days
    35  prior to the drug dealer's release or discharge.
    36    2.  The  division  shall also immediately transmit the conviction data
    37  and fingerprints to the Federal Bureau of Investigation if  not  already
    38  obtained.
    39    § 169-f. Duty to register and to verify. 1. Any drug dealer shall, (a)
    40  at  least ten calendar days prior to discharge, parole, release to post-
    41  release supervision or release from  any  state  or  local  correctional
    42  facility,  hospital  or  institution  where  he  or  she was confined or
    43  committed, or, (b) at the time sentence is imposed for any  drug  dealer
    44  released  on probation or discharged upon payment of a fine, conditional
    45  discharge or unconditional discharge, register with the  division  on  a
    46  form prepared by the division.
    47    2.  For  a drug dealer required to register under this article on each
    48  anniversary of the drug dealer's initial registration  date  during  the
    49  period in which he or she is required to register under this section the
    50  following applies:
    51    (a)  The  drug dealer shall mail the verification form to the division
    52  within ten calendar days after receipt of the form.
    53    (b) The verification form shall be signed  by  the  drug  dealer,  and
    54  state  that  he or she still resides at the address last reported to the
    55  division.

        A. 6072                             8
 
     1    (c) If the drug dealer has been given a  level  two  or  three  desig-
     2  nation,  such dealer shall sign the verification form, and state that he
     3  or she still is employed at the address last reported to the division.
     4    (d) If the drug dealer has been given a level three designation, he or
     5  she  shall personally appear at the law enforcement agency having juris-
     6  diction within twenty days of the first anniversary of the drug dealer's
     7  initial registration and every year  thereafter  during  the  period  of
     8  registration  for  the purpose of providing a current photograph of such
     9  dealer. The law enforcement agency having jurisdiction shall  photograph
    10  the  drug dealer and shall promptly forward a copy of such photograph to
    11  the division. For purposes of this paragraph, if  such  drug  dealer  is
    12  confined  in  a  state  or  local  correctional  facility, the local law
    13  enforcement agency having jurisdiction shall be the warden,  superinten-
    14  dent,  sheriff  or  other person in charge of the state or local correc-
    15  tional facility.
    16    (e) If the drug dealer has been given a level one or level two  desig-
    17  nation,  he or she shall personally appear at the law enforcement agency
    18  having jurisdiction within twenty days of the third anniversary  of  the
    19  drug  dealer's  initial  registration  and  every three years thereafter
    20  during the period of registration for the purpose of providing a current
    21  photograph of such dealer. The law enforcement agency  having  jurisdic-
    22  tion  shall photograph the drug dealer and shall promptly forward a copy
    23  of such photograph to the division. For purposes of this  paragraph,  if
    24  such  drug dealer is confined in a state or local correctional facility,
    25  the local law enforcement agency having jurisdiction shall be the  ward-
    26  en,  superintendent,  sheriff  or other person in charge of the state or
    27  local correctional facility.
    28    (f) If the drug dealer fails to mail the signed verification  form  to
    29  the  division  within ten calendar days after receipt of the form, he or
    30  she shall be in violation of this section unless he or she  proves  that
    31  he or she has not changed his or her residence address.
    32    (g)  If  the drug dealer, to whom a notice has been mailed at the last
    33  reported address pursuant to paragraph (b) of subdivision one of section
    34  one hundred sixty-nine-b of this article, fails to personally appear  at
    35  the law enforcement agency having jurisdiction, as provided in paragraph
    36  (d) or (e) of this subdivision, within twenty days of the anniversary of
    37  the drug dealer's initial registration, or an alternate later date sche-
    38  duled by the law enforcement agency having jurisdiction, he or she shall
    39  be  in violation of this section. The duty to personally appear for such
    40  updated photograph shall be temporarily suspended during any  period  in
    41  which  the  drug  dealer is confined in any hospital or institution, and
    42  such drug dealer shall personally appear for such updated photograph  no
    43  later  than ninety days after release from such hospital or institution,
    44  or an alternate later date  scheduled  by  the  law  enforcement  agency
    45  having jurisdiction.
    46    3. The duty to register under the provisions of this article shall not
    47  be  applicable  to  any  drug  dealer whose conviction was reversed upon
    48  appeal or who was pardoned by the governor.
    49    4. Any drug dealer shall register with the division no later than  ten
    50  calendar  days  after any change of address, or any change of his or her
    51  status of enrollment, attendance, employment or residence at any  insti-
    52  tution  of  higher  education.  A  fee  of ten dollars, as authorized by
    53  subdivision eight of section one hundred sixty-nine-b of  this  article,
    54  shall  be  submitted  by the drug dealer each time such dealer registers
    55  any change of address or any change of his or her status of  enrollment,
    56  attendance,  employment or residence at any institution of higher educa-

        A. 6072                             9
 
     1  tion. Any failure or omission to  submit  the  required  fee  shall  not
     2  affect the acceptance by the division of the change of address or change
     3  of status.
     4    §  169-g.  Prior  convictions;  duty  to  inform  and register. 1. The
     5  department or office  of  probation  and  correctional  alternatives  in
     6  accordance   with   risk   factors   pursuant  to  section  one  hundred
     7  sixty-nine-l of this article shall determine the duration  of  registra-
     8  tion and notification for every drug dealer who on the effective date of
     9  this  article  is  then  on  community  supervision  or probation for an
    10  offense provided for in subdivision two of section  one  hundred  sixty-
    11  nine-a of this article.
    12    2. Every drug dealer who on the effective date of this article is then
    13  on  community  supervision  or  probation for an offense provided for in
    14  subdivision two of section one  hundred  sixty-nine-a  of  this  article
    15  shall  within  ten calendar days of such determination register with his
    16  parole or probation officer. On each anniversary of  the  drug  dealer's
    17  initial  registration  date  thereafter,  the  provisions of section one
    18  hundred sixty-nine-f of this article shall apply. Any  drug  dealer  who
    19  fails  or refuses to so comply shall be subject to the same penalties as
    20  otherwise provided for in this article which would  be  imposed  upon  a
    21  drug  dealer  who  fails  or refuses to so comply with the provisions of
    22  this article on or after such effective date.
    23    3. It shall be the duty of the parole or probation officer  to  inform
    24  and  register  such drug dealer according to the requirements imposed by
    25  this article. A parole or probation officer shall give one copy  of  the
    26  form  to the drug dealer and shall, within three calendar days, send two
    27  copies electronically or otherwise to the department which shall forward
    28  one copy electronically or  otherwise  to  the  law  enforcement  agency
    29  having jurisdiction where the drug dealer resides upon his or her commu-
    30  nity supervision, probation, or local conditional release.
    31    4.  A  petition  for relief from this section is permitted to any drug
    32  dealer required to register while released to community  supervision  or
    33  probation pursuant to section one hundred sixty-nine-o of this article.
    34    § 169-h. Duration of registration and verification. 1. The duration of
    35  registration  and verification for a drug dealer shall be annually for a
    36  period of twenty years from the initial date of registration.
    37    2. Any drug dealer having been designated a  level  three  risk  shall
    38  also  personally  verify  his  or her address every ninety calendar days
    39  with the local law enforcement  agency  having  jurisdiction  where  the
    40  dealer resides.
    41    § 169-i. Registration and verification requirements.  Registration and
    42  verification as required by this article shall consist of a statement in
    43  writing  signed  by  the  drug  dealer  giving  the  information that is
    44  required by the division and the division shall  enter  the  information
    45  into an appropriate electronic data base or file.
    46    §  169-j.  Notification of local law enforcement agencies of change of
    47  address. 1. Upon receipt of  a  change  of  address  by  a  drug  dealer
    48  required  to  register under this article, the division shall notify the
    49  local law enforcement agency having jurisdiction of  the  new  place  of
    50  residence  and  the  local  law enforcement agency where the drug dealer
    51  last resided of the new place of residence.
    52    2. Upon receipt of  change  of  address  information,  the  local  law
    53  enforcement  agency  having  jurisdiction  of the new place of residence
    54  shall adhere to the notification provisions set forth in subdivision six
    55  of section one hundred sixty-nine-l of this article.

        A. 6072                            10
 
     1    3. The division shall, if the drug dealer changes residence to another
     2  state, notify the appropriate agency within that state of the new  place
     3  of residence.
     4    4.  Upon  receipt of a change in the status of the enrollment, attend-
     5  ance, employment or residence at an institution of higher education by a
     6  drug dealer required to register under this article, the division  shall
     7  notify each law enforcement agency having jurisdiction which is affected
     8  by such change.
     9    5. Upon receipt of change in the status of the enrollment, attendance,
    10  employment  or residence at an institution of higher education by a drug
    11  dealer required to register under this  article,  each  law  enforcement
    12  agency  having  jurisdiction shall adhere to the notification provisions
    13  set forth in subdivision six of section one hundred sixty-nine-l of this
    14  article.
    15    § 169-k. Registration for change of address from another state.  1.  A
    16  drug  dealer  who has been convicted of an offense under subdivision two
    17  of section one hundred sixty-nine-a of this article and requires  regis-
    18  tration  shall  notify the division of the new address no later than ten
    19  calendar days after such  drug  dealer  establishes  residence  in  this
    20  state.
    21    2. The division shall advise the board that the drug dealer has estab-
    22  lished  residence  in  this state. The board shall determine whether the
    23  drug dealer is required to register with the division.  If it is  deter-
    24  mined  that  the drug dealer is required to register, the division shall
    25  notify the drug dealer of his or her duty to register under this article
    26  and shall require the drug dealer to sign a form as may be  required  by
    27  the  division  acknowledging that the duty to register and the procedure
    28  for registration has been explained to the  drug  dealer.  The  division
    29  shall  obtain  on such form the address where the drug dealer expects to
    30  reside within the state and the drug dealer shall retain one copy of the
    31  form and send two copies to the division which shall provide the  infor-
    32  mation  to the law enforcement agency having jurisdiction where the drug
    33  dealer expects to reside within this state. No later  than  thirty  days
    34  prior  to  the  board  making a recommendation, the drug dealer shall be
    35  notified that his or her case is under review and  that  he  or  she  is
    36  permitted to submit to the board any information relevant to the review.
    37  After  reviewing  any  information obtained, and applying the guidelines
    38  established in subdivision five of section one hundred  sixty-nine-l  of
    39  this  article,  the board shall within sixty calendar days make a recom-
    40  mendation regarding the level of notification  pursuant  to  subdivision
    41  six  of section one hundred sixty-nine-l of this article. This recommen-
    42  dation shall be confidential and  shall  not  be  available  for  public
    43  inspection.  It  shall  be submitted by the board to the county court or
    44  supreme court and to the district attorney in the county of residence of
    45  the drug dealer and to the drug dealer. It shall  be  the  duty  of  the
    46  county  court  or  supreme  court in the county of residence of the drug
    47  dealer, applying the  guidelines  established  in  subdivision  five  of
    48  section one hundred sixty-nine-l of this article, to determine the level
    49  of  notification  pursuant  to  subdivision  six  of section one hundred
    50  sixty-nine-l of this article. At least thirty days prior to the determi-
    51  nation proceeding, such court shall notify the district attorney and the
    52  drug dealer, in writing, of the date of the determination proceeding and
    53  the court shall also provide the district attorney and drug dealer  with
    54  a  copy  of the recommendation received from the board and any statement
    55  of the reasons for the recommendation  received  from  the  board.  This
    56  notice  shall include the following statement or a substantially similar

        A. 6072                            11
 
     1  statement: "This proceeding is being held to determine whether you  will
     2  be  classified  as  a level 3 dealer (risk of repeat offense is high), a
     3  level 2 dealer (risk of repeat offense is moderate), or a level 1 dealer
     4  (risk  of repeat offense is low), which will determine how long you must
     5  register as a drug dealer and how much information can  be  provided  to
     6  the  public  concerning your registration. If you fail to appear at this
     7  proceeding, without sufficient excuse, it shall be held in your absence.
     8  Failure to appear may result in a longer period  of  registration  or  a
     9  higher  level  of  community notification because you are not present to
    10  offer evidence or contest evidence offered by  the  district  attorney."
    11  The  court  shall also advise the drug dealer that he or she has a right
    12  to a hearing prior to the court's determination, that he or she has  the
    13  right  to be represented by counsel at the hearing and that counsel will
    14  be appointed if he or she is financially unable  to  retain  counsel.  A
    15  returnable  form  shall  be  enclosed  in the court's notice to the drug
    16  dealer on which the drug dealer may apply for assignment of counsel.  If
    17  the drug dealer applies for assignment of counsel and  the  court  finds
    18  that the dealer is financially unable to retain counsel, the court shall
    19  assign  counsel  to  represent the drug dealer pursuant to article eigh-
    20  teen-B of the county law. If the district attorney seeks a determination
    21  that differs from the recommendation submitted by the  board,  at  least
    22  ten  days  prior  to  the determination proceeding the district attorney
    23  shall provide to the court and the drug dealer a statement setting forth
    24  the determinations sought by the district  attorney  together  with  the
    25  reasons  for seeking such determinations. The court shall allow the drug
    26  dealer to appear and be heard. The state shall appear  by  the  district
    27  attorney,  or  his or her designee, who shall bear the burden of proving
    28  the facts supporting the determinations sought by clear  and  convincing
    29  evidence.  It  shall  be  the  duty of the court applying the guidelines
    30  established in subdivision five of section one hundred  sixty-nine-l  of
    31  this article to determine the level of notification pursuant to subdivi-
    32  sion  six  of  section  one  hundred sixty-nine-l of this article. Where
    33  there is a dispute between the parties  concerning  the  determinations,
    34  the  court  shall  adjourn  the  hearing as necessary to permit the drug
    35  dealer or the district attorney to  obtain  materials  relevant  to  the
    36  determinations  from the state board of examiners of drug dealers or any
    37  state or local facility, hospital, institution, office, agency,  depart-
    38  ment  or  division.  Such  materials  may be obtained by subpoena if not
    39  voluntarily provided to the requesting party.  In  making  the  determi-
    40  nations  the  court  shall  review  any  relevant materials and evidence
    41  submitted by the drug dealer and the district attorney and the recommen-
    42  dation and any material submitted by the board, and may  consider  reli-
    43  able  hearsay  evidence  submitted  by either party, provided that it is
    44  relevant to the determinations. If available, facts proven at  trial  or
    45  elicited  at the time of a plea of guilty shall be deemed established by
    46  clear and convincing evidence and shall not be re-litigated.  The  court
    47  shall  render an order setting forth its determinations and the findings
    48  of fact and conclusions of law on which the determinations are based.  A
    49  copy of the order shall be submitted by the court to the division.  Upon
    50  application  of  either  party,  the court shall seal any portion of the
    51  court file or record which contains material that is confidential  under
    52  any  state  or federal statute. Either party may appeal as of right from
    53  the order pursuant to the provisions of articles  fifty-five,  fifty-six
    54  and  fifty-seven  of the civil practice law and rules. Where counsel has
    55  been assigned to represent the drug dealer upon the ground that the drug
    56  dealer is financially unable to retain counsel, that assignment shall be

        A. 6072                            12
 
     1  continued throughout the pendency of the  appeal,  and  the  person  may
     2  appeal  as  a  poor  person pursuant to article eighteen-B of the county
     3  law.
     4    3.  The  division  shall undertake an information campaign designed to
     5  provide information to officials and appropriate  individuals  in  other
     6  states  and United States possessions concerning the notification proce-
     7  dures required by this article. Such information campaign shall be ongo-
     8  ing, and shall include, but not be limited to, letters, notice forms and
     9  similar materials providing relevant information about this article  and
    10  the  specific procedures required to effect notification. Such materials
    11  shall include an address and telephone number which such  officials  and
    12  individuals  in  other  states  and United States possessions may use to
    13  obtain additional information.
    14    4. If a drug dealer, having been given notice, including the time  and
    15  place  of  the determination proceeding in accordance with this section,
    16  fails to appear at this proceeding, without sufficient excuse, the court
    17  shall conduct the hearing and make the determinations in the manner  set
    18  forth in subdivision two of this section.
    19    § 169-l. Board of examiners of drug dealers. 1. There shall be a board
    20  of  examiners  of drug dealers which shall possess the powers and duties
    21  hereinafter  specified.  Such  board  shall  consist  of  five   members
    22  appointed by the governor. All members shall be employees of the depart-
    23  ment  and shall be experts in the field of the behavior and treatment of
    24  drug dealers. The term of office of each member of such board  shall  be
    25  for  six  years;  provided,  however,  that  any member chosen to fill a
    26  vacancy  occurring  otherwise  than  by  expiration  of  term  shall  be
    27  appointed  for the remainder of the unexpired term of the member whom he
    28  or she is to succeed. In the event  of  the  inability  to  act  of  any
    29  member,  the  governor may appoint some competent informed person to act
    30  in his or her stead during the continuance of such disability.
    31    2. The governor shall designate one of the members  of  the  board  as
    32  chairman  to  serve  in such capacity at the pleasure of the governor or
    33  until the member's term of office expires and a successor is  designated
    34  in accordance with law, whichever first occurs.
    35    3.  Any  member  of the board may be removed by the governor for cause
    36  after an opportunity to be heard.
    37    4. Except as otherwise provided by law, a majority of the board  shall
    38  constitute a quorum for the transaction of all business of the board.
    39    5.  The  board  shall  develop guidelines and procedures to assess the
    40  risk of a repeat offense by such drug dealer and the threat posed to the
    41  public safety. Such guidelines shall be based upon, but not limited  to,
    42  the following:
    43    (a)  criminal  history  factors  indicative  of  high  risk  of repeat
    44  offense, including:
    45    (i) whether the drug dealer served the maximum term;
    46    (ii) whether the drug dealer sold drugs to a minor;
    47    (iii) the amount of drugs sold; and
    48    (iv) the age of the drug dealer at the time of the commission  of  the
    49  first drug sale;
    50    (b)  other  criminal  history  factors to be considered in determining
    51  risk, including the number, date and nature of prior offenses;
    52    (c) conditions of release that minimize risk of re-offense,  including
    53  but  not  limited  to  whether  the  drug dealer is under supervision or
    54  residing in a home situation that provides guidance and supervision; and
    55    (d) recent behavior, including behavior while confined.

        A. 6072                            13
 
     1    6. The guidelines shall be applied by the board to make a  recommenda-
     2  tion  to  the sentencing court which shall be confidential and shall not
     3  be available for public inspection, providing for one of  the  following
     4  three  levels  of  notification depending upon the degree of the risk of
     5  re-offense by the drug dealer.
     6    (a)  If  the  risk  of  repeat offense is low, a level one designation
     7  shall be given to such drug dealer. In such  case  the  law  enforcement
     8  agency or agencies having jurisdiction and the law enforcement agency or
     9  agencies  having  had  jurisdiction at the time of his or her conviction
    10  shall be notified and may disseminate  relevant  information  which  may
    11  include a photograph and description of the dealer and which may include
    12  the name of the drug dealer, approximate address based on the drug deal-
    13  er's  zip  code,  background information including the dealer's crime of
    14  conviction, modus of operation, and the name and address of any institu-
    15  tion of higher education at which the drug dealer is enrolled,  attends,
    16  is employed or resides.
    17    (b) If the risk of repeat offense is moderate, a level two designation
    18  shall  be  given  to  such drug dealer. In such case the law enforcement
    19  agency or agencies having jurisdiction and the law enforcement agency or
    20  agencies having had jurisdiction at the time of his  or  her  conviction
    21  shall  be  notified and may disseminate relevant information which shall
    22  include a photograph and description of the dealer and which may include
    23  the exact name and any aliases used by the drug dealer,  exact  address,
    24  background  information including the dealer's crime of conviction, mode
    25  of operation, and the name and address  of  any  institution  of  higher
    26  education  at which the drug dealer is enrolled, attends, is employed or
    27  resides.
    28    (c) If the risk of repeat offense is high and there exists a threat to
    29  the public safety a level three designation shall be given to such  drug
    30  dealer.  In  such  case,  the  law enforcement agency or agencies having
    31  jurisdiction and the law  enforcement  agency  or  agencies  having  had
    32  jurisdiction  at the time of his or her conviction shall be notified and
    33  may disseminate relevant information which shall  include  a  photograph
    34  and  description  of  the dealer and which may include the drug dealer's
    35  exact name and any aliases used by the dealer, exact address, address of
    36  the dealer's place of employment, background information  including  the
    37  dealer's  crime  of  conviction,  mode  of  operation,  and the name and
    38  address of any institution of higher education at which the drug  dealer
    39  is enrolled, attends, is employed or resides.
    40    7.  Upon  request by the court, pursuant to section one hundred sixty-
    41  nine-o of this article,  the  board  shall  provide  an  updated  report
    42  pertaining  to  the  drug  dealer  petitioning for relief of the duty to
    43  register or for a modification of his or her level of notification.
    44    8. A failure by a state or local agency or the board to act  or  by  a
    45  court to render a determination within the time period specified in this
    46  article  shall  not affect the obligation of the drug dealer to register
    47  or verify under this article nor shall such failure prevent a court from
    48  making a determination regarding the drug dealer's level of notification
    49  and whether such dealer is required by law to be registered for a period
    50  of twenty years or for life. Where a court is unable to make a  determi-
    51  nation  prior  to  the  date  scheduled  for  a drug dealer's discharge,
    52  parole, release to post-release supervision or release, it shall adjourn
    53  the hearing until after the dealer is discharged, paroled,  released  to
    54  post-release  supervision  or  released,  and  shall  then expeditiously
    55  complete the hearing and issue its determination.

        A. 6072                            14
 
     1    § 169-m. Review. Notwithstanding any other provision  of  law  to  the
     2  contrary, any state or local correctional facility, hospital or institu-
     3  tion,  district  attorney, law enforcement agency, probation department,
     4  state board of parole, court or child protective  agency  shall  forward
     5  relevant  information  pertaining  to  a  drug  dealer to be discharged,
     6  paroled, released to post-release supervision or released to  the  board
     7  for review no later than one hundred twenty days prior to the release or
     8  discharge and the board shall make recommendations as provided in subdi-
     9  vision  six  of  section one hundred sixty-nine-l of this article within
    10  sixty days of receipt of the information. Information may  include,  but
    11  may  not be limited to all or a portion of the arrest file, prosecutor's
    12  file, probation or parole  file,  child  protective  file,  court  file,
    13  commitment  file,  medical  file  and  treatment file pertaining to such
    14  person. Such person shall be permitted to submit to the board any infor-
    15  mation relevant to the review. Upon application of the  drug  dealer  or
    16  the  district  attorney, the court shall seal any portion of the board's
    17  file pertaining to the drug dealer that contains material that is confi-
    18  dential under any state or federal law; provided, however, that  in  any
    19  subsequent  proceedings  in  which the drug dealer who is the subject of
    20  the sealed record is a party and which requires the board to  provide  a
    21  recommendation to the court pursuant to this article, such sealed record
    22  shall  be available to the drug dealer, the district attorney, the court
    23  and the attorney general where the  attorney  general  is  a  party,  or
    24  represents a party, in the proceeding.
    25    §  169-n.  Judicial  determination.  1. Applying the guidelines estab-
    26  lished in subdivision five of section one hundred sixty-nine-l  of  this
    27  article, the sentencing court shall make a determination with respect to
    28  the  level  of  notification,  after receiving a recommendation from the
    29  board pursuant to section one  hundred  sixty-nine-l  of  this  article.
    30  Both  determinations of the sentencing court shall be made thirty calen-
    31  dar days prior to discharge, parole or release.
    32    2. No later than thirty days prior to the board's recommendation,  the
    33  drug  dealer  shall be notified that his or her case is under review and
    34  that he or she is permitted to submit to the board any information rele-
    35  vant to the review. Upon receipt  of  the  board's  recommendation,  the
    36  sentencing  court shall determine whether the drug dealer was previously
    37  found to be eligible for assigned counsel in the underlying case.  Where
    38  such  a  finding  was previously made, the court shall assign counsel to
    39  represent the dealer, pursuant to article eighteen-B of the county  law.
    40  At least twenty days prior to the determination proceeding, the sentenc-
    41  ing  court  shall  notify the district attorney, the drug dealer and the
    42  drug dealer's counsel, in writing, of  the  date  of  the  determination
    43  proceeding and shall also provide the district attorney, the drug dealer
    44  and the drug dealer's counsel with a copy of the recommendation received
    45  from  the  board and any statement of the reasons for the recommendation
    46  received from the board. This notice shall include the following  state-
    47  ment  or  a  substantially similar statement:  "This proceeding is being
    48  held to determine whether you will be classified as  a  level  3  dealer
    49  (risk  of  repeat  offense  is  high),  a level 2 dealer (risk of repeat
    50  offense is moderate), or a level 1 dealer (risk  of  repeat  offense  is
    51  low),  which  will determine how long you must register as a drug dealer
    52  and how much information can be provided to the public  concerning  your
    53  registration.  If  you fail to appear at this proceeding, without suffi-
    54  cient excuse, it shall be held in your absence. Failure  to  appear  may
    55  result in a longer period of registration or a higher level of community
    56  notification  because  you  are not present to offer evidence or contest

        A. 6072                            15

     1  evidence offered by the district attorney." The written  notice  to  the
     2  drug dealer shall also advise the dealer that he or she has a right to a
     3  hearing  prior  to the court's determination, and that he or she has the
     4  right  to  be represented by counsel at the hearing. If counsel has been
     5  assigned to represent the dealer at the  determination  proceeding,  the
     6  notice  shall also provide the name, address and telephone number of the
     7  assigned counsel. Where counsel has not been assigned, the notice  shall
     8  advise  the  drug  dealer that counsel will be appointed if he or she is
     9  financially unable to retain counsel, and a  returnable  form  shall  be
    10  enclosed  in  the  court's  notice  to the drug dealer on which the drug
    11  dealer may apply for assignment of counsel. If the drug  dealer  applies
    12  for  assignment of counsel and the court finds that the dealer is finan-
    13  cially unable to retain counsel,  the  court  shall  assign  counsel  to
    14  represent  the  drug dealer pursuant to article eighteen-B of the county
    15  law. If the district attorney seeks a determination  that  differs  from
    16  the  recommendation  submitted  by the board, at least ten days prior to
    17  the determination proceeding the district attorney shall provide to  the
    18  court  and  the drug dealer a statement setting forth the determinations
    19  sought by the district attorney together with the  reasons  for  seeking
    20  such determinations. The court shall allow the drug dealer to appear and
    21  be heard. The state shall appear by the district attorney, or his or her
    22  designee,  who shall bear the burden of proving the facts supporting the
    23  determinations sought by clear and convincing evidence. Where there is a
    24  dispute between the parties concerning  the  determinations,  the  court
    25  shall  adjourn the hearing as necessary to permit the drug dealer or the
    26  district attorney to obtain materials  relevant  to  the  determinations
    27  from  the state board of examiners of drug dealers or any state or local
    28  facility, hospital, institution, office, agency, department or division.
    29  Such materials may be obtained by subpoena if not  voluntarily  provided
    30  to  the  requesting  party. In making the determinations the court shall
    31  review any relevant materials and evidence submitted by the drug  dealer
    32  and  the  district  attorney  and  the  recommendation and any materials
    33  submitted by the board,  and  may  consider  reliable  hearsay  evidence
    34  submitted  by either party, provided that it is relevant to the determi-
    35  nations. Facts previously proven at trial or elicited  at  the  time  of
    36  entry  of  a  plea  of  guilty  shall be deemed established by clear and
    37  convincing evidence and shall not be relitigated. The court shall render
    38  an order setting forth its determinations and the findings of  fact  and
    39  conclusions  of law on which the determinations are based. A copy of the
    40  order shall be submitted by the court to the division. Upon  application
    41  of  either  party, the court shall seal any portion of the court file or
    42  record which contains material that is confidential under any  state  or
    43  federal  statute.  Either  party  may  appeal as of right from the order
    44  pursuant to the provisions of articles fifty-five, fifty-six and  fifty-
    45  seven  of  the  civil  practice  law  and  rules. Where counsel has been
    46  assigned to represent the drug dealer upon  the  ground  that  the  drug
    47  dealer is financially unable to retain counsel, that assignment shall be
    48  continued  throughout  the  pendency  of  the appeal, and the person may
    49  appeal as a poor person pursuant to article  eighteen-B  of  the  county
    50  law.
    51    3.  Upon  determination  that the risk of repeat offense and threat to
    52  public safety is high, the sentencing court shall also notify the  divi-
    53  sion  of  such fact for the purposes of section one hundred sixty-nine-q
    54  of this article.
    55    4. Upon the reversal of a conviction of  a  drug  offense  defined  in
    56  subdivision two of section one hundred sixty-nine-a of this article, the

        A. 6072                            16
 
     1  appellate court shall remand the case to the lower court for entry of an
     2  order directing the expungement of any records required to be kept here-
     3  in.
     4    5.  If a drug dealer, having been given notice, including the time and
     5  place of the determination proceeding in accordance with  this  section,
     6  fails to appear at this proceeding, without sufficient excuse, the court
     7  shall  conduct the hearing and make the determinations in the manner set
     8  forth in subdivision three of this section.
     9    § 169-o. Petition for relief or modification. 1. Any drug  dealer  who
    10  is classified as a level two risk, who is required to register or verify
    11  pursuant to this article and who has been registered for a minimum peri-
    12  od  of thirty years may be relieved of any further duty to register upon
    13  the granting of a petition for relief by the sentencing court or by  the
    14  court  which  made  the determination regarding duration of registration
    15  and level of notification. The drug dealer  shall  bear  the  burden  of
    16  proving  by clear and convincing evidence that his or her risk of repeat
    17  offense is no longer necessary. Such petition,  if  granted,  shall  not
    18  relieve  the petitioner of the duty to register pursuant to this article
    19  upon conviction of any offense requiring  registration  in  the  future.
    20  Such  a petition shall not be considered more than once every two years.
    21  In the event that the drug dealer's petition for relief is granted,  the
    22  district  attorney may appeal as of right from the order pursuant to the
    23  provisions of articles fifty-five,  fifty-six  and  fifty-seven  of  the
    24  civil  practice law and rules. Where counsel has been assigned to repre-
    25  sent the drug dealer upon the ground that the drug dealer is financially
    26  unable to retain counsel, that assignment shall be continued  throughout
    27  the  pendency  of the appeal, and the person may appeal as a poor person
    28  pursuant to article eighteen-B of the county law.
    29    2. Any drug dealer required to register or  verify  pursuant  to  this
    30  article  may  petition  the sentencing court or the court which made the
    31  determination regarding the level of notification for an order modifying
    32  the level of notification. The petition shall set  forth  the  level  of
    33  notification sought, together with the reasons for seeking such determi-
    34  nation.  The  drug  dealer  shall  bear  the burden of proving the facts
    35  supporting the requested modification by clear and convincing  evidence.
    36  Such  a  petition  shall  not  be considered more than annually.  In the
    37  event that the drug dealer's petition to modify the level  of  notifica-
    38  tion  is  granted, the district attorney may appeal as of right from the
    39  order pursuant to the provisions of articles fifty-five,  fifty-six  and
    40  fifty-seven  of the civil practice law and rules. Where counsel has been
    41  assigned to represent the drug dealer upon  the  ground  that  the  drug
    42  dealer is financially unable to retain counsel, that assignment shall be
    43  continued  throughout  the  pendency  of  the appeal, and the person may
    44  appeal as a poor person pursuant to article  eighteen-B  of  the  county
    45  law.
    46    3.  The  district  attorney may file a petition to modify the level of
    47  notification for a drug dealer with the sentencing  court  or  with  the
    48  court  which made the determination regarding the level of notification,
    49  where the drug dealer (a) has been convicted of a new  crime,  or  there
    50  has  been  a determination after a proceeding pursuant to section 410.70
    51  of the criminal procedure law or section two hundred fifty-nine-i of the
    52  executive law that the drug dealer has violated one or  more  conditions
    53  imposed  as  part  of  a sentence of a conditional discharge, probation,
    54  parole or post-release supervision for a designated crime, and  (b)  the
    55  conduct  underlying  the  new crime or the violation is of a nature that
    56  indicates an increased risk of a repeat drug offense. The petition shall

        A. 6072                            17
 
     1  set forth the level of notification sought, together  with  the  reasons
     2  for  seeking  such  determination.  The district attorney shall bear the
     3  burden of proving the facts supporting the  requested  modification,  by
     4  clear and convincing evidence. In the event that the district attorney's
     5  petition  is  granted,  the  drug dealer may appeal as of right from the
     6  order, pursuant to the provisions of articles fifty-five, fifty-six  and
     7  fifty-seven  of the civil practice law and rules. Where counsel has been
     8  assigned to represent the dealer upon the  ground  that  he  or  she  is
     9  financially unable to retain counsel, that assignment shall be continued
    10  throughout  the  pendency of the appeal, and the person may proceed as a
    11  poor person, pursuant to article eighteen-B of the county law.
    12    4. Upon receipt of a petition submitted pursuant to  subdivision  one,
    13  two  or  three  of  this  section, the court shall forward a copy of the
    14  petition to the board and request an updated  recommendation  pertaining
    15  to the drug dealer and shall provide a copy of the petition to the other
    16  party.  The  court  shall also advise the drug dealer that he or she has
    17  the right to be represented by counsel at the hearing and  counsel  will
    18  be  appointed  if  he  or she is financially unable to retain counsel. A
    19  returnable form shall be enclosed in the  court's  notice  to  the  drug
    20  dealer  on which the drug dealer may apply for assignment of counsel. If
    21  the drug dealer applies for assignment of counsel and  the  court  finds
    22  that the dealer is financially unable to retain counsel, the court shall
    23  assign  counsel  to represent the dealer, pursuant to article eighteen-B
    24  of the county law. Where the petition was filed by a district  attorney,
    25  at least thirty days prior to making an updated recommendation the board
    26  shall  notify  the  drug dealer and his or her counsel that the dealer's
    27  case is under review and he or she is permitted to submit to  the  board
    28  any  information relevant to the review. The board's updated recommenda-
    29  tion on the drug dealer shall be confidential and shall not be available
    30  for public inspection. After receiving an  updated  recommendation  from
    31  the  board  concerning  a  drug dealer, the court shall, at least thirty
    32  days prior to ruling upon the petition, provide a copy  of  the  updated
    33  recommendation  to  the  drug  dealer, the drug dealer's counsel and the
    34  district attorney and notify them, in writing, of the date  set  by  the
    35  court  for a hearing on the petition. After reviewing the recommendation
    36  received from the board and any relevant materials and evidence  submit-
    37  ted by the drug dealer and the district attorney, the court may grant or
    38  deny  the  petition. The court may also consult with the victim prior to
    39  making a determination on the petition. The court shall render an  order
    40  setting  forth  its  determination, and the findings of fact and conclu-
    41  sions of law on which the determination is based.  If  the  petition  is
    42  granted, it shall be the obligation of the court to submit a copy of its
    43  order to the division. Upon application of either party, the court shall
    44  seal  any  portion  of  the court file or record which contains material
    45  that is confidential under any state or federal statute.
    46    § 169-p. Special telephone number. 1. Pursuant to section one  hundred
    47  sixty-nine-b  of  this  article, the division shall also operate a tele-
    48  phone number that members of the public may  call  free  of  charge  and
    49  inquire whether a named individual required to register pursuant to this
    50  article  is  listed. The division shall ascertain whether a named person
    51  reasonably appears to be a person so listed and provide the caller  with
    52  the  relevant  information according to risk as described in subdivision
    53  six of section one hundred sixty-nine-l of this  article.  The  division
    54  shall  decide whether the named person reasonably appears to be a person
    55  listed, based upon information from  the  caller  providing  information
    56  that  shall  include  (a)  an  exact street address, including apartment

        A. 6072                            18
 
     1  number, driver's license number or birth  date,  along  with  additional
     2  information  that  may  include  social security number, hair color, eye
     3  color, height, weight,  distinctive  markings,  ethnicity;  or  (b)  any
     4  combination  of  the above listed characteristics if an exact birth date
     5  or address is not available. If three of  the  characteristics  provided
     6  include  ethnicity, hair color, and eye color, other identifying charac-
     7  teristics shall be provided.
     8    2. When the telephone number is called, a  preamble  shall  be  played
     9  which shall provide the following information:
    10    (a) notice that the caller's telephone number will be recorded;
    11    (b) notice that there is no charge for use of the telephone number;
    12    (c)  notice that the caller is required to identify himself or herself
    13  to the operator and provide current address and shall be maintained in a
    14  written record;
    15    (d) notice that the caller is required to be eighteen years of age  or
    16  older;
    17    (e)  a  warning that it is illegal to use information obtained through
    18  the telephone number to commit a crime against any person listed  or  to
    19  engage in illegal discrimination or harassment against such person;
    20    (f)  notice  that the caller is required to have the birth date, driv-
    21  er's license or identification number, or address or  other  identifying
    22  information  regarding  the  person  about whom information is sought in
    23  order to achieve a positive identification of that person;
    24    (g) a statement that the number is not a crime hotline  and  that  any
    25  suspected criminal activity should be reported to local authorities;
    26    (h)  a  statement  that  an  information  package which will include a
    27  description of the law and drug offense are available upon request  from
    28  the  division.  Such  information  package  shall  include questions and
    29  answers regarding the most commonly asked questions about the drug deal-
    30  er registration act, and current drug offense prevention material.
    31    3. (a) The division shall establish a program allowing non-profit  and
    32  not-for-profit  youth  services  organizations  to pre-register with the
    33  division for use  of  the  telephone  number.    Pre-registration  shall
    34  include  the  identification  of up to two officials of the organization
    35  who may call the telephone number and obtain information  on  behalf  of
    36  the  organization. A pre-registered certificate issued under this subdi-
    37  vision shall be valid for two years, unless earlier revoked by the divi-
    38  sion for good cause shown. No fee shall be charged to an  applicant  for
    39  the  issuance  of a pre-registered certificate pursuant to this subdivi-
    40  sion.
    41    (b) An organization granted a pre-registered certificate  pursuant  to
    42  this subdivision may, upon calling the telephone number, inquire whether
    43  multiple  named  individuals  are  listed  on  the drug dealer registry.
    44  Notwithstanding any per call limitation the division may place on  calls
    45  by  private  individuals,  the  division shall allow such pre-registered
    46  organizations to inquire about up to twenty prospective coaches, leaders
    47  or volunteers in each call to the telephone number.
    48    (c) For purposes of this subdivision,  "youth  services  organization"
    49  shall  mean  a  formalized program operated by a corporation pursuant to
    50  subparagraph five of paragraph (a) of section one  hundred  two  of  the
    51  not-for-profit  corporation law that functions primarily to: (a) provide
    52  children the opportunity to  participate  in  adult-supervised  sporting
    53  activities;  or  (b)  match  children  or  groups of children with adult
    54  volunteers for the purpose of  providing  children  with  positive  role
    55  models to enhance their development.

        A. 6072                            19
 
     1    4.  Whenever  there  is reasonable cause to believe that any person or
     2  group of persons is engaged in a pattern or practice of  misuse  of  the
     3  telephone  number,  the  attorney  general, any district attorney or any
     4  person aggrieved by the misuse of the number is authorized  to  bring  a
     5  civil  action  in  the  appropriate  court requesting preventive relief,
     6  including an  application  for  a  permanent  or  temporary  injunction,
     7  restraining  order or other order against the person or group of persons
     8  responsible for the pattern or practice of misuse. The  foregoing  reme-
     9  dies  shall  be independent of any other remedies or procedures that may
    10  be available to an aggrieved party under other provisions of  law.  Such
    11  person  or  group of persons shall be subject to a fine of not less than
    12  five hundred dollars and not more than one thousand dollars.
    13    5. The division shall submit to the legislature an  annual  report  on
    14  the  operation of the telephone number. The annual report shall include,
    15  but not be limited to, all of the following:
    16    (a) number of calls received;
    17    (b) a detailed outline of the amount of money expended and the  manner
    18  in which it was expended for purposes of this section;
    19    (c)  number  of calls that resulted in an affirmative response and the
    20  number of calls that resulted in a  negative  response  with  regard  to
    21  whether a named individual was listed;
    22    (d) number of persons listed; and
    23    (e)  a  summary  of  the success of the telephone number program based
    24  upon selected factors.
    25    § 169-q. Subdirectory; internet posting. 1. The division  shall  main-
    26  tain a subdirectory of level two and three drug dealers. The subdirecto-
    27  ry  shall  include  the  exact address, address of the dealer's place of
    28  employment and photograph of the drug dealer along  with  the  following
    29  information,  if available: name, physical description, age and distinc-
    30  tive markings. Background information including all of the drug dealer's
    31  crimes of conviction that require him or her  to  register  pursuant  to
    32  this  article,  the name and address of any institution of higher educa-
    33  tion at which the drug dealer  is  enrolled,  attends,  is  employed  or
    34  resides  and  a  description  of  special conditions imposed on the drug
    35  dealer shall also be included. The subdirectory shall have  drug  dealer
    36  listings  categorized by county and zip code. Such subdirectory shall be
    37  made available at all times on the internet via the  division  homepage.
    38  Any person may apply to the division to receive automated e-mail notifi-
    39  cations  whenever a new or updated subdirectory registration occurs in a
    40  geographic area specified by such person.  The  division  shall  furnish
    41  such  service  at  no  charge  to  such person, who shall request e-mail
    42  notification by county and/or zip code on forms developed  and  provided
    43  by  the  division.  E-mail  notification  is limited to three geographic
    44  areas per e-mail account.
    45    2. Any person who uses information disclosed pursuant to this  section
    46  in  violation  of the law shall in addition to any other penalty or fine
    47  imposed, be subject to a fine of not less than five hundred dollars  and
    48  not  more than one thousand dollars. Unauthorized removal or duplication
    49  of the subdirectory from the offices of local, village  or  city  police
    50  department  shall  be  punishable  by  a fine not to exceed one thousand
    51  dollars. In addition, the attorney general, any  district  attorney,  or
    52  any person aggrieved is authorized to bring a civil action in the appro-
    53  priate  court requesting preventive relief, including an application for
    54  a permanent or temporary injunction, restraining order, or  other  order
    55  against  the person or group of persons responsible for such action. The
    56  foregoing remedies shall be independent of any other remedies or  proce-

        A. 6072                            20
 
     1  dures that may be available to an aggrieved party under other provisions
     2  of law.
     3    §  169-r. Immunity from liability. 1. No official, employee or agency,
     4  whether public or private, shall be subject to  any  civil  or  criminal
     5  liability for damages for any discretionary decision to release relevant
     6  and  necessary  information pursuant to this section, unless it is shown
     7  that such official, employee or agency acted with gross negligence or in
     8  bad faith. The immunity provided  under  this  section  applies  to  the
     9  release  of  relevant  information to other employees or officials or to
    10  the general public.
    11    2. Nothing in this section shall be deemed  to  impose  any  civil  or
    12  criminal liability upon or to give rise to a cause of action against any
    13  official,  employee or agency, whether public or private, for failing to
    14  release information as authorized in this section  unless  it  is  shown
    15  that such official, employee or agency acted with gross negligence or in
    16  bad faith.
    17    § 169-s. Annual report. The division shall on or before February first
    18  in each year file a report with the governor and the legislature detail-
    19  ing  the  program, compliance with provisions of this article and effec-
    20  tiveness of the provisions of this article, together with any  recommen-
    21  dations to further enhance the intent of this article.
    22    §  169-t.  Penalty.  Any drug dealer required to register or to verify
    23  pursuant to the provisions of this article  who  fails  to  register  or
    24  verify  in  the  manner and within the time periods provided for in this
    25  article shall be guilty of a class E  felony  upon  conviction  for  the
    26  first  offense,  and  upon conviction for a second or subsequent offense
    27  shall be guilty of a class D felony. Any drug dealer  who  violates  the
    28  provisions  of section one hundred sixty-nine-v of this article shall be
    29  guilty of a class A misdemeanor upon conviction for the  first  offense,
    30  and  upon  conviction for a second or subsequent offense shall be guilty
    31  of a class D felony.  Any such failure to register or verify may also be
    32  the basis for revocation of  parole  pursuant  to  section  two  hundred
    33  fifty-nine-i  of  the  executive  law  or  the  basis  for revocation of
    34  probation pursuant to article four hundred ten of the criminal procedure
    35  law.
    36    § 169-u. Unauthorized release of information. The unauthorized release
    37  of any information required by this article shall be a class B misdemea-
    38  nor.
    39    § 169-v. Prohibition of employment on motor vehicles engaged in retail
    40  sales of frozen desserts. No person required  to  maintain  registration
    41  under  this  article  (drug  dealer  registration act) shall operate, be
    42  employed on or dispense goods for sale at  retail  on  a  motor  vehicle
    43  engaged  in  retail  sales  of frozen desserts as defined in subdivision
    44  thirty-seven of section three hundred seventy-five of  the  vehicle  and
    45  traffic law.
    46    § 169-w. Separability. If any section of this article, or part thereof
    47  shall  be  adjudged  by a court of competent jurisdiction to be invalid,
    48  such judgment shall not affect, impair or invalidate  the  remainder  or
    49  any other section or part thereof.
    50    § 2. This act shall take effect on the one hundred eightieth day after
    51  it shall have become a law.
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