Bill Text: NY A03471 | 2021-2022 | General Assembly | Amended
Bill Title: Enacts "The Domestic Violence Protection Act - Helen's Law" requiring registration of violent felony offenders; sets forth duties of the division of criminal justice services; establishes a special telephone number; requires the division to maintain a subdirectory of violent predators.
Spectrum: Bipartisan Bill
Status: (Introduced - Dead) 2022-01-05 - referred to correction [A03471 Detail]
Download: New_York-2021-A03471-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 3471--A 2021-2022 Regular Sessions IN ASSEMBLY January 26, 2021 ___________ Introduced by M. of A. GUNTHER, SANTABARBARA, BARRETT, STECK, JONES, BUTTENSCHON, COLTON, GRIFFIN, GOODELL, NORRIS, MORINELLO, M. MILLER, MANKTELOW, TAGUE, BLANKENBUSH -- Multi-Sponsored by -- M. of A. BARN- WELL, FITZPATRICK, J. M. GIGLIO, McDONOUGH, MONTESANO, PALMESANO -- read once and referred to the Committee on Correction -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee AN ACT to amend the penal law and the correction law, in relation to enacting "The Domestic Violence Protection Act - Helen's Law" The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. This act shall be known and may be cited as "The Domestic 2 Violence Protection Act - Helen's Law". 3 § 2. The penal law is amended by adding two new sections 195.03 and 4 195.04 to read as follows: 5 § 195.03 Failure to register or verify as a violent felony offender in 6 the second degree. 7 A person is guilty of failure to register or verify as a violent felo- 8 ny offender in the second degree when, being a violent felony offender 9 required to register or verify pursuant to article six-B of the 10 correction law, he or she fails to register or verify in the manner and 11 within the time periods provided for in such article. 12 Failure to register or verify as a violent felony offender in the 13 second degree is a class E felony. 14 § 195.04 Failure to register or verify as a violent felony offender in 15 the first degree. 16 A person is guilty of failure to register or verify as a violent felo- 17 ny offender in the first degree when he or she commits the crime of 18 failure to register or verify as a violent felony offender in the second 19 degree and has previously been convicted of failure to register or veri- EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD02754-03-1A. 3471--A 2 1 fy as a violent felony offender in the second degree as defined in 2 section 195.03 of this article. 3 Failure to register or verify as a violent felony offender in the 4 first degree is a class D felony. 5 § 3. The correction law is amended by adding a new article 6-B to read 6 as follows: 7 ARTICLE 6-B 8 VIOLENT FELONY OFFENDER REGISTRATION 9 Section 162. Definitions. 10 163. Duties of the division; registration information. 11 164. Violent felony offender; relocation; notification. 12 165. Duties of the court. 13 166. Discharge of violent felony offender from correctional 14 facility; duties of official in charge. 15 167. Duty to register. 16 167-a. Prior convictions; duty to inform and register. 17 167-b. Duration of registration. 18 167-c. Registration requirements. 19 167-d. Notification of local law enforcement agencies of change 20 of address. 21 167-e. Registration for change of address from another state. 22 167-f. Board of examiners of violent felony offenders. 23 167-g. Review. 24 167-h. Judicial determination. 25 167-i. Petition for relief. 26 167-j. Special telephone number. 27 167-k. Violent predator subdirectory. 28 167-l. Immunity from liability. 29 167-m. Annual report. 30 167-n. Failure to register; penalty. 31 167-o. Unauthorized release of information. 32 167-p. Severability. 33 167-q. Subdirectory; internet posting. 34 § 162. Definitions. As used in this article, the following definitions 35 apply: 36 1. "Violent felony offender" includes any person who is convicted of a 37 violent felony offense as defined under section 70.02 of the penal law 38 or a class A felony offense defined in the penal law other than a class 39 A felony offense defined in article two hundred twenty of the penal law. 40 Convictions that result from or are connected with the same act, or 41 result from offenses committed at the same time, shall be counted for 42 the purpose of this article as one conviction. Any conviction set aside 43 pursuant to law is not a conviction for purposes of this article. 44 2. "Violent felony offense" means a conviction for an offense as 45 defined under section 70.02 of the penal law or a class A felony offense 46 defined in the penal law other than a class A offense defined in article 47 two hundred twenty of the penal law. 48 3. "Law enforcement agency having jurisdiction" means the chief law 49 enforcement officer in the village, town or city in which the violent 50 felony offender expects to reside upon his or her discharge, probation, 51 parole or upon any form of state or local conditional release. 52 4. "Division" means the division of criminal justice services estab- 53 lished under article thirty-five of the executive law. 54 5. "Hospital" means a hospital as defined in subdivision two of 55 section four hundred of this chapter and applies to persons committed toA. 3471--A 3 1 such hospital by order of commitment made pursuant to article sixteen of 2 this chapter. 3 6. "Violent predator" means a person who has been convicted of a 4 violent felony offense as defined in this article, or a violent felony 5 offender as defined in this article who suffers from a mental abnor- 6 mality that makes such person likely to engage in violent conduct. 7 7. "Mental abnormality" means a congenital or acquired condition of a 8 person that affects the emotional or volitional capacity of the person 9 in a manner that predisposes that person to the commission of criminal 10 violent acts to a degree that makes the person a menace to the health 11 and safety of other persons. 12 8. "Board" means the board of examiners of violent felony offenders 13 established pursuant to section one hundred sixty-seven-f of this arti- 14 cle. 15 9. "Local correctional facility" means a local correctional facility 16 as that term is defined in subdivision sixteen of section two of this 17 chapter. 18 § 163. Duties of the division; registration information. 1. The divi- 19 sion shall establish and maintain a file of individuals required to 20 register pursuant to the provisions of this article which shall include 21 the following information of each registrant: 22 (a) The violent felony offender's name, all aliases used, date of 23 birth, sex, race, height, weight, eye color, driver's license number, 24 home address and/or expected place of domicile. 25 (b) A photograph and set of fingerprints. 26 (c) A description of the offense for which the violent felony offender 27 was convicted, the date of conviction and the sentence imposed. 28 (d) Any other information deemed pertinent by the division. 29 2. The division is authorized to make the registry available to any 30 regional or national registry of violent felony offenders for the 31 purpose of sharing information. The division shall accept files from any 32 regional or national registry of violent felony offenders and shall make 33 such files available when requested pursuant to the provisions of this 34 article. The division shall require that no information included in the 35 registry shall be made available except in the furtherance of the 36 provisions of this article. 37 3. The division shall develop a standardized registration form to be 38 made available to the appropriate authorities and promulgate rules and 39 regulations to implement the provisions of this section. 40 4. The division shall mail a nonforwardable verification form to the 41 last reported address of the person for annual verification require- 42 ments. 43 5. The division shall also establish and operate a telephone number as 44 provided for in section one hundred sixty-seven-j of this article. 45 6. The division shall also establish a violent predator subdirectory 46 pursuant to section one hundred sixty-seven-k of this article. 47 7. The division shall also establish a public awareness campaign to 48 advise the public of the provisions of this article. 49 § 164. Violent felony offender; relocation; notification. 1. In the 50 case of any violent felony offender, it shall be the duty of the depart- 51 ment, hospital or local correctional facility at least ten calendar days 52 prior to the release or discharge of any violent felony offender from a 53 correctional facility, hospital or local correctional facility to notify 54 the law enforcement agency having jurisdiction where appropriate, and 55 law enforcement agency having had jurisdiction at the time of his or her 56 conviction, of the contemplated release or discharge of such violentA. 3471--A 4 1 felony offender, informing such law enforcement agencies of the name and 2 aliases of the violent felony offender, the address at which he or she 3 proposes to reside, the address at which he or she resided at the time 4 of his or her conviction, the amount of time remaining to be served, if 5 any, on the full term for which he or she was sentenced, and the nature 6 of the crime for which he or she was sentenced, transmitting at the same 7 time a copy of such violent felony offender's fingerprints and photo- 8 graph and a summary of his or her criminal record. If such violent felo- 9 ny offender changes his or her place of residence while on parole, such 10 notification of the change of residence shall be sent by the violent 11 felony offender's parole officer within forty-eight hours to the law 12 enforcement agency in which the new place of residence is located. 13 2. In the case of any violent felony offender convicted and sentenced 14 to probation, conditional discharge or unconditional discharge, it shall 15 be the duty of the court within twenty-four hours after such sentence to 16 notify the law enforcement agency having jurisdiction, where appropri- 17 ate, and the law enforcement agency having had jurisdiction at the time 18 of his or her conviction, if different from where he or she currently 19 resides, and/or where he or she currently resides, of the sentence of 20 probation, conditional discharge or unconditional discharge, informing 21 such law enforcement agencies of the name and aliases of the person, the 22 address at which he or she proposes to reside, resided at and/or at 23 which he or she currently resides, the amount of time to be served on 24 probation, and the nature of the crime for which he or she was 25 sentenced, transmitting at the same time a copy of such violent felony 26 offender's fingerprints and photograph and a summary of his or her crim- 27 inal record. If such person changes his or her place of residence while 28 on probation, such notification of the change of residence shall be sent 29 by the violent felony offender's probation officer within forty-eight 30 hours to the law enforcement agency having jurisdiction in which the new 31 place of residence is located. 32 3. In the case of any violent felony offender, who on the effective 33 date of this subdivision is on parole or probation, it shall be the duty 34 of such violent felony offender's parole or probation officer within 35 forty-five calendar days of the effective date of this subdivision to 36 notify the law enforcement agency having had jurisdiction in which such 37 person resided at the time of his or her conviction, if different from 38 where he or she currently resides and/or where he or she currently 39 resides, of the name and aliases of such violent felony offender, the 40 address at which he or she resided and/or at which he or she currently 41 resides, the amount of time to be served on parole or probation, the 42 nature of the crime for which he or she was sentenced, transmitting at 43 the same time a copy of such violent felony offender's fingerprints and 44 photograph and a summary of his or her criminal record. If such violent 45 felony offender changes his or her place of residence while on parole or 46 probation, such notification of the change of residence shall be sent by 47 the violent felony offender's parole or probation officer within forty- 48 eight hours to the law enforcement agency having jurisdiction in which 49 the new place of residence is located. 50 4. In the case in which any violent felony offender escapes from a 51 state or local correctional facility or hospital, the designated offi- 52 cial of the facility or hospital where the person was confined shall 53 notify within twenty-four hours the law enforcement agency having had 54 jurisdiction at the time of his or her conviction, informing such law 55 enforcement agency of the name and aliases of the person, and the 56 address at which he or she resided at the time of his or her conviction,A. 3471--A 5 1 the amount of time remaining to be served if any, on the full term for 2 which he or she was sentenced, and the nature of the crime for which he 3 or she was sentenced, transmitting at the same time a copy of such 4 violent felony offender's fingerprints and photograph and a summary of 5 his or her criminal record. 6 § 165. Duties of the court. 1. Upon conviction the court shall certify 7 that the person is a violent felony offender and shall include the 8 certification in the order of commitment. The court shall also advise 9 the violent felony offender of the duties of this article. 10 2. Any violent felony offender, who is released on probation or 11 discharged upon payment of a fine shall, prior to such release or 12 discharge, be informed of his or her duty to register under this article 13 by the court in which he or she was convicted. Where the court orders a 14 violent felony offender released on probation, such order must include a 15 provision requiring that he or she comply with the requirements of this 16 article. Where such violent felony offender violates such provision, 17 probation may be immediately revoked in the manner provided by article 18 four hundred ten of the criminal procedure law. The court shall require 19 the violent felony offender to read and sign such form as may be 20 required by the division stating the duty to register and the procedure 21 for registration has been explained to him or her. The court shall on 22 such form obtain the address where the violent felony offender expects 23 to reside upon his or her release, and shall report the address to the 24 division. The court shall give one copy of the form to the violent felo- 25 ny offender and shall send two copies to the division which shall 26 forward one copy to the law enforcement agency having jurisdiction where 27 the violent felony offender expects to reside upon his or her release. 28 Within ten calendar days of being released on probation or discharged 29 upon payment of a fine, such violent felony offender shall register with 30 the division for purposes of verifying such violent felony offender's 31 intended place of residence. On each anniversary of the violent felony 32 offender's original registration date, the provisions of section one 33 hundred sixty-seven of this article shall apply. The division shall 34 also immediately forward the conviction data and fingerprints to the 35 Federal Bureau of Investigation if not already obtained. 36 3. For violent felony offenders under this section, it shall be the 37 duty of the court applying the guidelines established in subdivision 38 five of section one hundred sixty-seven-f of this article to determine 39 the duration of registration pursuant to section one hundred sixty-sev- 40 en-b of this article and notification pursuant to subdivision six of 41 section one hundred sixty-seven-f of this article. In making the deter- 42 mination, the court shall review any victim's statement and any materi- 43 als submitted by the violent felony offender. The court shall also allow 44 the violent felony offender to appear and be heard, and inform the 45 violent felony offender of his or her right to have counsel appointed, 46 if necessary. 47 § 166. Discharge of violent felony offender from correctional facili- 48 ty; duties of official in charge. 1. Any violent felony offender, to be 49 discharged, paroled or released from any state or local correctional 50 facility, hospital or institution where he or she was confined or 51 committed, shall within forty-five calendar days prior to discharge, 52 parole or release, be informed of his or her duty to register under this 53 article, by the facility in which he or she was confined or committed. 54 The facility shall require the violent felony offender to read and sign 55 such form as may be required by the division stating the duty to regis- 56 ter and the procedure for registration has been explained to him or her.A. 3471--A 6 1 The facility shall obtain on such form the address where the violent 2 felony offender expects to reside upon his or her discharge, parole or 3 release and shall report the address to the division. The facility shall 4 give one copy of the form to the violent felony offender and shall send 5 two copies to the division which shall forward one copy to the law 6 enforcement agency having jurisdiction where the violent felony offender 7 expects to reside upon his or her discharge, parole or release. In addi- 8 tion, the facility shall give the violent felony offender a form to 9 register with the division within ten calendar days for purposes of 10 verifying such violent felony offender's intended place of residence. 11 2. The division shall also immediately transmit the conviction data 12 and fingerprints to the Federal Bureau of Investigation, if not already 13 obtained. 14 § 167. Duty to register. 1. Any violent felony offender, who is 15 discharged, paroled or released from any state or local correctional 16 facility, hospital or institution where he or she was confined or 17 committed, shall register with the division within ten calendar days for 18 purposes of verifying such violent felony offender's intended place of 19 residence. 20 2. For a violent felony offender required to register under this arti- 21 cle on each anniversary of the violent felony offender's initial regis- 22 tration date during the period on which he or she is required to regis- 23 ter under this section the following applies: 24 (a) The violent felony offender shall mail the verification form to 25 the division within ten calendar days after receipt of the form. 26 (b) The verification form shall be signed by the violent felony offen- 27 der, and state that he or she still resides at the address last reported 28 to the division. 29 (c) If the violent felony offender fails to mail the verification form 30 to the division within ten calendar days after receipt of the form, he 31 or she shall be in violation of this section. 32 3. The provisions of subdivision two of this section shall be applied 33 to a violent felony offender required to register under this article 34 except that such violent felony offender designated as a violent preda- 35 tor must personally verify with the local law enforcement agency, the 36 registration every ninety calendar days after the date of the initial 37 release or commencement of parole. 38 4. Any violent felony offender shall register with the division within 39 ten calendar days prior to any change of address. The division shall, if 40 the violent felony offender changes residence to another state, notify 41 the appropriate state law enforcement agency with which the violent 42 felony offender must register in the new state. If any person required 43 to register as provided in this article changes the address of his or 44 her residence, the violent felony offender shall within ten calendar 45 days, inform in writing the law enforcement agency where last registered 46 of the new address. The law enforcement agency shall, within three 47 calendar days of receipt of the new address, forward this information to 48 the division and to the law enforcement agency having jurisdiction in 49 the new place of residence. 50 5. The duty to register under the provisions of this article shall not 51 be applicable to any violent felony offender whose conviction was 52 reversed upon appeal or who was pardoned by the governor. 53 § 167-a. Prior convictions; duty to inform and register. 1. It shall 54 be the duty of the sentencing court applying the guidelines established 55 in subdivision five of section one hundred sixty-seven-f of this article 56 to determine the duration of registration pursuant to section oneA. 3471--A 7 1 hundred sixty-seven-b of this article and notification pursuant to 2 subdivision six of section one hundred sixty-seven-f of this article and 3 notification for every violent felony offender who on the effective date 4 of this article is then on parole or probation for committing a violent 5 felony offense or a class A offense defined in the penal law except for 6 a class A offense defined in article two hundred twenty of the penal 7 law. 8 2. Every violent felony offender who on the effective date of this 9 article is then on parole or probation for a violent felony offense 10 shall within ten calendar days of such determination register with his 11 or her parole or probation officer. On each anniversary of the violent 12 felony offender's initial registration date thereafter, the provisions 13 of section one hundred sixty-seven of this article shall apply. Any 14 violent felony offender who fails or refuses to so comply shall be 15 subject to the same penalties as otherwise provided for in this article 16 which would be imposed upon a violent felony offender who fails or 17 refuses to so comply with the provisions of this article on or after 18 such effective date. 19 3. It shall be the duty of the parole or probation officer to inform 20 and register such violent felony offender according to the requirements 21 imposed by this article. A parole or probation officer shall give one 22 copy of the form to the violent felony offender and shall, within three 23 calendar days, send two copies electronically or otherwise to the divi- 24 sion which shall forward one copy electronically or otherwise to the law 25 enforcement agency having jurisdiction where the violent felony offender 26 resides upon his or her parole, probation, or upon any form of state or 27 local conditional release. 28 4. A petition for relief from this section is permitted to any violent 29 felony offender required to register while released on parole or 30 probation pursuant to section one hundred sixty-seven-i of this article. 31 § 167-b. Duration of registration. The duration of registration for a 32 violent felony offender shall be annually for a period of five years 33 from the initial date of registration, provided, however, that for a 34 violent predator, shall annually register and verify quarterly for a 35 minimum of ten years unless the court determines in accordance with 36 section one hundred sixty-seven-i of this article, that the person no 37 longer suffers from a mental abnormality that would make him or her 38 likely to engage in a predatory violent offense. 39 § 167-c. Registration requirements. Registration as required by this 40 article shall consist of a statement in writing signed by the violent 41 felony offender giving the information that is required by the division 42 and the division shall enter the information into an appropriate elec- 43 tronic database or file. 44 § 167-d. Notification of local law enforcement agencies of change of 45 address. 1. Upon receipt of a change of address by a violent felony 46 offender required to register under this article, the local law enforce- 47 ment agency where the violent felony offender last registered shall 48 within three calendar days of receipt of the new address, forward this 49 information to the division and to the local law enforcement agency 50 having jurisdiction of the new place of residence. 51 2. A change of address by a violent felony offender required to regis- 52 ter under this article shall be immediately reported by the division to 53 the appropriate law enforcement agency having jurisdiction where the 54 violent felony offender is residing. 55 3. Upon receipt of change of address information, the local law 56 enforcement agency having jurisdiction of the new place of residenceA. 3471--A 8 1 shall adhere to the notification provisions set forth in subdivision six 2 of section one hundred sixty-seven-f of this article. 3 § 167-e. Registration for change of address from another state. 1. A 4 violent felony offender who has been convicted of an offense which 5 requires registration under section one hundred sixty-seven-c of this 6 article shall register the new address with the division no later than 7 ten calendar days after such violent felony offender establishes resi- 8 dence in this state. The division shall coordinate with the designated 9 law enforcement agency of the state of which the individual departed on 10 information relevant to the duration of registration. 11 2. The division shall advise the board that the offender has estab- 12 lished residence in this state. The board shall determine whether the 13 offender is required to register with the division. If it is determined 14 that the offender is required to register, the division shall notify the 15 offender of his or her duty to register under this article and shall 16 require the offender to sign a form as may be required by the division 17 acknowledging that the duty to register and the procedure for registra- 18 tion has been explained to the offender. The division shall obtain on 19 such form the address where the offender expects to reside within the 20 state and the offender shall retain one copy of the form and send two 21 copies to the division which shall provide the information to the law 22 enforcement agency having jurisdiction where the offender expects to 23 reside within this state. No later than thirty days prior to the board 24 making a recommendation, the offender shall be notified that his or her 25 case is under review and that he or she is permitted to submit to the 26 board any information relevant to the review. After reviewing any infor- 27 mation obtained, and applying the guidelines established in subdivision 28 five of section one hundred sixty-seven-f of this article, the board 29 shall within sixty calendar days make a recommendation regarding the 30 level of notification pursuant to subdivision six of section one hundred 31 sixty-seven-f of this article and whether such offender shall be desig- 32 nated a violent felony offender or a violent predator. This recommenda- 33 tion shall be confidential and shall not be available for public 34 inspection. It shall be submitted by the board to the county court or 35 supreme court and to the district attorney in the county of residence of 36 the offender and to the offender. It shall be the duty of the county 37 court or supreme court in the county of residence of the offender, 38 applying the guidelines established in subdivision five of section one 39 hundred sixty-seven-f of this article, to determine the level of notifi- 40 cation pursuant to subdivision six of section one hundred sixty-seven-f 41 of this article and whether such offender shall be designated a violent 42 felony offender or a violent predator. At least thirty days prior to 43 the determination proceeding, such court shall notify the district 44 attorney and the offender, in writing, of the date of the determination 45 proceeding and the court shall also provide the district attorney and 46 offender with a copy of the recommendation received from the board and 47 any statement of the reasons for the recommendation received from the 48 board. This notice shall include the following statement or a substan- 49 tially similar statement: "This proceeding is being held to determine 50 whether you will be classified as a level 3 offender (risk of repeat 51 offense is high), a level 2 offender (risk of repeat offense is moder- 52 ate), or a level 1 offender (risk of repeat offense is low), or whether 53 you will be designated as a violent felony offender or a violent preda- 54 tor, which will determine how long you must register as an offender and 55 how much information can be provided to the public concerning your 56 registration. If you fail to appear at this proceeding, without suffi-A. 3471--A 9 1 cient excuse, it shall be held in your absence. Failure to appear may 2 result in a longer period of registration or a higher level of community 3 notification because you are not present to offer evidence or contest 4 evidence offered by the district attorney." The court shall also advise 5 the offender that he or she has a right to a hearing prior to the 6 court's determination, that he or she has the right to be represented by 7 counsel at the hearing and that counsel will be appointed if he or she 8 is financially unable to retain counsel. A returnable form shall be 9 enclosed in the court's notice to the offender on which the offender may 10 apply for assignment of counsel. If the offender applies for assignment 11 of counsel and the court finds that the offender is financially unable 12 to retain counsel, the court shall assign counsel to represent the 13 offender pursuant to article eighteen-B of the county law. If the 14 district attorney seeks a determination that differs from the recommen- 15 dation submitted by the board, at least ten days prior to the determi- 16 nation proceeding the district attorney shall provide to the court and 17 the offender a statement setting forth the determinations sought by the 18 district attorney together with the reasons for seeking such determi- 19 nations. The court shall allow the offender to appear and be heard. The 20 state shall appear by the district attorney, or his or her designee, who 21 shall bear the burden of proving the facts supporting the determinations 22 sought by clear and convincing evidence. It shall be the duty of the 23 court applying the guidelines established in subdivision five of section 24 one hundred sixty-seven-f of this article to determine the level of 25 notification pursuant to subdivision six of section one hundred sixty- 26 seven-f of this article and whether such offender shall be designated a 27 violent felony offender or a violent predator. Where there is a dispute 28 between the parties concerning the determinations, the court shall 29 adjourn the hearing as necessary to permit the offender or the district 30 attorney to obtain materials relevant to the determinations from the 31 state board of examiners of offenders or any state or local facility, 32 hospital, institution, office, agency, department or division. Such 33 materials may be obtained by subpoena if not voluntarily provided to the 34 requesting party. In making the determinations the court shall review 35 any victim's statement and any relevant materials and evidence submitted 36 by the offender and the district attorney and the recommendation and any 37 material submitted by the board, and may consider reliable hearsay 38 evidence submitted by either party, provided that it is relevant to the 39 determinations. If available, facts proven at trial or elicited at the 40 time of a plea of guilty shall be deemed established by clear and 41 convincing evidence and shall not be relitigated. The court shall render 42 an order setting forth its determinations and the findings of fact and 43 conclusions of law on which the determinations are based. A copy of the 44 order shall be submitted by the court to the division. Upon application 45 of either party, the court shall seal any portion of the court file or 46 record which contains material that is confidential under any state or 47 federal statute. Either party may appeal as of right from the order 48 pursuant to the provisions of articles fifty-five, fifty-six and fifty- 49 seven of the civil practice law and rules. Where counsel has been 50 assigned to represent the offender upon the ground that the offender is 51 financially unable to retain counsel, that assignment shall be continued 52 throughout the pendency of the appeal, and the person may appeal as a 53 poor person pursuant to article eighteen-B of the county law. 54 3. If an offender, having been given notice, including the time and 55 place of the determination proceeding in accordance with this section, 56 fails to appear at this proceeding, without sufficient excuse, the courtA. 3471--A 10 1 shall conduct the hearing and make the determinations in the manner set 2 forth in subdivision two of this section. 3 § 167-f. Board of examiners of violent felony offenders. 1. There 4 shall be a board of examiners of violent felony offenders which shall 5 possess the powers and duties specified in this section. Such board 6 shall consist of five members of the department who shall be appointed 7 by the governor, three of whom shall be experts in the field of the 8 behavior and treatment of violent felony offenders. The term of office 9 of each member of such board shall be for six years; provided, however, 10 that any member chosen to fill a vacancy occurring otherwise than by 11 expiration of term shall be appointed for the remainder of the unexpired 12 term of the member whom he or she is to succeed. In the event of the 13 inability to act of any member, the governor may appoint some competent 14 informed person to act in his or her stead during the continuance of 15 such disability. 16 2. The governor shall designate one of the members of the board as 17 chairman to serve in such capacity at the pleasure of the governor or 18 until the member's term of office expires and a successor is designated 19 in accordance with law, whichever first occurs. 20 3. Any member of the board may be removed by the governor for cause 21 after an opportunity to be heard. 22 4. Except as otherwise provided by law, a majority of the board shall 23 constitute a quorum for the transaction of all business of the board. 24 5. The board shall develop guidelines and procedures to assess the 25 risk of a repeat offense by such violent felony offender and the threat 26 posed to the public safety. Such guidelines shall be based upon, but not 27 limited to, the following: 28 (a) criminal history factors indicative of high risk of repeat 29 offense, including: (i) whether the violent felony offender has a mental 30 abnormality; 31 (ii) whether the violent felony offender's conduct was found to be 32 characterized by repetitive and compulsive behavior, associated with 33 drugs or alcohol; 34 (iii) whether the violent felony offender served the maximum term; 35 (iv) whether the violent felony offender committed the violent felony 36 offense against a child; 37 (v) the age of the violent felony offender at the time of the commis- 38 sion of the first violent offense; 39 (b) other criminal history factors to be considered in determining 40 risk, including: 41 (i) the relationship between such violent felony offender and the 42 victim; 43 (ii) whether the offense involved the use of a weapon, violence or 44 infliction of serious bodily injury; 45 (iii) the number, date and nature of prior offenses; 46 (c) conditions of release that minimize risk of re-offense, including 47 but not limited to whether the violent felony offender is under super- 48 vision; receiving counseling, therapy or treatment; or residing in a 49 home situation that provides guidance and supervision; 50 (d) physical conditions that minimize risk of re-offense, including 51 but not limited to advanced age or debilitating illness; 52 (e) whether psychological or psychiatric profiles indicate a risk of 53 recidivism; 54 (f) the violent felony offender's response to treatment; 55 (g) recent behavior, including behavior while confined;A. 3471--A 11 1 (h) recent threats or gestures against persons or expressions of 2 intent to commit additional offenses; and 3 (i) review of any victim impact statement. 4 6. Applying these guidelines, the board shall within sixty calendar 5 days prior to the discharge, parole or release of a violent felony 6 offender make a recommendation which shall be confidential and shall not 7 be available for public inspection, to the sentencing court as to wheth- 8 er such violent felony offender warrants the designation of violent 9 predator. In addition, the guidelines shall be applied by the board to 10 make a recommendation to the sentencing court, providing for one of the 11 following three levels of notification notwithstanding any other 12 provision of law depending upon the degree of the risk of re-offense by 13 the violent felony offender. 14 (a) If the risk of repeat offense is low, a level one designation 15 shall be given to such violent felony offender. In such case the law 16 enforcement agency having jurisdiction and the law enforcement agency 17 having had jurisdiction at the time of his or her conviction shall be 18 notified pursuant to this article. 19 (b) If the risk of repeat offense is moderate, a level two designation 20 shall be given to such violent felony offender. In such case the law 21 enforcement agency having jurisdiction and the law enforcement agency 22 having had jurisdiction at the time of his or her conviction shall be 23 notified and may disseminate relevant information which may include 24 approximate address based on violent felony offender's zip code, a 25 photograph of the offender, background information including the 26 offender's crime of conviction, modus of operation, type of victim 27 targeted and the description of special conditions imposed on the offen- 28 der to any entity with vulnerable populations related to the nature of 29 the offense committed by such violent felony offender. Any entity 30 receiving information on a violent felony offender may disclose or 31 further disseminate such information at their discretion. 32 (c) If the risk of repeat offense is high and there exists a threat to 33 the public safety, such violent felony offender shall be deemed a 34 "violent predator" and a level three designation shall be given to such 35 violent felony offender. In such case, the law enforcement agency having 36 jurisdiction and the law enforcement agency having had jurisdiction at 37 the time of his or her conviction shall be notified and may disseminate 38 relevant information which may include the violent felony offender's 39 exact address, a photograph of the offender, background information 40 including the offender's crime of conviction, modus of operation, type 41 of victim targeted, and the description of special conditions imposed on 42 the offender to any entity with vulnerable populations related to the 43 nature of the offense committed by such violent felony offenders. 44 Any entity receiving information on a violent felony offender may 45 disclose or further disseminate such information at their discretion. In 46 addition, in such case, the information described in this section shall 47 also be provided in the subdirectory established in this article and 48 notwithstanding any other provision of law, such information shall, upon 49 request, be made available to the public. 50 7. Upon request by the court, pursuant to section one hundred sixty- 51 seven-i of this article, the board shall provide an updated report 52 pertaining to the violent felony offender petitioning relief of duty to 53 register. 54 § 167-g. Review. Notwithstanding any other provision of law to the 55 contrary, any state or local correctional facility, hospital or institu- 56 tion shall forward relevant information pertaining to a violent felonyA. 3471--A 12 1 offender to be discharged, paroled or released to the board for review 2 no later than one hundred twenty days prior to the release or discharge 3 and the board shall make recommendations as provided in subdivision six 4 of section one hundred sixty-seven-f of this article within sixty days 5 of receipt of the information. Information may include but may not be 6 limited to the commitment file, medical file and treatment file pertain- 7 ing to such person. Such person shall be permitted to submit to the 8 board any information relevant to the review. 9 § 167-h. Judicial determination. 1. A determination that an offender 10 is a violent felony offender or a violent predator shall be made prior 11 to the discharge, parole or release of such offender by the sentencing 12 court after receiving a recommendation from the board pursuant to 13 section one hundred sixty-seven-f of this article. 14 2. In addition, the sentencing court shall also make a determination 15 with respect to the level of notification, after receiving a recommenda- 16 tion from the board pursuant to section one hundred sixty-seven-f of 17 this article. Both determinations of the sentencing court shall be made 18 thirty calendar days prior to discharge, parole or release. 19 3. In making the determination, the court shall review any victim's 20 statement and any materials submitted by the violent felony offender. 21 The court shall also allow the violent felony offender to appear and be 22 heard, and inform the violent felony offender of his or her right to 23 have counsel appointed, if necessary. 24 4. Upon determination that the risk of repeat offense and threat to 25 public safety is high, the sentencing court shall also notify the divi- 26 sion of such fact for the purposes of section one hundred sixty-seven-k 27 of this article. 28 5. Upon the reversal of a conviction of the violent felony offense, 29 the court shall order the expungement of any records required to be kept 30 pursuant to this section. 31 § 167-i. Petition for relief. Any violent felony offender required to 32 register pursuant to this article may be relieved of any further duty to 33 register upon the granting of a petition for relief by the sentencing 34 court. Upon receipt of the petition for relief, the court shall notify 35 the board and request an updated report pertaining to the violent felony 36 offender. After receiving the report from the board, the court may grant 37 or deny the relief sought. The court may consult with the victim prior 38 to making a determination on the petition. Such petition, if granted, 39 shall not relieve the petitioner of the duty to register pursuant to 40 this article upon conviction of any offense requiring registration in 41 the future. 42 § 167-j. Special telephone number. 1. Pursuant to section one hundred 43 sixty-three of this article, the division shall also operate a telephone 44 number that members of the public may call and inquire whether a named 45 individual required to register pursuant to this article is listed. The 46 division shall ascertain whether a named person reasonably appears to be 47 a person so listed and provide the caller with the relevant information 48 according to risk as described in subdivision six of section one hundred 49 sixty-seven-f of this article. The division shall decide whether the 50 named person reasonably appears to be a person listed, based upon infor- 51 mation from the caller providing information that shall include (a) an 52 exact street address, including apartment number, driver's license 53 number or birth date, along with additional information that may include 54 social security number, hair color, eye color, height, weight, distinc- 55 tive markings, ethnicity; or (b) any combination of the above listed 56 characteristics if an exact birth date or address is not available. IfA. 3471--A 13 1 three of the characteristics provided include ethnicity, hair color, and 2 eye color, other identifying characteristics shall be provided. Any 3 information identifying the victim by name, birth date, address or 4 relation to the person listed by the division shall be excluded by the 5 division. 6 2. Whenever there is reasonable cause to believe that any person or 7 group of persons is engaged in a pattern or practice of misuse of the 8 telephone number, the attorney general, any district attorney or any 9 person aggrieved by the misuse of the number is authorized to bring a 10 civil action in the appropriate court requesting preventive relief, 11 including an application for a permanent or temporary injunction, 12 restraining order or other order against the person or group of persons 13 responsible for the pattern or practice of misuse. The foregoing reme- 14 dies shall be independent of any other remedies or procedures that may 15 be available to an aggrieved party under other provisions of law. Such 16 person or group of persons shall be subject to a fine of not less than 17 five hundred dollars and not more than one thousand dollars. 18 3. The division shall submit to the legislature an annual report on 19 the operation of the telephone number. The annual report shall include, 20 but not be limited to, all of the following: 21 (a) number of calls received; 22 (b) a detailed outline of the amount of money expended and the manner 23 in which it was expended for purposes of this section; 24 (c) number of calls that resulted in an affirmative response and the 25 number of calls that resulted in a negative response with regard to 26 whether a named individual was listed; 27 (d) number of persons listed; and 28 (e) a summary of the success of the telephone number program based 29 upon selected factors. 30 § 167-k. Violent predator subdirectory. 1. The division shall maintain 31 a subdirectory of violent predators. The subdirectory shall include the 32 exact address and photograph of the violent felony offender along with 33 the following information, if available: name, physical description, age 34 and distinctive markings. Background information including the violent 35 felony offender's crime of conviction, modus of operation, type of 36 victim targeted, and a description of special conditions imposed on the 37 violent felony offender shall also be included. The subdirectory shall 38 have violent felony offender listings categorized by county and zip 39 code. A copy of the subdirectory shall annually be distributed to the 40 offices of local village, town or city police departments for purposes 41 of public access. Such departments shall require that a person in writ- 42 ing express a purpose in order to have access to the subdirectory and 43 such department shall maintain these requests. Any information identify- 44 ing the victim by name, birth date, address or relation to the violent 45 felony offender shall be excluded from the subdirectory distributed for 46 purposes of public access. The subdirectory provided for in this section 47 shall be updated periodically to maintain its efficiency and usefulness 48 and may be computer accessible. 49 2. Any person who uses information disclosed pursuant to this section 50 in violation of the law shall in addition to any other penalty or fine 51 imposed, be subject to a fine of not less than five hundred dollars and 52 not more than one thousand dollars. Unauthorized removal or duplication 53 of the subdirectory from the offices of local, village or city police 54 department shall be punishable by a fine not to exceed one thousand 55 dollars. In addition, the attorney general, any district attorney, or 56 any person aggrieved is authorized to bring a civil action in the appro-A. 3471--A 14 1 priate court requesting preventive relief, including an application for 2 a permanent or temporary injunction, restraining order, or other order 3 against the person or group of persons responsible for such action. The 4 foregoing remedies shall be independent of any other remedies or proce- 5 dures that may be available to an aggrieved party under other provisions 6 of law. 7 § 167-l. Immunity from liability. 1. No official, employee or agency, 8 whether public or private, shall be subject to any civil or criminal 9 liability for damages for any discretionary decision to release relevant 10 and necessary information pursuant to this section, provided that it is 11 shown that such official, employee or agency acted reasonably and in 12 good faith. The immunity provided under this section applies to the 13 release of relevant information to other employees or officials or to 14 the general public. 15 2. Nothing in this section shall be deemed to impose any civil or 16 criminal liability upon or to give rise to a cause of action against any 17 official, employee or agency, whether public or private, for failing to 18 release information as authorized in this section provided that it is 19 shown that such official, employee or agency acted reasonably and in 20 good faith. 21 § 167-m. Annual report. The division shall on or before February first 22 in each year file a report with the governor, and the legislature 23 detailing the program, compliance with provisions of this article and 24 effectiveness of the provisions of this article, together with any 25 recommendations to further enhance the intent of this article. 26 § 167-n. Failure to register; penalty. Any person required to register 27 pursuant to the provisions of this article who fails to register in the 28 manner and within the time periods provided for in this article shall be 29 guilty of a class E felony for the first offense, and for a second or 30 subsequent offense shall be guilty of a class D felony respectively in 31 accordance with sections 195.03 and 195.04 of the penal law. Any such 32 failure to register may also be the basis for revocation of parole 33 pursuant to section two hundred fifty-nine-i of the executive law which 34 shall be in addition to any other penalties provided by law. 35 § 167-o. Unauthorized release of information. The unauthorized release 36 of any information required by this article shall be a class B misdemea- 37 nor. 38 § 167-p. Severability. If any clause, sentence, paragraph, section or 39 part of this act shall be adjudged by any court of competent jurisdic- 40 tion to be invalid and after exhaustion of all further judicial review, 41 the judgment shall not affect, impair or invalidate the remainder there- 42 of, but shall be confined in its operation to the clause, sentence, 43 paragraph, section or part of this act directly involved in the contro- 44 versy in which the judgment shall have been rendered. 45 § 167-q. Subdirectory; internet posting. 1. The division shall main- 46 tain a subdirectory of level two and three violent felony offenders. The 47 subdirectory shall include the exact address, address of the offender's 48 place of employment and photograph of the violent felony offender along 49 with the following information, if available: name, physical 50 description, age and distinctive markings. Background information 51 including the violent felony offender's crime of conviction, modus of 52 operation, type of victim targeted, the name and address of any institu- 53 tion of higher education at which the violent felony offender is 54 enrolled, attends, is employed or resides and a description of special 55 conditions imposed on the violent felony offender shall also be 56 included. The subdirectory shall have violent felony offender listingsA. 3471--A 15 1 categorized by county and zip code. A copy of the subdirectory shall 2 annually be distributed to the offices of local village, town, city, 3 county or state law enforcement agencies for purposes of public access. 4 The division shall distribute monthly updates to the offices of local 5 village, town, city, county or state law enforcement agencies for 6 purposes of public access. Such departments shall require that a person 7 in writing provide their name and address prior to viewing the subdirec- 8 tory. Any information identifying the victim by name, birth date, 9 address or relation to the violent felony offender shall be excluded 10 from the subdirectory distributed for purposes of public access. The 11 subdirectory provided for herein shall be updated monthly to maintain 12 its efficiency and usefulness and shall be computer accessible. Such 13 subdirectory shall be made available at all times on the internet via 14 the division homepage. Any person may apply to the division to receive 15 automated e-mail notifications whenever a new or updated subdirectory 16 registration occurs in a geographic area specified by such person. The 17 division shall furnish such service at no charge to such person, who 18 shall request e-mail notification by county and/or zip code on forms 19 developed and provided by the division. E-mail notification is limited 20 to three geographic areas per e-mail account. 21 2. Any person who uses information disclosed pursuant to this section 22 in violation of the law shall in addition to any other penalty or fine 23 imposed, be subject to a fine of not less than five hundred dollars and 24 not more than one thousand dollars. Unauthorized removal or duplication 25 of the subdirectory from the offices of local, village or city police 26 department shall be punishable by a fine not to exceed one thousand 27 dollars. In addition, the attorney general, any district attorney, or 28 any person aggrieved is authorized to bring a civil action in the appro- 29 priate court requesting preventive relief, including an application for 30 a permanent or temporary injunction, restraining order, or other order 31 against the person or group of persons responsible for such action. The 32 foregoing remedies shall be independent of any other remedies or proce- 33 dures that may be available to an aggrieved party under other provisions 34 of law. 35 § 4. This act shall take effect on the one hundred eightieth day after 36 it shall have become a law; provided, however, that effective immediate- 37 ly, the addition, amendment and/or repeal of any rule or regulation 38 necessary for the implementation of this act on its effective date are 39 authorized to be made and completed on or before such effective date.
