STATE OF NEW YORK ________________________________________________________________________ 6548 2017-2018 Regular Sessions IN SENATE June 1, 2017 ___________ Introduced by Sen. MURPHY -- 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 dissemination of information on sex offenders from another state who have not been assigned a risk level in this state The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Subdivision 2 of section 168-k of the correction law, as 2 amended by chapter 684 of the laws of 2005, is amended to read as 3 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. If the sex offen- 17 der has not been given a risk level designation in this state, for 18 purposes of disseminating relevant information and until such time as 19 the sex offender has received a risk level designation in accordance 20 with this section, the law enforcement agency having jurisdiction and 21 the division may disseminate relevant information in accordance with the 22 provisions of paragraph (b) of subdivision six of section one hundred 23 sixty-eight-l, section one hundred sixty-eight-p and subdivision one of EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD11907-02-7S. 6548 2 1 section one hundred sixty-eight-q of this article. When the sex offender 2 has been assigned a risk level in accordance with this section, dissem- 3 ination of relevant information for that risk level shall thereafter be 4 made by the law enforcement agency having jurisdiction and the division 5 shall be made as provided in this article. No later than thirty days 6 prior to the board making a recommendation, the sex offender shall be 7 notified that his or her case is under review and that he or she is 8 permitted to submit to the board any information relevant to the review. 9 After reviewing any information obtained, and applying the guidelines 10 established in subdivision five of section one hundred sixty-eight-l of 11 this article, the board shall within sixty calendar days make a recom- 12 mendation regarding the level of notification pursuant to subdivision 13 six of section one hundred sixty-eight-l of this article and whether 14 such sex offender shall be designated a sexual predator, sexually 15 violent offender, or predicate sex offender as defined in subdivision 16 seven of section one hundred sixty-eight-a of this article. This recom- 17 mendation shall be confidential and shall not be available for public 18 inspection. It shall be submitted by the board to the county court or 19 supreme court and to the district attorney in the county of residence of 20 the sex offender and to the sex offender. It shall be the duty of the 21 county court or supreme court in the county of residence of the sex 22 offender, applying the guidelines established in subdivision five of 23 section one hundred sixty-eight-l of this article, to determine the 24 level of notification pursuant to subdivision six of section one hundred 25 sixty-eight-l of this article and whether such sex offender shall be 26 designated a sexual predator, sexually violent offender, or predicate 27 sex offender as defined in subdivision seven of section one hundred 28 sixty-eight-a of this article. At least thirty days prior to the deter- 29 mination proceeding, such court shall notify the district attorney and 30 the sex offender, in writing, of the date of the determination proceed- 31 ing and the court shall also provide the district attorney and sex 32 offender with a copy of the recommendation received from the board and 33 any statement of the reasons for the recommendation received from the 34 board. This notice shall include the following statement or a substan- 35 tially similar statement: "This proceeding is being held to determine 36 whether you will be classified as a level 3 offender (risk of repeat 37 offense is high), a level 2 offender (risk of repeat offense is moder- 38 ate), or a level 1 offender (risk of repeat offense is low), or whether 39 you will be designated as a sexual predator, a sexually violent offender 40 or a predicate sex offender, which will determine how long you must 41 register as a sex offender and how much information can be provided to 42 the public concerning your registration. If you fail to appear at this 43 proceeding, without sufficient excuse, it shall be held in your absence. 44 Failure to appear may result in a longer period of registration or a 45 higher level of community notification because you are not present to 46 offer evidence or contest evidence offered by the district attorney." 47 The court shall also advise the sex offender that he or she has a right 48 to a hearing prior to the court's determination, that he or she has the 49 right to be represented by counsel at the hearing and that counsel will 50 be appointed if he or she is financially unable to retain counsel. A 51 returnable form shall be enclosed in the court's notice to the sex 52 offender on which the sex offender may apply for assignment of counsel. 53 If the sex offender applies for assignment of counsel and the court 54 finds that the offender is financially unable to retain counsel, the 55 court shall assign counsel to represent the sex offender pursuant to 56 article eighteen-B of the county law. If the district attorney seeks aS. 6548 3 1 determination that differs from the recommendation submitted by the 2 board, at least ten days prior to the determination proceeding the 3 district attorney shall provide to the court and the sex offender a 4 statement setting forth the determinations sought by the district attor- 5 ney together with the reasons for seeking such determinations. The court 6 shall allow the sex offender to appear and be heard. The state shall 7 appear by the district attorney, or his or her designee, who shall bear 8 the burden of proving the facts supporting the determinations sought by 9 clear and convincing evidence. It shall be the duty of the court apply- 10 ing the guidelines established in subdivision five of section one 11 hundred sixty-eight-l of this article to determine the level of notifi- 12 cation pursuant to subdivision six of section one hundred sixty-eight-l 13 of this article and whether such sex offender shall be designated a 14 sexual predator, sexually violent offender, or predicate sex offender as 15 defined in subdivision seven of section one hundred sixty-eight-a of 16 this article. Where there is a dispute between the parties concerning 17 the determinations, the court shall adjourn the hearing as necessary to 18 permit the sex offender or the district attorney to obtain materials 19 relevant to the determinations from the state board of examiners of sex 20 offenders or any state or local facility, hospital, institution, office, 21 agency, department or division. Such materials may be obtained by 22 subpoena if not voluntarily provided to the requesting party. In making 23 the determinations the court shall review any victim's statement and any 24 relevant materials and evidence submitted by the sex offender and the 25 district attorney and the recommendation and any material submitted by 26 the board, and may consider reliable hearsay evidence submitted by 27 either party, provided that it is relevant to the determinations. If 28 available, facts proven at trial or elicited at the time of a plea of 29 guilty shall be deemed established by clear and convincing evidence and 30 shall not be relitigated. The court shall render an order setting forth 31 its determinations and the findings of fact and conclusions of law on 32 which the determinations are based. A copy of the order shall be submit- 33 ted by the court to the division. Upon application of either party, the 34 court shall seal any portion of the court file or record which contains 35 material that is confidential under any state or federal statute. Either 36 party may appeal as of right from the order pursuant to the provisions 37 of articles fifty-five, fifty-six and fifty-seven of the civil practice 38 law and rules. Where counsel has been assigned to represent the sex 39 offender upon the ground that the sex offender is financially unable to 40 retain counsel, that assignment shall be continued throughout the 41 pendency of the appeal, and the person may appeal as a poor person 42 pursuant to article eighteen-B of the county law. 43 § 2. This act shall take effect immediately.