Bill Text: NY S03138 | 2013-2014 | General Assembly | Amended
Bill Title: Relates to sex offender risk assessment instruments.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Introduced - Dead) 2014-05-21 - PRINT NUMBER 3138A [S03138 Detail]
Download: New_York-2013-S03138-Amended.html
S T A T E O F N E W Y O R K
________________________________________________________________________
3138--A
2013-2014 Regular Sessions
I N S E N A T E
January 30, 2013
___________
Introduced by Sens. KRUEGER, RIVERA -- read twice and ordered printed,
and when printed to be committed to the Committee on Crime Victims,
Crime and Correction -- recommitted to the Committee on Crime Victims,
Crime and Correction in accordance with Senate Rule 6, sec. 8 --
committee discharged, bill amended, ordered reprinted as amended and
recommitted to said committee
AN ACT to amend the correction law, in relation to risk assessment
instruments for sex offenders
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. Subdivision 3 of section 168-d of the correction law, as
2 amended by chapter 11 of the laws of 2002, is amended to read as
3 follows:
4 3. For sex offenders released on probation or discharged upon payment
5 of a fine, conditional discharge or unconditional discharge, it shall be
6 the duty of the court applying the guidelines AND RISK ASSESSMENT
7 INSTRUMENT established in subdivision five of section one hundred
8 sixty-eight-l of this article to determine the level of notification
9 pursuant to subdivision six of section one hundred sixty-eight-l of this
10 article and whether such sex offender shall be designated a sexual pred-
11 ator, sexually violent offender, or predicate sex offender as defined in
12 subdivision seven of section one hundred sixty-eight-a of this article.
13 At least fifteen days prior to the determination proceeding, the
14 district attorney shall provide to the court and the sex offender a
15 written statement setting forth the determinations sought by the
16 district attorney together with the reasons for seeking such determi-
17 nations. The court shall allow the sex offender to appear and be heard.
18 The state shall appear by the district attorney, or his or her designee,
19 who shall bear the burden of proving the facts supporting the determi-
20 nations sought by clear and convincing evidence. Where there is a
21 dispute between the parties concerning the determinations, the court
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD00904-03-4
S. 3138--A 2
1 shall adjourn the hearing as necessary to permit the sex offender or the
2 district attorney to obtain materials relevant to the determinations
3 from any state or local facility, hospital, institution, office, agency,
4 department or division. Such materials may be obtained by subpoena if
5 not voluntarily provided to the requesting party. In making the determi-
6 nations, the court shall review any victim's statement and any relevant
7 materials and evidence submitted by the sex offender and the district
8 attorney and the court may consider reliable hearsay evidence submitted
9 by either party provided that it is relevant to the determinations.
10 Facts previously proven at trial or elicited at the time of entry of a
11 plea of guilty shall be deemed established by clear and convincing
12 evidence and shall not be relitigated. The court shall render an order
13 setting forth its determinations and the findings of fact and conclu-
14 sions of law on which the determinations are based. A copy of the order
15 shall be submitted by the court to the division. Upon application of
16 either party, the court shall seal any portion of the court file or
17 record which contains material that is confidential under any state or
18 federal statute. Either party may appeal as of right from the order
19 pursuant to the provisions of articles fifty-five, fifty-six and fifty-
20 seven of the civil practice law and rules. Where counsel has been
21 assigned to represent the sex offender upon the ground that the sex
22 offender is financially unable to retain counsel, that assignment shall
23 be continued throughout the pendency of the appeal, and the person may
24 appeal as a poor person pursuant to article eighteen-B of the county
25 law.
26 S 2. Subdivision 2 of section 168-k of the correction law, as amended
27 by chapter 684 of the laws of 2005, is amended to read as follows:
28 2. The division shall advise the board that the sex offender has
29 established residence in this state. The board shall determine whether
30 the sex offender is required to register with the division. If it is
31 determined that the sex offender is required to register, the division
32 shall notify the sex offender of his or her duty to register under this
33 article and shall require the sex offender to sign a form as may be
34 required by the division acknowledging that the duty to register and the
35 procedure for registration has been explained to the sex offender. The
36 division shall obtain on such form the address where the sex offender
37 expects to reside within the state and the sex offender shall retain one
38 copy of the form and send two copies to the division which shall provide
39 the information to the law enforcement agency having jurisdiction where
40 the sex offender expects to reside within this state. No later than
41 thirty days prior to the board making a recommendation, the sex offender
42 shall be notified that his or her case is under review and that he or
43 she is permitted to submit to the board any information relevant to the
44 review. After reviewing any information obtained, and applying the
45 guidelines AND RISK ASSESSMENT INSTRUMENT established in subdivision
46 five of section one hundred sixty-eight-l of this article, the board
47 shall within sixty calendar days make a recommendation regarding the
48 level of notification pursuant to subdivision six of section one hundred
49 sixty-eight-l of this article and whether such sex offender shall be
50 designated a sexual predator, sexually violent offender, or predicate
51 sex offender as defined in subdivision seven of section one hundred
52 sixty-eight-a of this article. This recommendation shall be confiden-
53 tial and shall not be available for public inspection. It shall be
54 submitted by the board to the county court or supreme court and to the
55 district attorney in the county of residence of the sex offender and to
56 the sex offender. It shall be the duty of the county court or supreme
S. 3138--A 3
1 court in the county of residence of the sex offender, applying the
2 guidelines AND RISK ASSESSMENT INSTRUMENT established in subdivision
3 five of section one hundred sixty-eight-l of this article, to determine
4 the level of notification pursuant to subdivision six of section one
5 hundred sixty-eight-l of this article and whether such sex offender
6 shall be designated a sexual predator, sexually violent offender, or
7 predicate sex offender as defined in subdivision seven of section one
8 hundred sixty-eight-a of this article. At least thirty days prior to the
9 determination proceeding, such court shall notify the district attorney
10 and the sex offender, in writing, of the date of the determination
11 proceeding and the court shall also provide the district attorney and
12 sex offender with a copy of the recommendation received from the board
13 and any statement of the reasons for the recommendation received from
14 the board. This notice shall include the following statement or a
15 substantially similar statement: "This proceeding is being held to
16 determine whether you will be classified as a level 3 offender (risk of
17 repeat offense is high), a level 2 offender (risk of repeat offense is
18 moderate), or a level 1 offender (risk of repeat offense is low), or
19 whether you will be designated as a sexual predator, a sexually violent
20 offender or a predicate sex offender, which will determine how long you
21 must register as a sex offender and how much information can be provided
22 to the public concerning your registration. If you fail to appear at
23 this proceeding, without sufficient excuse, it shall be held in your
24 absence. Failure to appear may result in a longer period of registration
25 or a higher level of community notification because you are not present
26 to offer evidence or contest evidence offered by the district attorney."
27 The court shall also advise the sex offender that he or she has a right
28 to a hearing prior to the court's determination, that he or she has the
29 right to be represented by counsel at the hearing and that counsel will
30 be appointed if he or she is financially unable to retain counsel. A
31 returnable form shall be enclosed in the court's notice to the sex
32 offender on which the sex offender may apply for assignment of counsel.
33 If the sex offender applies for assignment of counsel and the court
34 finds that the offender is financially unable to retain counsel, the
35 court shall assign counsel to represent the sex offender pursuant to
36 article eighteen-B of the county law. If the district attorney seeks a
37 determination that differs from the recommendation submitted by the
38 board, at least ten days prior to the determination proceeding the
39 district attorney shall provide to the court and the sex offender a
40 statement setting forth the determinations sought by the district attor-
41 ney together with the reasons for seeking such determinations. The court
42 shall allow the sex offender to appear and be heard. The state shall
43 appear by the district attorney, or his or her designee, who shall bear
44 the burden of proving the facts supporting the determinations sought by
45 clear and convincing evidence. It shall be the duty of the court apply-
46 ing the guidelines AND RISK ASSESSMENT INSTRUMENT established in subdi-
47 vision five of section one hundred sixty-eight-l of this article to
48 determine the level of notification pursuant to subdivision six of
49 section one hundred sixty-eight-l of this article and whether such sex
50 offender shall be designated a sexual predator, sexually violent offen-
51 der, or predicate sex offender as defined in subdivision seven of
52 section one hundred sixty-eight-a of this article. Where there is a
53 dispute between the parties concerning the determinations, the court
54 shall adjourn the hearing as necessary to permit the sex offender or the
55 district attorney to obtain materials relevant to the determinations
56 from the state board of examiners of sex offenders or any state or local
S. 3138--A 4
1 facility, hospital, institution, office, agency, department or division.
2 Such materials may be obtained by subpoena if not voluntarily provided
3 to the requesting party. In making the determinations the court shall
4 review any victim's statement and any relevant materials and evidence
5 submitted by the sex offender and the district attorney and the recom-
6 mendation and any material submitted by the board, and may consider
7 reliable hearsay evidence submitted by either party, provided that it is
8 relevant to the determinations. If available, facts proven at trial or
9 elicited at the time of a plea of guilty shall be deemed established by
10 clear and convincing evidence and shall not be relitigated. The court
11 shall render an order setting forth its determinations and the findings
12 of fact and conclusions of law on which the determinations are based. A
13 copy of the order shall be submitted by the court to the division. Upon
14 application of either party, the court shall seal any portion of the
15 court file or record which contains material that is confidential under
16 any state or federal statute. Either party may appeal as of right from
17 the order pursuant to the provisions of articles fifty-five, fifty-six
18 and fifty-seven of the civil practice law and rules. Where counsel has
19 been assigned to represent the sex offender upon the ground that the sex
20 offender is financially unable to retain counsel, that assignment shall
21 be continued throughout the pendency of the appeal, and the person may
22 appeal as a poor person pursuant to article eighteen-B of the county
23 law.
24 S 3. Subdivision 5 and the opening paragraph of subdivision 6 of
25 section 168-l of the correction law, subdivision 5 as added by chapter
26 192 of the laws of 1995, subparagraph (i) of paragraph (a) of subdivi-
27 sion 5 and the opening paragraph of subdivision 6 as amended by chapter
28 11 of the laws of 2002, are amended and a new subdivision 5-a is added
29 to read as follows:
30 5. The board shall develop guidelines and procedures AND USE A VALI-
31 DATED RISK ASSESSMENT INSTRUMENT to assess the risk of a repeat offense
32 by such sex offender and the threat posed to the public safety. SUCH
33 RISK ASSESSMENT INSTRUMENT SHALL BE PERIODICALLY SUBJECTED TO EMPIRICAL
34 RE-VALIDATION. Such guidelines shall [be based upon,] INCORPORATE
35 FACTORS FOUND TO BE PREDICTIVE OF RISK OF RE-OFFENSE, INCLUDING but not
36 limited to, the following:
37 (a) criminal history factors indicative of high risk of repeat
38 offense, including:
39 (i) whether the sex offender has a mental abnormality or personality
40 disorder that makes him or her likely to engage in predatory sexually
41 violent offenses;
42 (ii) whether the sex offender's conduct was found to be characterized
43 by repetitive and compulsive behavior, associated with drugs or alcohol;
44 (iii) whether the sex offender served the maximum term;
45 (iv) whether the sex offender committed the felony sex offense against
46 a child;
47 (v) the age of the sex offender at the time of the commission of the
48 first sex offense;
49 (b) other criminal history factors to be considered in determining
50 risk, including:
51 (i) the relationship between such sex offender and the victim;
52 (ii) whether the offense involved the use of a weapon, violence or
53 infliction of serious bodily injury;
54 (iii) the number, date and nature of prior offenses;
55 (c) conditions of release that minimize risk or re-offense, including
56 but not limited to whether the sex offender is under supervision;
S. 3138--A 5
1 receiving counseling, therapy or treatment; or residing in a home situ-
2 ation that provides guidance and supervision;
3 (d) physical conditions that minimize risk of re-offense, including
4 but not limited to advanced age or debilitating illness;
5 (e) whether psychological or psychiatric profiles indicate a risk of
6 recidivism;
7 (f) the sex offender's response to treatment;
8 (g) recent behavior, including behavior while confined;
9 (h) recent threats or gestures against persons or expressions of
10 intent to commit additional offenses; and
11 (i) review of any victim impact statement.
12 5-A. (A) THE BOARD IN CONSULTATION WITH THE DEPARTMENT AND THE DIVI-
13 SION OF CRIMINAL JUSTICE SERVICES SHALL MAINTAIN A STATEWIDE DATABASE OF
14 SEX OFFENDER RECIDIVISM STATISTICS.
15 (B) THE BOARD IN CONSULTATION WITH THE DEPARTMENT AND THE DIVISION OF
16 CRIMINAL JUSTICE SERVICES SHALL CONDUCT A PERIODIC RETROACTIVE STUDY AT
17 LEAST EVERY FIVE YEARS TO DETERMINE THE PREDICTIVE VALUE OF THE RISK
18 ASSESSMENT INSTRUMENT USED TO ASSIGN RISK OF REPEAT OFFENSE LEVELS TO
19 SEX OFFENDERS PURSUANT TO SUBDIVISION SIX OF THIS SECTION. AFTER EACH
20 SUCH STUDY THE BOARD SHALL PREPARE A DETAILED REPORT TO THE GOVERNOR AND
21 LEGISLATURE DETERMINING THE PREDICTIVE VALUE OF THE RISK ASSESSMENT
22 INSTRUMENT AND THE PREDICTIVE VALUE OF EACH FACTOR CONSIDERED IN THE
23 OVERALL RISK ASSESSMENT WHEN APPLIED TO THE STATEWIDE DATABASE MAIN-
24 TAINED PURSUANT TO PARAGRAPH (A) OF THIS SUBDIVISION. THE REPORT SHALL
25 INCLUDE RECOMMENDED CHANGES TO THE GUIDELINES AND RISK ASSESSMENT
26 INSTRUMENT TO ENHANCE THEIR PREDICTIVE CAPABILITIES FOR THE PURPOSE OF
27 PERIODIC REVALIDATION OF SUCH GUIDELINES AND RISK ASSESSMENT INSTRUMENT
28 PURSUANT TO SUBDIVISION FIVE OF THIS SECTION. THE FIRST SUCH STUDY SHALL
29 BE COMPLETED WITHIN TWO YEARS OF THE EFFECTIVE DATE OF THIS SUBDIVISION.
30 Applying these guidelines AND THE VALIDATED RISK ASSESSMENT
31 INSTRUMENT, the board shall within sixty calendar days prior to the
32 discharge, parole, release to post-release supervision or release of a
33 sex offender make a recommendation which shall be confidential and shall
34 not be available for public inspection, to the sentencing court as to
35 whether such sex offender warrants the designation of sexual predator,
36 sexually violent offender, or predicate sex offender as defined in
37 subdivision seven of section one hundred sixty-eight-a of this article.
38 In addition, the guidelines AND SUCH INSTRUMENT shall be applied by the
39 board to make a recommendation to the sentencing court which shall be
40 confidential and shall not be available for public inspection, providing
41 for one of the following three levels of notification depending upon the
42 degree of the risk of re-offense by the sex offender.
43 S 4. Subdivisions 1 and 2 of section 168-n of the correction law,
44 subdivision 1 as amended by chapter 11 of the laws of 2002 and subdivi-
45 sion 2 as amended by chapter 453 of the laws of 1999, are amended to
46 read as follows:
47 1. A determination that an offender is a sexual predator, sexually
48 violent offender, or predicate sex offender as defined in subdivision
49 seven of section one hundred sixty-eight-a of this article shall be made
50 prior to the discharge, parole, release to post-release supervision or
51 release of such offender by the sentencing court applying the guidelines
52 AND RISK ASSESSMENT INSTRUMENT established in subdivision five of
53 section one hundred sixty-eight-l of this article after receiving a
54 recommendation from the board pursuant to section one hundred sixty-
55 eight-l of this article.
S. 3138--A 6
1 2. In addition, applying the guidelines AND RISK ASSESSMENT INSTRUMENT
2 established in subdivision five of section one hundred sixty-eight-l of
3 this article, the sentencing court shall also make a determination with
4 respect to the level of notification, after receiving a recommendation
5 from the board pursuant to section one hundred sixty-eight-l of this
6 article. Both determinations of the sentencing court shall be made thir-
7 ty calendar days prior to discharge, parole or release.
8 S 5. This act shall take effect on the one hundred eightieth day after
9 it shall have become a law.
