Bill Text: NY S04191 | 2019-2020 | General Assembly | Introduced
Bill Title: Relates to sex offender risk assessment instruments.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2020-01-08 - REFERRED TO CRIME VICTIMS, CRIME AND CORRECTION [S04191 Detail]
Download: New_York-2019-S04191-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 4191 2019-2020 Regular Sessions IN SENATE March 4, 2019 ___________ Introduced by Sen. KRUEGER -- 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 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 22 shall adjourn the hearing as necessary to permit the sex offender or the 23 district attorney to obtain materials relevant to the determinations 24 from any state or local facility, hospital, institution, office, agency, EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD06639-01-9S. 4191 2 1 department or division. Such materials may be obtained by subpoena if 2 not voluntarily provided to the requesting party. In making the determi- 3 nations, the court shall review any victim's statement and any relevant 4 materials and evidence submitted by the sex offender and the district 5 attorney and the court may consider reliable hearsay evidence submitted 6 by either party provided that it is relevant to the determinations. 7 Facts previously proven at trial or elicited at the time of entry of a 8 plea of guilty shall be deemed established by clear and convincing 9 evidence and shall not be relitigated. The court shall render an order 10 setting forth its determinations and the findings of fact and conclu- 11 sions of law on which the determinations are based. A copy of the order 12 shall be submitted by the court to the division. Upon application of 13 either party, the court shall seal any portion of the court file or 14 record which contains material that is confidential under any state or 15 federal statute. Either party may appeal as of right from the order 16 pursuant to the provisions of articles fifty-five, fifty-six and fifty- 17 seven of the civil practice law and rules. Where counsel has been 18 assigned to represent the sex offender upon the ground that the sex 19 offender is financially unable to retain counsel, that assignment shall 20 be continued throughout the pendency of the appeal, and the person may 21 appeal as a poor person pursuant to article eighteen-B of the county 22 law. 23 § 2. Subdivision 2 of section 168-k of the correction law, as amended 24 by chapter 684 of the laws of 2005, is amended to read as follows: 25 2. The division shall advise the board that the sex offender has 26 established residence in this state. The board shall determine whether 27 the sex offender is required to register with the division. If it is 28 determined that the sex offender is required to register, the division 29 shall notify the sex offender of his or her duty to register under this 30 article and shall require the sex offender to sign a form as may be 31 required by the division acknowledging that the duty to register and the 32 procedure for registration has been explained to the sex offender. The 33 division shall obtain on such form the address where the sex offender 34 expects to reside within the state and the sex offender shall retain one 35 copy of the form and send two copies to the division which shall provide 36 the information to the law enforcement agency having jurisdiction where 37 the sex offender expects to reside within this state. No later than 38 thirty days prior to the board making a recommendation, the sex offender 39 shall be notified that his or her case is under review and that he or 40 she is permitted to submit to the board any information relevant to the 41 review. After reviewing any information obtained, and applying the 42 guidelines and risk assessment instrument established in subdivision 43 five of section one hundred sixty-eight-l of this article, the board 44 shall within sixty calendar days make a recommendation regarding the 45 level of notification pursuant to subdivision six of section one hundred 46 sixty-eight-l of this article and whether such sex offender shall be 47 designated a sexual predator, sexually violent offender, or predicate 48 sex offender as defined in subdivision seven of section one hundred 49 sixty-eight-a of this article. This recommendation shall be confiden- 50 tial and shall not be available for public inspection. It shall be 51 submitted by the board to the county court or supreme court and to the 52 district attorney in the county of residence of the sex offender and to 53 the sex offender. It shall be the duty of the county court or supreme 54 court in the county of residence of the sex offender, applying the 55 guidelines and risk assessment instrument established in subdivision 56 five of section one hundred sixty-eight-l of this article, to determineS. 4191 3 1 the level of notification pursuant to subdivision six of section one 2 hundred sixty-eight-l of this article and whether such sex offender 3 shall be designated a sexual predator, sexually violent offender, or 4 predicate sex offender as defined in subdivision seven of section one 5 hundred sixty-eight-a of this article. At least thirty days prior to the 6 determination proceeding, such court shall notify the district attorney 7 and the sex offender, in writing, of the date of the determination 8 proceeding and the court shall also provide the district attorney and 9 sex offender with a copy of the recommendation received from the board 10 and any statement of the reasons for the recommendation received from 11 the board. This notice shall include the following statement or a 12 substantially similar statement: "This proceeding is being held to 13 determine whether you will be classified as a level 3 offender (risk of 14 repeat offense is high), a level 2 offender (risk of repeat offense is 15 moderate), or a level 1 offender (risk of repeat offense is low), or 16 whether you will be designated as a sexual predator, a sexually violent 17 offender or a predicate sex offender, which will determine how long you 18 must register as a sex offender and how much information can be provided 19 to the public concerning your registration. If you fail to appear at 20 this proceeding, without sufficient excuse, it shall be held in your 21 absence. Failure to appear may result in a longer period of registration 22 or a higher level of community notification because you are not present 23 to offer evidence or contest evidence offered by the district attorney." 24 The court shall also advise the sex offender that he or she has a right 25 to a hearing prior to the court's determination, that he or she has the 26 right to be represented by counsel at the hearing and that counsel will 27 be appointed if he or she is financially unable to retain counsel. A 28 returnable form shall be enclosed in the court's notice to the sex 29 offender on which the sex offender may apply for assignment of counsel. 30 If the sex offender applies for assignment of counsel and the court 31 finds that the offender is financially unable to retain counsel, the 32 court shall assign counsel to represent the sex offender pursuant to 33 article eighteen-B of the county law. If the district attorney seeks a 34 determination that differs from the recommendation submitted by the 35 board, at least ten days prior to the determination proceeding the 36 district attorney shall provide to the court and the sex offender a 37 statement setting forth the determinations sought by the district attor- 38 ney together with the reasons for seeking such determinations. The court 39 shall allow the sex offender to appear and be heard. The state shall 40 appear by the district attorney, or his or her designee, who shall bear 41 the burden of proving the facts supporting the determinations sought by 42 clear and convincing evidence. It shall be the duty of the court apply- 43 ing the guidelines and risk assessment instrument established in subdi- 44 vision five of section one hundred sixty-eight-l of this article to 45 determine the level of notification pursuant to subdivision six of 46 section one hundred sixty-eight-l of this article and whether such sex 47 offender shall be designated a sexual predator, sexually violent offen- 48 der, or predicate sex offender as defined in subdivision seven of 49 section one hundred sixty-eight-a of this article. Where there is a 50 dispute between the parties concerning the determinations, the court 51 shall adjourn the hearing as necessary to permit the sex offender or the 52 district attorney to obtain materials relevant to the determinations 53 from the state board of examiners of sex offenders or any state or local 54 facility, hospital, institution, office, agency, department or division. 55 Such materials may be obtained by subpoena if not voluntarily provided 56 to the requesting party. In making the determinations the court shallS. 4191 4 1 review any victim's statement and any relevant materials and evidence 2 submitted by the sex offender and the district attorney and the recom- 3 mendation and any material submitted by the board, and may consider 4 reliable hearsay evidence submitted by either party, provided that it is 5 relevant to the determinations. If available, facts proven at trial or 6 elicited at the time of a plea of guilty shall be deemed established by 7 clear and convincing evidence and shall not be relitigated. The court 8 shall render an order setting forth its determinations and the findings 9 of fact and conclusions of law on which the determinations are based. A 10 copy of the order shall be submitted by the court to the division. Upon 11 application of either party, the court shall seal any portion of the 12 court file or record which contains material that is confidential under 13 any state or federal statute. Either party may appeal as of right from 14 the order pursuant to the provisions of articles fifty-five, fifty-six 15 and fifty-seven of the civil practice law and rules. Where counsel has 16 been assigned to represent the sex offender upon the ground that the sex 17 offender is financially unable to retain counsel, that assignment shall 18 be continued throughout the pendency of the appeal, and the person may 19 appeal as a poor person pursuant to article eighteen-B of the county 20 law. 21 § 3. Subdivision 5 and the opening paragraph of subdivision 6 of 22 section 168-l of the correction law, subdivision 5 as added by chapter 23 192 of the laws of 1995, subparagraph (i) of paragraph (a) of subdivi- 24 sion 5 and the opening paragraph of subdivision 6 as amended by chapter 25 11 of the laws of 2002, are amended and a new subdivision 5-a is added 26 to read as follows: 27 5. The board shall develop guidelines and procedures and use a vali- 28 dated risk assessment instrument to assess the risk of a repeat offense 29 by such sex offender and the threat posed to the public safety. Such 30 risk assessment instrument shall be periodically subjected to empirical 31 re-validation. Such guidelines shall [be based upon,] incorporate 32 factors found to be predictive of risk of re-offense, including but not 33 limited to, the following: 34 (a) criminal history factors indicative of high risk of repeat 35 offense, including: 36 (i) whether the sex offender has a mental abnormality or personality 37 disorder that makes him or her likely to engage in predatory sexually 38 violent offenses; 39 (ii) whether the sex offender's conduct was found to be characterized 40 by repetitive and compulsive behavior, associated with drugs or alcohol; 41 (iii) whether the sex offender served the maximum term; 42 (iv) whether the sex offender committed the felony sex offense against 43 a child; 44 (v) the age of the sex offender at the time of the commission of the 45 first sex offense; 46 (b) other criminal history factors to be considered in determining 47 risk, including: 48 (i) the relationship between such sex offender and the victim; 49 (ii) whether the offense involved the use of a weapon, violence or 50 infliction of serious bodily injury; 51 (iii) the number, date and nature of prior offenses; 52 (c) conditions of release that minimize risk [or] of re-offense, 53 including but not limited to whether the sex offender is under super- 54 vision; receiving counseling, therapy or treatment; or residing in a 55 home situation that provides guidance and supervision;S. 4191 5 1 (d) physical conditions that minimize risk of re-offense, including 2 but not limited to advanced age or debilitating illness; 3 (e) whether psychological or psychiatric profiles indicate a risk of 4 recidivism; 5 (f) the sex offender's response to treatment; 6 (g) recent behavior, including behavior while confined; 7 (h) recent threats or gestures against persons or expressions of 8 intent to commit additional offenses; and 9 (i) review of any victim impact statement. 10 5-a. (a) The board in consultation with the department and the divi- 11 sion of criminal justice services shall maintain a statewide database of 12 sex offender recidivism statistics. 13 (b) The board in consultation with the department and the division of 14 criminal justice services shall conduct a periodic retroactive study at 15 least every five years to determine the predictive value of the risk 16 assessment instrument used to assign risk of repeat offense levels to 17 sex offenders pursuant to subdivision six of this section. After each 18 such study the board shall prepare a detailed report to the governor and 19 legislature determining the predictive value of the risk assessment 20 instrument and the predictive value of each factor considered in the 21 overall risk assessment when applied to the statewide database main- 22 tained pursuant to paragraph (a) of this subdivision. The report shall 23 include recommended changes to the guidelines and risk assessment 24 instrument to enhance their predictive capabilities for the purpose of 25 periodic revalidation of such guidelines and risk assessment instrument 26 pursuant to subdivision five of this section. The first such study shall 27 be completed within two years of the effective date of this subdivision. 28 Applying these guidelines and the validated risk assessment 29 instrument, the board shall within sixty calendar days prior to the 30 discharge, parole, release to post-release supervision or release of a 31 sex offender make a recommendation which shall be confidential and shall 32 not be available for public inspection, to the sentencing court as to 33 whether such sex offender warrants the designation of sexual predator, 34 sexually violent offender, or predicate sex offender as defined in 35 subdivision seven of section one hundred sixty-eight-a of this article. 36 In addition, the guidelines and such instrument shall be applied by the 37 board to make a recommendation to the sentencing court which shall be 38 confidential and shall not be available for public inspection, providing 39 for one of the following three levels of notification depending upon the 40 degree of the risk of re-offense by the sex offender. 41 § 4. Subdivisions 1 and 2 of section 168-n of the correction law, 42 subdivision 1 as amended by chapter 11 of the laws of 2002 and subdivi- 43 sion 2 as amended by chapter 453 of the laws of 1999, are amended to 44 read as follows: 45 1. A determination that an offender is a sexual predator, sexually 46 violent offender, or predicate sex offender as defined in subdivision 47 seven of section one hundred sixty-eight-a of this article shall be made 48 prior to the discharge, parole, release to post-release supervision or 49 release of such offender by the sentencing court applying the guidelines 50 and risk assessment instrument established in subdivision five of 51 section one hundred sixty-eight-l of this article after receiving a 52 recommendation from the board pursuant to section one hundred sixty- 53 eight-l of this article. 54 2. In addition, applying the guidelines and risk assessment instrument 55 established in subdivision five of section one hundred sixty-eight-l of 56 this article, the sentencing court shall also make a determination withS. 4191 6 1 respect to the level of notification, after receiving a recommendation 2 from the board pursuant to section one hundred sixty-eight-l of this 3 article. Both determinations of the sentencing court shall be made thir- 4 ty calendar days prior to discharge, parole or release. 5 § 5. This act shall take effect on the one hundred eightieth day after 6 it shall have become a law.
