S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 4591--A

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                            February 6, 2013
                               ___________

Introduced  by  M. of A. O'DONNELL, AUBRY -- Multi-Sponsored by -- M. of
  A. PERRY -- read once and referred to the Committee on  Correction  --
  recommitted to the Committee on Correction in accordance with Assembly
  Rule  3,  sec.  2  --  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:

  Section 1. Subdivision 3 of section 168-d of the  correction  law,  as
amended  by  chapter  11  of  the  laws  of  2002, is amended to read as
follows:
  3. For sex offenders released on probation or discharged upon  payment
of a fine, conditional discharge or unconditional discharge, it shall be
the  duty  of  the  court  applying  the  guidelines AND RISK ASSESSMENT
INSTRUMENT established  in  subdivision  five  of  section  one  hundred
sixty-eight-l  of  this  article  to determine the level of notification
pursuant to subdivision six of section one hundred sixty-eight-l of this
article and whether such sex offender shall be designated a sexual pred-
ator, sexually violent offender, or predicate sex offender as defined in
subdivision seven of section one hundred sixty-eight-a of this  article.
At  least  fifteen  days  prior  to  the  determination  proceeding, the
district attorney shall provide to the court  and  the  sex  offender  a
written  statement  setting  forth  the  determinations  sought  by  the
district attorney together with the reasons for  seeking  such  determi-
nations.  The court shall allow the sex offender to appear and be heard.
The state shall appear by the district attorney, or his or her designee,
who shall bear the burden of proving the facts supporting  the  determi-
nations  sought  by  clear  and  convincing evidence.   Where there is a
dispute between the parties concerning  the  determinations,  the  court
shall adjourn the hearing as necessary to permit the sex offender or the

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD00904-02-4
              

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district  attorney  to  obtain  materials relevant to the determinations
from any state or local facility, hospital, institution, office, agency,
department or division. Such materials may be obtained  by  subpoena  if
not voluntarily provided to the requesting party. In making the determi-
nations,  the court shall review any victim's statement and any relevant
materials and evidence submitted by the sex offender  and  the  district
attorney  and the court may consider reliable hearsay evidence submitted
by either party provided that it  is  relevant  to  the  determinations.
Facts  previously  proven at trial or elicited at the time of entry of a
plea of guilty shall be  deemed  established  by  clear  and  convincing
evidence  and  shall not be relitigated. The court shall render an order
setting forth its determinations and the findings of  fact  and  conclu-
sions  of law on which the determinations are based. A copy of the order
shall be submitted by the court to the  division.  Upon  application  of
either  party,  the  court  shall  seal any portion of the court file or
record which contains material that is confidential under any  state  or
federal  statute.  Either  party  may  appeal as of right from the order
pursuant to the provisions of articles fifty-five, fifty-six and  fifty-
seven  of  the  civil  practice  law  and  rules. Where counsel has been
assigned to represent the sex offender upon  the  ground  that  the  sex
offender  is financially unable to retain counsel, that assignment shall
be continued throughout the pendency of the appeal, and the  person  may
appeal  as  a  poor  person pursuant to article eighteen-B of the county
law.
  S 2. Subdivision 2 of section 168-k of the correction law, as  amended
by chapter 684 of the laws of 2005, is amended to read as follows:
  2.  The  division  shall  advise  the  board that the sex offender has
established residence in this state. The board shall  determine  whether
the  sex  offender  is  required to register with the division. If it is
determined that the sex offender is required to register,  the  division
shall  notify the sex offender of his or her duty to register under this
article and shall require the sex offender to sign  a  form  as  may  be
required by the division acknowledging that the duty to register and the
procedure  for  registration has been explained to the sex offender. The
division shall obtain on such form the address where  the  sex  offender
expects to reside within the state and the sex offender shall retain one
copy of the form and send two copies to the division which shall provide
the  information to the law enforcement agency having jurisdiction where
the sex offender expects to reside within  this  state.  No  later  than
thirty days prior to the board making a recommendation, the sex offender
shall  be  notified  that his or her case is under review and that he or
she is permitted to submit to the board any information relevant to  the
review.  After  reviewing  any  information  obtained,  and applying the
guidelines AND RISK ASSESSMENT  INSTRUMENT  established  in  subdivision
five  of  section  one  hundred sixty-eight-l of this article, the board
shall within sixty calendar days make  a  recommendation  regarding  the
level of notification pursuant to subdivision six of section one hundred
sixty-eight-l  of  this  article  and whether such sex offender shall be
designated a sexual predator, sexually violent  offender,  or  predicate
sex  offender  as  defined  in  subdivision seven of section one hundred
sixty-eight-a of this article.  This recommendation shall  be  confiden-
tial  and  shall  not  be  available  for public inspection. It shall be
submitted by the board to the county court or supreme court and  to  the
district  attorney in the county of residence of the sex offender and to
the sex offender. It shall be the duty of the county  court  or  supreme
court  in  the  county  of  residence  of the sex offender, applying the

A. 4591--A                          3

guidelines AND RISK ASSESSMENT  INSTRUMENT  established  in  subdivision
five  of section one hundred sixty-eight-l of this article, to determine
the level of notification pursuant to subdivision  six  of  section  one
hundred  sixty-eight-l  of  this  article  and whether such sex offender
shall be designated a sexual predator,  sexually  violent  offender,  or
predicate  sex  offender  as defined in subdivision seven of section one
hundred sixty-eight-a of this article. At least thirty days prior to the
determination proceeding, such court shall notify the district  attorney
and  the  sex  offender,  in  writing,  of the date of the determination
proceeding and the court shall also provide the  district  attorney  and
sex  offender  with a copy of the recommendation received from the board
and any statement of the reasons for the  recommendation  received  from
the  board.  This  notice  shall  include  the  following statement or a
substantially similar statement:  "This  proceeding  is  being  held  to
determine  whether you will be classified as a level 3 offender (risk of
repeat offense is high), a level 2 offender (risk of repeat  offense  is
moderate),  or  a  level  1 offender (risk of repeat offense is low), or
whether you will be designated as a sexual predator, a sexually  violent
offender  or a predicate sex offender, which will determine how long you
must register as a sex offender and how much information can be provided
to the public concerning your registration. If you  fail  to  appear  at
this  proceeding,  without  sufficient  excuse, it shall be held in your
absence. Failure to appear may result in a longer period of registration
or a higher level of community notification because you are not  present
to offer evidence or contest evidence offered by the district attorney."
The  court shall also advise the sex offender that he or she has a right
to a hearing prior to the court's determination, that he or she has  the
right  to be represented by counsel at the hearing and that counsel will
be appointed if he or she is financially unable  to  retain  counsel.  A
returnable  form  shall  be  enclosed  in  the court's notice to the sex
offender on which the sex offender may apply for assignment of  counsel.
If  the  sex  offender  applies  for assignment of counsel and the court
finds that the offender is financially unable  to  retain  counsel,  the
court  shall  assign  counsel  to represent the sex offender pursuant to
article eighteen-B of the county law. If the district attorney  seeks  a
determination  that  differs  from  the  recommendation submitted by the
board, at least ten days  prior  to  the  determination  proceeding  the
district  attorney  shall  provide  to  the court and the sex offender a
statement setting forth the determinations sought by the district attor-
ney together with the reasons for seeking such determinations. The court
shall allow the sex offender to appear and be  heard.  The  state  shall
appear  by the district attorney, or his or her designee, who shall bear
the burden of proving the facts supporting the determinations sought  by
clear  and convincing evidence. It shall be the duty of the court apply-
ing the guidelines AND RISK ASSESSMENT INSTRUMENT established in  subdi-
vision  five  of  section  one  hundred sixty-eight-l of this article to
determine the level of  notification  pursuant  to  subdivision  six  of
section  one  hundred sixty-eight-l of this article and whether such sex
offender shall be designated a sexual predator, sexually violent  offen-
der,  or  predicate  sex  offender  as  defined  in subdivision seven of
section one hundred sixty-eight-a of this  article.  Where  there  is  a
dispute  between  the  parties  concerning the determinations, the court
shall adjourn the hearing as necessary to permit the sex offender or the
district attorney to obtain materials  relevant  to  the  determinations
from the state board of examiners of sex offenders or any state or local
facility, hospital, institution, office, agency, department or division.

A. 4591--A                          4

Such  materials  may be obtained by subpoena if not voluntarily provided
to the requesting party. In making the determinations  the  court  shall
review  any  victim's  statement and any relevant materials and evidence
submitted  by  the sex offender and the district attorney and the recom-
mendation and any material submitted by  the  board,  and  may  consider
reliable hearsay evidence submitted by either party, provided that it is
relevant  to  the determinations. If available, facts proven at trial or
elicited at the time of a plea of guilty shall be deemed established  by
clear  and  convincing  evidence and shall not be relitigated. The court
shall render an order setting forth its determinations and the  findings
of  fact and conclusions of law on which the determinations are based. A
copy of the order shall be submitted by the court to the division.  Upon
application  of  either  party,  the court shall seal any portion of the
court file or record which contains material that is confidential  under
any  state  or federal statute. Either party may appeal as of right from
the order pursuant to the provisions of articles  fifty-five,  fifty-six
and  fifty-seven  of the civil practice law and rules. Where counsel has
been assigned to represent the sex offender upon the ground that the sex
offender is financially unable to retain counsel, that assignment  shall
be  continued  throughout the pendency of the appeal, and the person may
appeal as a poor person pursuant to article  eighteen-B  of  the  county
law.
  S  3.  Subdivision  5  and  the  opening paragraph of subdivision 6 of
section 168-l of the correction law, subdivision 5 as added  by  chapter
192  of  the laws of 1995, subparagraph (i) of paragraph (a) of subdivi-
sion 5 and the opening paragraph of subdivision 6 as amended by  chapter
11  of  the laws of 2002, are amended and a new subdivision 5-a is added
to read as follows:
  5. The board shall develop guidelines and procedures AND USE  A  VALI-
DATED  RISK ASSESSMENT INSTRUMENT to assess the risk of a repeat offense
by such sex offender and the threat posed to  the  public  safety.  SUCH
RISK  ASSESSMENT INSTRUMENT SHALL BE PERIODICALLY SUBJECTED TO EMPIRICAL
RE-VALIDATION.  Such  guidelines  shall  [be  based  upon,]  INCORPORATE
FACTORS  FOUND TO BE PREDICTIVE OF RISK OF RE-OFFENSE, INCLUDING but not
limited to, the following:
  (a) criminal  history  factors  indicative  of  high  risk  of  repeat
offense, including:
  (i)  whether  the sex offender has a mental abnormality or personality
disorder that makes him or her likely to engage  in  predatory  sexually
violent offenses;
  (ii)  whether the sex offender's conduct was found to be characterized
by repetitive and compulsive behavior, associated with drugs or alcohol;
  (iii) whether the sex offender served the maximum term;
  (iv) whether the sex offender committed the felony sex offense against
a child;
  (v) the age of the sex offender at the time of the commission  of  the
first sex offense;
  (b)  other  criminal  history  factors to be considered in determining
risk, including:
  (i) the relationship between such sex offender and the victim;
  (ii) whether the offense involved the use of  a  weapon,  violence  or
infliction of serious bodily injury;
  (iii) the number, date and nature of prior offenses;
  (c)  conditions of release that minimize risk or re-offense, including
but not limited to  whether  the  sex  offender  is  under  supervision;

A. 4591--A                          5

receiving  counseling, therapy or treatment; or residing in a home situ-
ation that provides guidance and supervision;
  (d)  physical  conditions  that minimize risk of re-offense, including
but not limited to advanced age or debilitating illness;
  (e) whether psychological or psychiatric profiles indicate a  risk  of
recidivism;
  (f) the sex offender's response to treatment;
  (g) recent behavior, including behavior while confined;
  (h)  recent  threats  or  gestures  against  persons or expressions of
intent to commit additional offenses; and
  (i) review of any victim impact statement.
  5-A. (A) THE BOARD IN CONSULTATION WITH THE DEPARTMENT AND  THE  DIVI-
SION OF CRIMINAL JUSTICE SERVICES SHALL MAINTAIN A STATEWIDE DATABASE OF
SEX OFFENDER RECIDIVISM STATISTICS.
  (B)  THE BOARD IN CONSULTATION WITH THE DEPARTMENT AND THE DIVISION OF
CRIMINAL JUSTICE SERVICES SHALL CONDUCT A PERIODIC RETROACTIVE STUDY  AT
LEAST  EVERY  FIVE  YEARS  TO DETERMINE THE PREDICTIVE VALUE OF THE RISK
ASSESSMENT INSTRUMENT USED TO ASSIGN RISK OF REPEAT  OFFENSE  LEVELS  TO
SEX  OFFENDERS  PURSUANT  TO SUBDIVISION SIX OF THIS SECTION. AFTER EACH
SUCH STUDY THE BOARD SHALL PREPARE A DETAILED REPORT TO THE GOVERNOR AND
LEGISLATURE DETERMINING THE PREDICTIVE  VALUE  OF  THE  RISK  ASSESSMENT
INSTRUMENT  AND  THE  PREDICTIVE  VALUE OF EACH FACTOR CONSIDERED IN THE
OVERALL RISK ASSESSMENT WHEN APPLIED TO  THE  STATEWIDE  DATABASE  MAIN-
TAINED  PURSUANT  TO PARAGRAPH (A) OF THIS SUBDIVISION. THE REPORT SHALL
INCLUDE RECOMMENDED  CHANGES  TO  THE  GUIDELINES  AND  RISK  ASSESSMENT
INSTRUMENT  TO  ENHANCE THEIR PREDICTIVE CAPABILITIES FOR THE PURPOSE OF
PERIODIC REVALIDATION OF SUCH GUIDELINES AND RISK ASSESSMENT  INSTRUMENT
PURSUANT TO SUBDIVISION FIVE OF THIS SECTION. THE FIRST SUCH STUDY SHALL
BE COMPLETED WITHIN TWO YEARS OF THE EFFECTIVE DATE OF THIS SUBDIVISION.
  Applying   these   guidelines   AND   THE  VALIDATED  RISK  ASSESSMENT
INSTRUMENT, the board shall within sixty  calendar  days  prior  to  the
discharge,  parole,  release to post-release supervision or release of a
sex offender make a recommendation which shall be confidential and shall
not be available for public inspection, to the sentencing  court  as  to
whether  such  sex offender warrants the designation of sexual predator,
sexually violent offender, or  predicate  sex  offender  as  defined  in
subdivision  seven of section one hundred sixty-eight-a of this article.
In addition, the guidelines AND SUCH INSTRUMENT shall be applied by  the
board  to  make  a recommendation to the sentencing court which shall be
confidential and shall not be available for public inspection, providing
for one of the following three levels of notification depending upon the
degree of the risk of re-offense by the sex offender.
  S 4. Subdivisions 1 and 2 of section  168-n  of  the  correction  law,
subdivision  1 as amended by chapter 11 of the laws of 2002 and subdivi-
sion 2 as amended by chapter 453 of the laws of  1999,  are  amended  to
read as follows:
  1.  A  determination  that  an offender is a sexual predator, sexually
violent offender, or predicate sex offender as  defined  in  subdivision
seven of section one hundred sixty-eight-a of this article shall be made
prior  to  the discharge, parole, release to post-release supervision or
release of such offender by the sentencing court applying the guidelines
AND RISK  ASSESSMENT  INSTRUMENT  established  in  subdivision  five  of
section  one  hundred  sixty-eight-l  of  this article after receiving a
recommendation from the board pursuant to  section  one  hundred  sixty-
eight-l of this article.

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  2. In addition, applying the guidelines AND RISK ASSESSMENT INSTRUMENT
established  in subdivision five of section one hundred sixty-eight-l of
this article, the sentencing court shall also make a determination  with
respect  to  the level of notification, after receiving a recommendation
from  the  board  pursuant  to section one hundred sixty-eight-l of this
article. Both determinations of the sentencing court shall be made thir-
ty calendar days prior to discharge, parole or release.
  S 5. This act shall take effect on the one hundred eightieth day after
it shall have become a law.