Bill Text: NY S03316 | 2019-2020 | General Assembly | Introduced
Bill Title: Expands the statement of notice of a registration determination hearing to be given to a sex offender to include notice of the right to counsel and that the failure to appear shall be a violation of the sex offender registration act; removes the proof of residence exception for failure to mail the signed verification form; makes all violations of the sex offender registration act class D felonies.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2020-01-08 - REFERRED TO CRIME VICTIMS, CRIME AND CORRECTION [S03316 Detail]
Download: New_York-2019-S03316-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 3316 2019-2020 Regular Sessions IN SENATE February 5, 2019 ___________ Introduced by Sen. FUNKE -- read twice and ordered printed, and when printed to be committed to the Committee on Crime Victims, Crime and Correction AN ACT to amend the correction law, in relation to notice to sex offen- ders of their determination hearing and the penalty for violations by sex offenders The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Subdivisions 2 and 4 of section 168-d of the correction 2 law, subdivision 2 as amended and subdivision 4 as added by chapter 684 3 of the laws of 2005, are amended to read as follows: 4 2. Any sex offender, who is released on probation or discharged upon 5 payment of a fine, conditional discharge or unconditional discharge 6 shall, prior to such release or discharge, be informed of his or her 7 duty to register under this article by the court in which he or she was 8 convicted. At the time sentence is imposed, such sex offender shall 9 register with the division on a form prepared by the division. The court 10 shall require the sex offender to read and sign such form and to 11 complete the registration portion of such form. The court shall on such 12 form obtain the address where the sex offender expects to reside upon 13 his or her release, and the name and address of any institution of high- 14 er education he or she expects to be employed by, enrolled in, attending 15 or employed, whether for compensation or not, and whether he or she 16 expects to reside in a facility owned or operated by such an institu- 17 tion, and shall report such information to the division. The court shall 18 give one copy of the form to the sex offender and shall send two copies 19 to the division which shall forward the information to the law enforce- 20 ment agencies having jurisdiction. The court shall also notify the 21 district attorney and the sex offender of the date of the determination 22 proceeding to be held pursuant to subdivision three of this section, 23 which shall be held at least forty-five days after such notice is given. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD09413-01-9S. 3316 2 1 [This] The notice to the sex offender shall include the following state- 2 ment [or a substantially similar statement]: "This proceeding is being 3 held to determine whether you will be classified as a level 3 offender 4 (risk of repeat offense is high), a level 2 offender (risk of repeat 5 offense is moderate), or a level 1 offender (risk of repeat offense is 6 low), or whether you will be designated as a sexual predator, a sexually 7 violent offender or a predicate sex offender, which will determine how 8 long you must register as a sex offender and how much information can be 9 provided to the public concerning your registration. You have a right to 10 a hearing before the court makes these determinations. You have a right 11 to be represented by counsel at that hearing. Counsel will be provided 12 if you are financially unable to retain counsel. Failure to appear at 13 the hearing is a violation of this article. If you fail to appear at 14 this proceeding, [without sufficient excuse,] it shall be held in your 15 absence. Failure to appear may result in a longer period of registration 16 or a higher level of community notification because you are not present 17 to offer evidence or contest evidence offered by the district attorney." 18 [The court shall also advise the sex offender that he or she has a right19to a hearing prior to the court's determination, that he or she has the20right to be represented by counsel at the hearing and that counsel will21be appointed if he or she is financially unable to retain counsel.] If 22 the sex offender applies for assignment of counsel to represent him or 23 her at the hearing and counsel was not previously assigned to represent 24 the sex offender in the underlying criminal action, the court shall 25 determine whether the offender is financially unable to retain counsel. 26 If such a finding is made, the court shall assign counsel to represent 27 the sex offender pursuant to article eighteen-B of the county law. Where 28 the court orders a sex offender released on probation, such order must 29 include a provision requiring that he or she comply with the require- 30 ments of this article. Where such sex offender violates such provision, 31 probation may be immediately revoked in the manner provided by article 32 four hundred ten of the criminal procedure law. 33 4. If a sex offender, having been given notice of the determination 34 proceeding, including the time and place [of the determination proceed-35ing] thereof in accordance with this section, fails to appear and be 36 heard at [this] such proceeding, [without sufficient excuse,] the court 37 shall conduct the hearing and make the determinations in the manner set 38 forth in subdivision three of this section. 39 § 2. Section 168-f of the correction law is amended by adding a new 40 subdivision 1-a to read as follows: 41 1-a. Each sex offender shall appear at the determination proceeding, 42 set forth in subdivision three of section one hundred sixty-eight-d of 43 this article, subdivision two of section one hundred sixty-eight-k of 44 this article or subdivision three of section one hundred sixty-eight-n 45 of this article, held to determine the level of notification and whether 46 such sex offender shall be designated a sexual predator, sexually 47 violent offender, or predicate sex offender. 48 § 3. Paragraph (c) of subdivision 2 of section 168-f of the correction 49 law, as amended by chapter 453 of the laws of 1999, is amended to read 50 as follows: 51 (c) If the sex offender fails to mail the signed verification form to 52 the division within ten calendar days after receipt of the form, he or 53 she shall be in violation of this [section unless he proves that he or54she has not changed his or her residence address] article.S. 3316 3 1 § 4. Subdivisions 2 and 4 of section 168-k of the correction law, 2 subdivision 2 as amended and subdivision 4 as added by chapter 684 of 3 the laws of 2005, are amended to read as follows: 4 2. The division shall advise the board that the sex offender has 5 established residence in this state. The board shall determine whether 6 the sex offender is required to register with the division. If it is 7 determined that the sex offender is required to register, the division 8 shall notify the sex offender of his or her duty to register under this 9 article and shall require the sex offender to sign a form as may be 10 required by the division acknowledging that the duty to register and the 11 procedure for registration has been explained to the sex offender. The 12 division shall obtain on such form the address where the sex offender 13 expects to reside within the state and the sex offender shall retain one 14 copy of the form and send two copies to the division which shall provide 15 the information to the law enforcement agency having jurisdiction where 16 the sex offender expects to reside within this state. No later than 17 thirty days prior to the board making a recommendation, the sex offender 18 shall be notified that his or her case is under review and that he or 19 she is permitted to submit to the board any information relevant to the 20 review. After reviewing any information obtained, and applying the 21 guidelines established in subdivision five of section one hundred 22 sixty-eight-l of this article, the board shall within sixty calendar 23 days make a recommendation regarding the level of notification pursuant 24 to subdivision six of section one hundred sixty-eight-l of this article 25 and whether such sex offender shall be designated a sexual predator, 26 sexually violent offender, or predicate sex offender as defined in 27 subdivision seven of section one hundred sixty-eight-a of this article. 28 This recommendation shall be confidential and shall not be available for 29 public inspection. It shall be submitted by the board to the county 30 court or supreme court and to the district attorney in the county of 31 residence of the sex offender and to the sex offender. It shall be the 32 duty of the county court or supreme court in the county of residence of 33 the sex offender, applying the guidelines established in subdivision 34 five of section one hundred sixty-eight-l of this article, to determine 35 the level of notification pursuant to subdivision six of section one 36 hundred sixty-eight-l of this article and whether such sex offender 37 shall be designated a sexual predator, sexually violent offender, or 38 predicate sex offender as defined in subdivision seven of section one 39 hundred sixty-eight-a of this article. At least thirty days prior to the 40 determination proceeding, such court shall notify the district attorney 41 and the sex offender, in writing, of the date of the determination 42 proceeding and the court shall also provide the district attorney and 43 sex offender with a copy of the recommendation received from the board 44 and any statement of the reasons for the recommendation received from 45 the board. [This] The notice to the sex offender shall include the 46 following statement [or a substantially similar statement]: "This 47 proceeding is being held to determine whether you will be classified as 48 a level 3 offender (risk of repeat offense is high), a level 2 offender 49 (risk of repeat offense is moderate), or a level 1 offender (risk of 50 repeat offense is low), or whether you will be designated as a sexual 51 predator, a sexually violent offender or a predicate sex offender, which 52 will determine how long you must register as a sex offender and how much 53 information can be provided to the public concerning your registration. 54 You have a right to a hearing before the court makes these determi- 55 nations. You have a right to be represented by counsel at that hearing. 56 Counsel will be provided if you are financially unable to retain coun-S. 3316 4 1 sel. Failure to appear at the hearing is a violation of this article. If 2 you fail to appear at this proceeding, [without sufficient excuse,] it 3 shall be held in your absence. Failure to appear may result in a longer 4 period of registration or a higher level of community notification 5 because you are not present to offer evidence or contest evidence 6 offered by the district attorney." [The court shall also advise the sex7offender that he or she has a right to a hearing prior to the court's8determination, that he or she has the right to be represented by counsel9at the hearing and that counsel will be appointed if he or she is finan-10cially unable to retain counsel.] A returnable form shall be enclosed in 11 the court's notice to the sex offender on which the sex offender may 12 apply for assignment of counsel. If the sex offender applies for 13 assignment of counsel and the court finds that the offender is finan- 14 cially unable to retain counsel, the court shall assign counsel to 15 represent the sex offender pursuant to article eighteen-B of the county 16 law. If the district attorney seeks a determination that differs from 17 the recommendation submitted by the board, at least ten days prior to 18 the determination proceeding the district attorney shall provide to the 19 court and the sex offender a statement setting forth the determinations 20 sought by the district attorney together with the reasons for seeking 21 such determinations. The court shall allow the sex offender to appear 22 and be heard. The state shall appear by the district attorney, or his or 23 her designee, who shall bear the burden of proving the facts supporting 24 the determinations sought by clear and convincing evidence. It shall be 25 the duty of the court applying the guidelines established in subdivision 26 five of section one hundred sixty-eight-l of this article to determine 27 the level of notification pursuant to subdivision six of section one 28 hundred sixty-eight-l of this article and whether such sex offender 29 shall be designated a sexual predator, sexually violent offender, or 30 predicate sex offender as defined in subdivision seven of section one 31 hundred sixty-eight-a of this article. Where there is a dispute between 32 the parties concerning the determinations, the court shall adjourn the 33 hearing as necessary to permit the sex offender or the district attorney 34 to obtain materials relevant to the determinations from the state board 35 of examiners of sex offenders or any state or local facility, hospital, 36 institution, office, agency, department or division. Such materials may 37 be obtained by subpoena if not voluntarily provided to the requesting 38 party. In making the determinations the court shall review any victim's 39 statement and any relevant materials and evidence submitted by the sex 40 offender and the district attorney and the recommendation and any mate- 41 rial submitted by the board, and may consider reliable hearsay evidence 42 submitted by either party, provided that it is relevant to the determi- 43 nations. If available, facts proven at trial or elicited at the time of 44 a plea of guilty shall be deemed established by clear and convincing 45 evidence and shall not be relitigated. The court shall render an order 46 setting forth its determinations and the findings of fact and conclu- 47 sions of law on which the determinations are based. A copy of the order 48 shall be submitted by the court to the division. Upon application of 49 either party, the court shall seal any portion of the court file or 50 record which contains material that is confidential under any state or 51 federal statute. Either party may appeal as of right from the order 52 pursuant to the provisions of articles fifty-five, fifty-six and fifty- 53 seven of the civil practice law and rules. Where counsel has been 54 assigned to represent the sex offender upon the ground that the sex 55 offender is financially unable to retain counsel, that assignment shall 56 be continued throughout the pendency of the appeal, and the person mayS. 3316 5 1 appeal as a poor person pursuant to article eighteen-B of the county 2 law. 3 4. If a sex offender, having been given notice of the determination 4 proceeding, including the time and place [of the determination proceed-5ing] thereof in accordance with this section, fails to appear and be 6 heard at [this] such proceeding, [without sufficient excuse,] the court 7 shall conduct the hearing and make the determinations in the manner set 8 forth in subdivision two of this section. 9 § 5. Subdivisions 3 and 6 of section 168-n of the correction law, 10 subdivision 3 as amended and subdivision 6 as added by chapter 684 of 11 the laws of 2005, are amended to read as follows: 12 3. No later than thirty days prior to the board's recommendation, the 13 sex offender shall be notified that his or her case is under review and 14 that he or she is permitted to submit to the board any information rele- 15 vant to the review. Upon receipt of the board's recommendation, the 16 sentencing court shall determine whether the sex offender was previously 17 found to be eligible for assigned counsel in the underlying case. Where 18 such a finding was previously made, the court shall assign counsel to 19 represent the offender, pursuant to article eighteen-B of the county 20 law. At least twenty days prior to the determination proceeding, the 21 sentencing court shall notify the district attorney, the sex offender 22 and the sex offender's counsel, in writing, of the date of the determi- 23 nation proceeding and shall also provide the district attorney, the sex 24 offender and the sex offender's counsel with a copy of the recommenda- 25 tion received from the board and any statement of the reasons for the 26 recommendation received from the board. [This] The notice to the sex 27 offender shall include the following statement [or a substantially simi-28lar statement]: "This proceeding is being held to determine whether you 29 will be classified as a level 3 offender (risk of repeat offense is 30 high), a level 2 offender (risk of repeat offense is moderate), or a 31 level 1 offender (risk of repeat offense is low), or whether you will be 32 designated as a sexual predator, a sexually violent offender or a predi- 33 cate sex offender, which will determine how long you must register as a 34 sex offender and how much information can be provided to the public 35 concerning your registration. You have a right to a hearing before the 36 court makes these determinations. You have a right to be represented by 37 counsel at that hearing. Counsel will be provided if you are financially 38 unable to retain counsel. Failure to appear at the hearing is a 39 violation of this article. If you fail to appear at this proceeding, 40 [without sufficient excuse,] it shall be held in your absence. Failure 41 to appear may result in a longer period of registration or a higher 42 level of community notification because you are not present to offer 43 evidence or contest evidence offered by the district attorney." [The44written notice to the sex offender shall also advise the offender that45he or she has a right to a hearing prior to the court's determination,46and that he or she has the right to be represented by counsel at the47hearing.] If counsel has been assigned to represent the offender at the 48 determination proceeding, the notice shall also provide the name, 49 address and telephone number of the assigned counsel. Where counsel has 50 not been assigned, [the notice shall advise the sex offender that coun-51sel will be appointed if he or she is financially unable to retain coun-52sel, and] a returnable form shall be enclosed in the court's notice to 53 the sex offender on which the sex offender may apply for assignment of 54 counsel. If the sex offender applies for assignment of counsel and the 55 court finds that the offender is financially unable to retain counsel, 56 the court shall assign counsel to represent the sex offender pursuant toS. 3316 6 1 article eighteen-B of the county law. If the district attorney seeks a 2 determination that differs from the recommendation submitted by the 3 board, at least ten days prior to the determination proceeding the 4 district attorney shall provide to the court and the sex offender a 5 statement setting forth the determinations sought by the district attor- 6 ney together with the reasons for seeking such determinations. The court 7 shall allow the sex offender to appear and be heard. The state shall 8 appear by the district attorney, or his or her designee, who shall bear 9 the burden of proving the facts supporting the determinations sought by 10 clear and convincing evidence. Where there is a dispute between the 11 parties concerning the determinations, the court shall adjourn the hear- 12 ing as necessary to permit the sex offender or the district attorney to 13 obtain materials relevant to the determinations from the state board of 14 examiners of sex offenders or any state or local facility, hospital, 15 institution, office, agency, department or division. Such materials may 16 be obtained by subpoena if not voluntarily provided to the requesting 17 party. In making the determinations the court shall review any victim's 18 statement and any relevant materials and evidence submitted by the sex 19 offender and the district attorney and the recommendation and any mate- 20 rials submitted by the board, and may consider reliable hearsay evidence 21 submitted by either party, provided that it is relevant to the determi- 22 nations. Facts previously proven at trial or elicited at the time of 23 entry of a plea of guilty shall be deemed established by clear and 24 convincing evidence and shall not be relitigated. The court shall render 25 an order setting forth its determinations and the findings of fact and 26 conclusions of law on which the determinations are based. A copy of the 27 order shall be submitted by the court to the division. Upon application 28 of either party, the court shall seal any portion of the court file or 29 record which contains material that is confidential under any state or 30 federal statute. Either party may appeal as of right from the order 31 pursuant to the provisions of articles fifty-five, fifty-six and fifty- 32 seven of the civil practice law and rules. Where counsel has been 33 assigned to represent the sex offender upon the ground that the sex 34 offender is financially unable to retain counsel, that assignment shall 35 be continued throughout the pendency of the appeal, and the person may 36 appeal as a poor person pursuant to article eighteen-B of the county 37 law. 38 6. If a sex offender, having been given notice of the determination 39 proceeding, including the time and place [of the determination proceed-40ing] thereof in accordance with this section, fails to appear and be 41 heard at [this] such proceeding, [without sufficient excuse,] the court 42 shall conduct the hearing and make the determinations in the manner set 43 forth in subdivision three of this section. 44 § 6. Section 168-t of the correction law, as amended by chapter 373 of 45 the laws of 2007, is amended to read as follows: 46 § 168-t. [Penalty] Failure to register, appear at the determination 47 proceeding, annually verify, personally verify, notify of status at an 48 institution of higher education, notify of address change or change of 49 status at an institution of higher education, notify of establishment of 50 residence in state, or comply with the prohibition of employment on 51 motor vehicles engaged in retail sale of frozen desserts; penalty. 1. 52 Any sex offender required to register [or to verify] pursuant to the 53 provisions of this article [who fails to register or verify in the54manner and within the time periods provided for in this article shall55be] is guilty of [a class E felony upon conviction for the first56offense, and upon conviction for a second or subsequent offense shall beS. 3316 7 1guilty of] failure to register, appear at the determination proceeding, 2 annually verify, personally verify, notify of status at an institution 3 of higher education, notify of address change or change of status at an 4 institution of higher education, notify of establishment of residence in 5 state, or comply with the prohibition of employment on motor vehicles 6 engaged in the retail sale of frozen desserts when he or she: 7 (a) Fails to register with the division on a form prepared by the 8 division (i) at least ten calendar days prior to discharge, parole, 9 release to post-release supervision or release from any state or local 10 correctional facility, hospital or institution where he or she was 11 confined or committed, or (ii) at the time sentence is imposed for any 12 sex offender released on probation or discharged upon payment of a fine, 13 conditional discharge or unconditional discharge, or (iii) upon the 14 division's request following a determination by the board that the 15 offender is required to register pursuant to subdivision two of section 16 one hundred sixty-eight-k of this article; or 17 (b) Fails to appear at the determination proceeding, set forth in 18 subdivision three of section one hundred sixty-eight-d of this article, 19 subdivision two of section one hundred sixty-eight-k of this article or 20 subdivision three of section one hundred sixty-eight-n of this article, 21 held to determine the level of notification and whether such sex offen- 22 der shall be designated a sexual predator, sexually violent offender, or 23 predicate sex offender; or 24 (c) Fails to sign and return to the division the annual verification 25 form mailed by the division to his or her last reported address pursuant 26 to section one hundred sixty-eight-b of this article within ten calendar 27 days after receipt of the form; or 28 (d) Fails to personally verify his or her address with the local law 29 enforcement agency every ninety calendar days after the date of release 30 or commencement of parole or post-release supervision, or probation, or 31 release on payment of a fine, conditional discharge or unconditional 32 discharge after having been given a level three designation or having 33 been designated a sexual predator; or 34 (e) Fails to provide the division with the name and address of any 35 institution of higher education he or she expects to be employed by, 36 enrolled in, attending or employed at, whether for compensation or not, 37 and whether he or she expects to reside in a facility owned or operated 38 by such an institution; or 39 (f) Fails to notify the division no later than ten calendar days after 40 any change of address; or 41 (g) Fails to notify the division no later than ten calendar days after 42 any change of status at an institution of higher education; or 43 (h) Fails to notify the division within ten calendar days after estab- 44 lishing residence in this state in the case of a sex offender who has 45 been convicted of an offense which requires registration under paragraph 46 (d) of subdivision two of section one hundred sixty-eight-a of this 47 article or paragraph (b) of subdivision three of section one hundred 48 sixty-eight-a of this article; or 49 (i) Violates the provisions of section one hundred sixty-eight-v of 50 this article. 51 2. Failure to register, appear at the determination proceeding, annu- 52 ally verify, personally verify, notify of status at an institution of 53 higher education, notify of address change or change of status at an 54 institution of higher education, notify of establishment of residence in 55 state, or comply with the prohibition of employment on motor vehicles 56 engaged in the retail sale of frozen desserts is a class D felony. [AnyS. 3316 8 1sex offender who violates the provisions of section one hundred sixty-2eight-v of this article shall be guilty of a class A misdemeanor upon3conviction for the first offense, and upon conviction for a second or4subsequent offense shall be guilty of a class D felony.] 5 3. Any such failure [to register or verify] may also be the basis for 6 revocation of parole pursuant to section two hundred fifty-nine-i of the 7 executive law or the basis for revocation of probation pursuant to arti- 8 cle four hundred ten of the criminal procedure law. 9 § 7. This act shall take effect immediately.
