Bill S2593-2011

Provides for disclosure of sexual offender information related to a patient or client

Provides for disclosure of sexual offender information related to a patient or client.

Details

Actions

  • Jun 5, 2012: referred to mental health
  • Jun 5, 2012: DELIVERED TO ASSEMBLY
  • Jun 5, 2012: PASSED SENATE
  • May 15, 2012: ADVANCED TO THIRD READING
  • May 14, 2012: 2ND REPORT CAL.
  • May 9, 2012: 1ST REPORT CAL.738
  • Jan 4, 2012: REFERRED TO MENTAL HEALTH AND DEVELOPMENTAL DISABILITIES
  • Jan 4, 2012: returned to senate
  • Jan 4, 2012: died in assembly
  • Jun 14, 2011: referred to correction
  • Jun 14, 2011: DELIVERED TO ASSEMBLY
  • Jun 14, 2011: PASSED SENATE
  • Jun 13, 2011: ADVANCED TO THIRD READING
  • Jun 7, 2011: 2ND REPORT CAL.
  • Jun 6, 2011: 1ST REPORT CAL.1001
  • Jan 26, 2011: REFERRED TO MENTAL HEALTH AND DEVELOPMENTAL DISABILITIES

Votes

VOTE: COMMITTEE VOTE: - Mental Health and Developmental Disabilities - Jun 6, 2011
Ayes (8): McDonald, Ball, Bonacic, Hannon, Seward, Zeldin, Huntley, Klein
Ayes W/R (2): Duane, Peralta
VOTE: COMMITTEE VOTE: - Mental Health and Developmental Disabilities - May 9, 2012
Ayes (8): McDonald, Ball, Bonacic, Hannon, Seward, Zeldin, Peralta, Klein
Ayes W/R (1): Huntley
Nays (1): Duane

Memo

BILL NUMBER:S2593

TITLE OF BILL:

An act to amend the mental hygiene law, in relation to disclosure of sexual offender information related to a patient or client, and to amend the correction law, in relation to inclusion of certain persons within the provisions of the sex offender registration act who have had pleas accepted, or who have had verdicts entered with respect to them, of not responsible by reason of mental disease or defect

PURPOSE OF THE BILL:

(1) To amend the Mental Hygiene Law to authorize the Commissioners of OMRDD and OMH to consent to a release of portions of client or patient records containing information that is available pursuant to Article 6-C of the Correction Law under certain circumstances.

(2) To amend the Correction Law to include persons who have had pleas accepted, or who have had verdicts entered against them, of not responsible by reason of mental disease or defect within the provisions of the sex offender registration act where such plea or verdict relates to a sex offense as defined in the provisions of the sex offender registration act.

(3) To amend the Correction Law and the Mental Hygiene Law in relation to ensuring that notification of change of address by a sex offender occurs at or prior to the time that such offender is to be discharged or released from a Department of Mental Hygiene facility.

SUMMARY OF PROVISIONS:

(1) Section one of this bill would authorize both the Commissioner of OMRDD and the Commissioner of OMH to release certain portions of client or patient clinical information related to the sex offender status of individuals to other persons and entities when necessary to ensure the safety and welfare of others. The release of such information would be limited to sex offender registration information that is available to the public pursuant to Article 6-C of the Correction Law.

(2) Sections two, three and four of bill would amend provisions within the "Sex Offender Registration Act" ("SORA") set forth in Article 6-C of the Correction Law as follows:

(a) Section two amends subdivision 10f § 168-a of the Correction Law, to include, within the definition of "sex offender", those persons who have entered a plea, accepted by the court, or have had a verdict rendered against them, of not responsible by reason of mental disease or defect with respect to any of the offenses for which a convicted person would be defined or otherwise labeled under SORA as a sex offender.

(b) Section three of this bill would amend paragraph (c) of subdivision 1 of § 168-b of the Correction Law to require the

Division of Criminal Justice Services to maintain information in the SORA registry on those persons who have entered a plea, accepted by the court, or have had a verdict rendered against them, of not responsible by reason of mental disease or defect and who, by reason of such plea or verdict, would be included within the definition of a sex offender. (c) Section four of this bill would amend § 168-d of the Correction Law to create an additional duty of the court to certify, when applicable, that a person is a sex offender in an order issued pursuant to the provisions of Article 330 of the Criminal procedure Law. This section is further amended so that the court carries out the same duties, with respect to sex offenders who are subjected to orders issued pursuant to the provisions of Article 330 of the Criminal Procedure Law, as the court heretofore had carried out under this section for persons who had been convicted of any of the offenses set forth in subdivisions two or three of § 168-a of the Correction Law.

(3) Sections 5, 6 and 7 of this proposal will amend the provisions of §29.16 of the Mental Hygiene Law which currently relates to the discharge of patients from a department facility. Under this proposal, the director of a department facility, prior to the discharge or release, including a court ordered release, of a patient who is a registered sex offender pursuant to Article 6-C of the Correction Law (SORA), will contact the Division of Criminal Justice Services to determine whether or not such patient has registered a proposed change of address pursuant to § 168-f(4)of the Correction Law. In the event that the director of a department of facility finds that the resident sex offender has not filed a proposed change of address in accordance with the registration requirement of the correction law, the director would be authorized to delay the implementation of the discharge or release, including a court order release, of such resident for a period of up to 10 days or until the date that such person complies with the registration requirements of the applicable provisions of SORA, whichever occurs first.

This proposal will also amend the provisions of §29.17 of the Mental Hygiene Law to provide such patient wit h the fee amount that is charged under SORA to register a change of address. Finally, the provisions of § 168-b(2) of the Correction Law would be amended to authorize the Division of Criminal Justice Services to release SORA registry information directly to the commissioner of mental retardation or the commissioner of mental health.

EXISTING LAW:

(1) Section one of this bill would add a new paragraph to subdivision (c) of §33.13 of the Mental Hygiene Law.

(2) Article 6-C of the Correction Law provides for the registration of sex offender who have been convicted of sex offenses which are listed in subdivisions two or three of § 168-a of the Correction Law. However, there is currently no statutory registration requirements for, or sex offender designations of, individuals who have entered a plea accepted by the court or have had a verdict rendered against them, of not responsible by reason of mental disease or defect with respect to any of the sex offenses set forth in such section of the

correction law. Section two, three and four of this bill would amend three separate provisions of such Article 6-C which would provide for the foregoing requirements.

(3) Sections 29.16 and 29.17 of the Mental Hygiene Law currently address issues relative to the discharge or release of individuals who are residents of Department of Mental Hygiene facilities. Section 168-b(2) of the Correction Law, in part, provides authority to the Division of Criminal Justice Services to release SORA registry information to specified entities. Sections five, six and seven of this bill will provide additional notification provisions and information sharing.

PRIOR LEGISLATIVE HISTORY:

Sections one, two, three and four of this bill were introduced as S.4835 during the 2003-2004 legislative session. Sections five, six and seven of this bill would constitute new proposed amendments to the Mental Hygiene Law and the Correction Law. In the 2007-2008 legislative session the bill was referred to the Senate Committee on Mental Health and Developmental Disabilities.

STATEMENT IN SUPPORT:

(1) With respect to section one of this proposal, the provisions of Article 6-C of the Correction Law which constitutes the Sex Offender Registration Act, or "SORA", was enacted into law in response to public outcry over repeat sex crimes committed by persons having a history of such crimes while residing anonymously in a community. SORA provides for the registration of all sex offenders who are convicted of certain sex crimes, most of which involve offenses with children. Under SORA, these offenders are required to register with the Division of Criminal Justice Services (DCJS) and are given a designation of one of three levels, depending upon the seriousness of the crime for which they had been convicted and other evaluation factors. DCJS provides information on all levels of sex offenders to local law enforcement agencies. In turn, these agencies are allowed to release information on these offenders to the public, in accordance with, and subject to the restrictions and limitations set forth in, the provisions of SORA. OMRDD obtains registrant information that may relate to its consumers from the NYS Division of State Police.

Mental Hygiene Law §33.13 prohibits the disclosure of clinical information, including any information that identifies an individual as receiving services funded by OMRDD, except in situations enumerated in the law. When OMRDD obtains registrant information concerning clients, disclosure of that information is limited by §33.13 of the Mental Hygiene Law. Absent the consent of the consumer with the sex offender designation or a finding of serious and imminent danger to others, such information cannot be disclosed to staff who have no supervisory responsibilities for the individual, other consumers, their family members, or to other regular visitors.

In the interest of safety to other patients and clients, staff and others who may need to know this sex offender information, the Commissioners of OMRDD and OMH will be authorized to release to them

the same information available under article 6-C of the Correction Law from the records of a patient or client.

(2) With respect to sections two, three and four of this bill, the provisions of SORA, set forth in Article 6-C of the Correction Law, require that persons who have been convicted of certain sex offenses to register with DCJS as sex offenders and that DCJS is required to maintain a sex offender registry with specific information concerning convicted sex offenders. However, persons, who have been charged with a sex offense as set forth in SORA and who, with respect to such charges, have entered a plea, accepted by the court, or have had a verdict rendered against them, of not responsible by reason of mental disease or defect, do not fall within the definition of a sex offender and are not required to register with DCJS as a sex offender. Although such individuals have not technically been convicted of a designated sex offense, they arguably continue to pose the same threat to other persons within this state that convicted sex offenders pose to the citizens of this state. Since there doesn't appear to be any constitutional or policy reasons that would prevent these individuals from being subjected to the requirements of SORA, these individuals should be required to register and be subjected to the same provisions of SORA as if they had been convicted of the same sex offenses.

(3) Currently under the provisions of § 168-f of the Correction Law, a registered sex offender is required to register with DCJS no later than ten calendar days after any change of address or any change of his or her status of enrollment, attendance, employment or residence at any institution of higher education. These same provisions apply to registered sex offender's who are residents of a Department of Mental Hygiene facility and who are subsequently discharged or released from such facility. Residents of department facilities, however, undergo a discharge planning process that makes it likely that the intended new address of a facility resident is known at or prior to the time of their discharge or release. In the interest of public safety, this information should be conveyed to DCJS as soon as possible at or prior to the discharge or release of such residents. Sections five, six and seven of this bill will ensure that registered sex offender have properly notified DCJS of their intended new address at or prior to the time that they are discharged or released from the care and custody of the Department of Mental Hygiene.

BUDGET IMPLICATIONS:

Unknown at this time.

LEGISLATIVE HISTORY:

2005: S.5624 - Passed Senate 2006: S.5624A - Senate Mental Health & Developmental Disabilities Committee. 2007-08: S.3327 - Senate Mental Health & Developmental Disabilities Committee 2009-10: S.4176 - Reported and Committed to Codes

EFFECTIVE DATE:

This bill would take effect on the one hundred and eightieth day after it shall have become law.


Text

STATE OF NEW YORK ________________________________________________________________________ 2593 2011-2012 Regular Sessions IN SENATE January 26, 2011 ___________
Introduced by Sen. FLANAGAN -- read twice and ordered printed, and when printed to be committed to the Committee on Mental Health and Develop- mental Disabilities AN ACT to amend the mental hygiene law, in relation to disclosure of sexual offender information related to a patient or client, and to amend the correction law, in relation to inclusion of certain persons within the provisions of the sex offender registration act who have had pleas accepted, or who have had verdicts entered with respect to them, of not responsible by reason of mental disease or defect THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Paragraph 9 of subdivision (c) of section 33.13 of the mental hygiene law is amended by adding a new subparagraph (ix) to read as follows: (IX) APPROPRIATE PERSONS AND ENTITIES PURSUANT TO ARTICLE SIX-C OF THE CORRECTION LAW, WHEN DISCLOSURE IS LIMITED TO SEXUAL OFFENDER REGISTRA- TION INFORMATION NECESSARY TO ENSURE THE WELFARE AND SAFETY OF OTHERS. S 2. Subdivision 1 of section 168-a of the correction law, as added by chapter 192 of the laws of 1995, is amended to read as follows: 1. "Sex offender" includes any person who is convicted of any of the offenses set forth in subdivision two or three of this section. Convictions that result from or are connected with the same act, or result from offenses committed at the same time, shall be counted for the purpose of this article as one conviction. Any conviction set aside pursuant to law is not a conviction for purposes of this article. FOR PURPOSES OF THIS ARTICLE, THE TERM "SEX OFFENDER" SHALL BE DEEMED TO INCLUDE A PERSON WHO HAS HAD A CRIMINAL ACTION COMMENCED AGAINST THEM BY THE FILING OF AN ACCUSATORY INSTRUMENT, A SUPERIOR COURT INFORMATION, OR INDICTMENT WHICH INCLUDES A CHARGE FOR THE COMMISSION OF ANY OF THE OFFENSES SET FORTH IN SUBDIVISION TWO OR THREE OF THIS SECTION AND, WITH RESPECT TO SUCH OFFENSE OR OFFENSES, HAS ENTERED A PLEA, WHICH IS
ACCEPTED, OR HAS HAD A VERDICT ENTERED AGAINST SUCH PERSON, OF NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT. ANY SUCH PLEA OR VERDICT WITH RESPECT TO SUCH OFFENSE OR OFFENSES SHALL BE CONSIDERED A CONVICTION OF ALL OF THE OFFENSES SO CHARGED, OR THAT REMAIN AS CHARGED OR OTHERWISE EXIST AT THE TIME OF THE ENTRY OF SUCH PLEA OR VERDICT, AS MAY BE APPLICABLE, THAT FALL WITHIN THE DEFINITION OF SEX OFFENSE OR SEXUALLY VIOLENT OFFENSE AS SET FORTH IN SUBDIVISION TWO OR THREE OF THIS SECTION AND SHALL BE DEEMED TO BE A CONVICTION FOR ALL OTHER PURPOSES OF THIS ARTICLE. S 3. Paragraph (c) of subdivision 1 of section 168-b of the correction law, as amended by chapter 11 of the laws of 2002, is amended to read as follows: (c) A description of the offense for which the sex offender was convicted, the date of conviction and the sentence imposed. IN THE EVENT THAT SUCH CONVICTION IS DEEMED TO EXIST FROM THE ENTRY AND ACCEPTANCE OF A PLEA, OR THE ENTRY OF A VERDICT, OF NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT AS DESCRIBED IN SUBDIVISION ONE OF SECTION ONE HUNDRED SIXTY-EIGHT-A OF THIS ARTICLE, THE DATE OF CONVICTION SHALL BE DEEMED TO BE THE DATE THE PLEA WAS ACCEPTED BY THE COURT, OR THE DATE A VERDICT WAS ENTERED, OF NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT. IN LIEU OF A DESCRIPTION OF THE SENTENCE IMPOSED WHERE A CONVICTION IS DEEMED TO EXIST AS A RESULT OF SUCH PLEA OR VERDICT, THERE SHALL BE ENTERED A DESCRIPTION OF ALL PROCEEDINGS THAT HAVE OCCURRED PURSUANT TO THE PROVISIONS OF ARTICLE THREE HUNDRED THIRTY OF THE CRIMI- NAL PROCEDURE LAW. S 4. Section 168-d of the correction law, as amended by chapter 11 of the laws of 2002, paragraph (a) of subdivision 1 as amended by chapter 69 of the laws of 2003, paragraph (b) of subdivision 1 as amended by chapter 74 of the laws of 2007, and subdivision 2 as amended and subdi- vision 4 as added by chapter 684 of the laws of 2005, is amended to read as follows: S 168-d. Duties of the court. 1. (a) Except as provided in paragraphs (b) and (c) of this subdivision, upon conviction of any of the offenses set forth in subdivision two or three of section one hundred sixty- eight-a of this article the court shall certify that the person is a sex offender and shall include the certification in the order of commitment, if any, and judgment of conviction OR IN AN ORDER ISSUED PURSUANT TO THE PROVISIONS OF ARTICLE THREE HUNDRED THIRTY OF THE CRIMINAL PROCEDURE LAW, except as provided in paragraph (e) of subdivision two of section one hundred sixty-eight-a of this article. The court shall also advise the sex offender of his or her duties under this article. Failure to include the certification in the order of commitment [or], the judgment of conviction, OR IN AN ORDER ISSUED PURSUANT TO THE PROVISIONS OF ARTI- CLE THREE HUNDRED THIRTY OF THE CRIMINAL PROCEDURE LAW shall not relieve a sex offender of the obligations imposed by this article. (b) Where a defendant stands convicted of an offense defined in para- graph (b) of subdivision two of section one hundred sixty-eight-a of this article or where the defendant was convicted of patronizing a pros- titute in the third degree under section 230.04 of the penal law and the defendant controverts an allegation that the victim of such offense was less than eighteen years of age or, in the case of a conviction under section 230.04 of the penal law, less than seventeen years of age, the court, without a jury, shall, prior to sentencing OR ISSUING AN ORDER PURSUANT TO THE PROVISIONS OF ARTICLE THREE HUNDRED THIRTY OF THE CRIMI- NAL PROCEDURE LAW, conduct a hearing, and the people may prove by clear and convincing evidence that the victim was less than eighteen years of
age or less than seventeen years of age, as applicable, by any evidence admissible under the rules applicable to a trial of the issue of guilt. The court in addition to such admissible evidence may also consider reliable hearsay evidence submitted by either party provided that it is relevant to the determination of the age of the victim. Facts concerning the age of the victim proven at trial or ascertained at the time of entry of a plea of guilty, OR FACTS CONCERNING THE AGE OF THE VICTIM ASCERTAINED AT THE TIME A PLEA IS ENTERED, WHICH IS ACCEPTED BY THE COURT, OR AT A TRIAL WHERE VERDICT IS ENTERED AGAINST SUCH PERSON, OF NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT, shall be deemed established by clear and convincing evidence and shall not be reliti- gated. At the conclusion of the hearing, or if the defendant does not controvert an allegation that the victim of the offense was less than eighteen years of age or less than seventeen years of age, as applica- ble, the court must make a finding and enter an order setting forth the age of the victim. If the court finds that the victim of such offense was under eighteen years of age or under seventeen years of age, as applicable, the court shall certify the defendant as a sex offender, the provisions of paragraph (a) of this subdivision shall apply and the defendant shall register with the division in accordance with the provisions of this article. (c) Where a defendant stands convicted of an offense defined in para- graph (c) of subdivision two of section one hundred sixty-eight-a of this article and the defendant controverts an allegation that the defendant was previously convicted of a sex offense or a sexually violent offense defined in this article or has previously been convicted of or convicted for an attempt to commit any of the provisions of section 130.52 or 130.55 of the penal law, the court, without a jury, shall, prior to sentencing OR ISSUING AN ORDER PURSUANT TO THE PROVISIONS OF ARTICLE THREE HUNDRED THIRTY OF THE CRIMINAL PROCEDURE LAW, conduct a hearing, and the people may prove by clear and convincing evidence that the defendant was previously convicted of a sex offense or a sexually violent offense defined in this article or has previously been convicted of or convicted for an attempt to commit any of the provisions of section 130.52 or 130.55 of the penal law, by any evidence admissible under the rules applicable to a trial of the issue of guilt. The court in addition to such admissible evidence may also consider reliable hearsay evidence submitted by either party provided that it is relevant to the determination of whether the defendant was previously convicted of a sex offense or a sexually violent offense defined in this article or has previously been convicted of or convicted for an attempt to commit any of the provisions of section 130.52 or 130.55 of the penal law. At the conclusion of the hearing, or if the defendant does not controvert an allegation that the defendant was previously convicted of a sex offense or a sexually violent offense defined in this article or has previously been convicted of or convicted for an attempt to commit any of the provisions of section 130.52 or 130.55 of the penal law, the court must make a finding and enter an order determining whether the defendant was previously convicted of a sex offense or a sexually violent offense defined in this article or has previously been convicted of or convicted for an attempt to commit any of the provisions of section 130.52 or 130.55 of the penal law. If the court finds that the defendant has such a previous conviction, the court shall certify the defendant as a sex offender, the provisions of paragraph (a) of this subdivision shall apply and the defendant shall register with the divi- sion in accordance with the provisions of this article.
2. Any sex offender, who is released on probation or discharged upon payment of a fine, conditional discharge or unconditional discharge OR IS RELEASED OR DISCHARGED PURSUANT TO THE PROVISIONS OF ARTICLE THREE HUNDRED THIRTY OF THE CRIMINAL PROCEDURE LAW shall, prior to such release or discharge, be informed of his or her duty to register under this article by the court in which he or she was convicted OR BY THE COURT ISSUING AN ORDER PURSUANT TO THE PROVISIONS OF ARTICLE THREE HUNDRED THIRTY OF THE CRIMINAL PROCEDURE LAW. At the time sentence is imposed OR AT THE TIME THAT THE COURT ISSUES AN ORDER PURSUANT TO THE PROVISIONS OF ARTICLE THREE HUNDRED THIRTY OF THE CRIMINAL PROCEDURE LAW, such sex offender shall register with the division on a form prepared by the division. The court shall require the sex offender to read and sign such form and to complete the registration portion of such form. The court shall on such form obtain the address where the sex offender expects to reside upon his or her release, and the name and address of any institution of higher education he or she expects to be employed by, enrolled in, attending or employed, whether for compen- sation or not, and whether he or she expects to reside in a facility owned or operated by such an institution, AND, IF APPLICABLE, A COPY OF THE ORDER ISSUED, AND DESCRIPTION OF ALL PROCEEDINGS THAT HAVE OCCURRED, PURSUANT TO THE PROVISIONS OF ARTICLE THREE HUNDRED THIRTY OF THE CRIMI- NAL PROCEDURE LAW and shall report such information to the division. The court shall give one copy of the form to the sex offender and shall send two copies to the division which shall forward the information to the law enforcement agencies having jurisdiction. The court shall also noti- fy the district attorney and the sex offender of the date of the deter- mination proceeding to be held pursuant to subdivision three of this section, which shall be held at least forty-five days after such notice is given. 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. If the sex offender applies for assignment of counsel to represent him or her at the hearing and counsel was not previously assigned to represent the sex offender in the underlying criminal action, the court shall determine whether the offender is financially unable to retain counsel. If such a finding is made, the court shall assign counsel to represent the sex offender pursuant to article eighteen-B of the county law. Where the court orders a sex offender released on probation, such order must include a provision requiring that he or she comply with the require- ments of this article. Where such sex offender violates such provision, probation may be immediately revoked in the manner provided by article four hundred ten of the criminal procedure law.
3. For sex offenders released on probation or discharged upon payment of a fine, conditional discharge or unconditional discharge, OR RELEASED OR DISCHARGED PURSUANT TO THE PROVISIONS OF ARTICLE THREE HUNDRED THIRTY OF THE CRIMINAL PROCEDURE LAW, it shall be the duty of the court apply- ing the guidelines established in subdivision five of section one hundred sixty-eight-l of this article to determine the level of notifi- cation 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 fifteen days prior to the determination proceed- ing, the district attorney shall provide to the court and the sex offen- der 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 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 OR PREVIOUSLY ELICITED AT THE TIME A PLEA IS ENTERED, WHICH IS ACCEPTED BY THE COURT, OR ARE PROVEN AT A TRIAL WHERE A VERDICT HAS BEEN ENTERED, OF NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT 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 submit- ted 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. 4. If a sex offender, having been given notice, including the time and place of the determination proceeding in accordance with this section, fails to appear at this proceeding, without sufficient excuse, the court shall conduct the hearing and make the determinations in the manner set forth in subdivision three of this section. S 5. Section 29.16 of the mental hygiene law, as amended by chapter 465 of the laws of 1992, is amended to read as follows: S 29.16 Discharge OR RELEASE; certain cases. (A) The director of a facility shall, with respect to any patient admitted to such facility pursuant to section five hundred nine of the
executive law or 353.4 of the family court act and article nine or fifteen of this chapter, give immediate written notice to the [director of the division for youth] OFFICE OF CHILDREN AND FAMILY SERVICES and to the mental hygiene legal service when any such patient leaves the facil- ity without the consent of its director. Such patient shall not be discharged so long as there is a valid order of the family court placing such person with the [division for youth] OFFICE OF CHILDREN AND FAMILY SERVICES, except in accordance with the provisions of section five hundred nine of the executive law or section 353.4 of the family court act. (B) NOTWITHSTANDING ANY PROVISIONS OF LAW TO THE CONTRARY, PRIOR TO THE DISCHARGE OR RELEASE, INCLUDING A COURT ORDERED RELEASE, FROM A DEPARTMENT FACILITY OF A PATIENT WHO IS A SEX OFFENDER REQUIRED TO REGISTER PURSUANT TO ARTICLE SIX-C OF THE CORRECTION LAW, THE DIRECTOR OF A FACILITY SHALL CONTACT THE DIVISION OF CRIMINAL JUSTICE SERVICES (HEREIN THE "DIVISION") TO DETERMINE WHETHER OR NOT SUCH PATIENT HAS REGISTERED A CHANGE OF ADDRESS PURSUANT TO THE PROVISIONS OF SUBDIVISION FOUR OF SECTION ONE HUNDRED SIXTY-EIGHT-F OF THE CORRECTION LAW. IN THE EVENT THAT THE DIRECTOR DETERMINES THAT SUCH PATIENT HAS FAILED TO PROVIDE THE DIVISION WITH THE NOTIFICATION OF CHANGE OF ADDRESS WHICH WILL PROVIDE THE DIVISION WITH THE PATIENT'S INTENDED NEW ADDRESS WHICH WILL TAKE EFFECT UPON SUCH DISCHARGE OR RELEASE, THE DIRECTOR IMMEDIATE- LY SHALL NOTIFY THE PATIENT AND THE MENTAL HYGIENE LEGAL SERVICE OF THE REQUIREMENTS OF REGISTERING A CHANGE OF ADDRESS PURSUANT TO SUCH PROVISIONS OF THE CORRECTION LAW. NOTWITHSTANDING THE PROVISIONS OF SECTION ONE HUNDRED SIXTY-EIGHT-F OF THE CORRECTION LAW, THE DIRECTOR OF A FACILITY IS AUTHORIZED TO DELAY THE IMPLEMENTATION OF THE DISCHARGE OR RELEASE, INCLUDING A COURT ORDERED RELEASE, OF SUCH PATIENT FOR A PERIOD OF UP TO TEN DAYS OR UNTIL THE DATE THAT SUCH PATIENT COMPLIES WITH THE REGISTRATION REQUIREMENTS OF SUCH PROVISIONS OF THE CORRECTION LAW, WHICHEVER OCCURS FIRST. S 6. Section 29.17 of the mental hygiene law is amended to read as follows: S 29.17 Clothing and money to be furnished patients discharged or released. No patient shall be discharged or released from a department facility without suitable clothing adapted to the season in which he OR SHE is discharged or released; and if it cannot be otherwise obtained, the facility shall upon the order of the director, or of the commissioner, as the case may be, furnish the same, and money not exceeding fifty dollars, to defray his OR HER expenses until he OR SHE can reach his OR HER relatives or friends, or find employment to earn a subsistence. THE FACILITY, UPON THE ORDER OF THE DIRECTOR, OR OF THE COMMISSIONER, AS THE CASE MAY BE, SHALL FURNISH A PATIENT, WHO IS A SEX OFFENDER AND IS REQUIRED TO REGISTER A CHANGE OF ADDRESS PURSUANT TO SUBDIVISION FOUR OF SECTION ONE HUNDRED SIXTY-EIGHT-F OF THE CORRECTION LAW, WITH MONEY, IN AN AMOUNT EQUAL TO THE STATUTORY AMOUNT CHARGED BY THE DIVISION OF CRIM- INAL JUSTICE SERVICES TO DEFRAY THE EXPENSE OF REGISTERING HIS OR HER CHANGE OF ADDRESS WITH THE DIVISION, AT OR PRIOR TO THE DATE OF SUCH DISCHARGE OR RELEASE. S 7. Paragraph a of subdivision 2 of section 168-b of the correction law, as amended by chapter 645 of the laws of 2005, is amended to read as follows: a. The division is authorized to make the registry available to any regional or national registry of sex offenders for the purpose of shar- ing information OR TO THE COMMISSIONER OF MENTAL HEALTH OR THE COMMIS-
SIONER OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES. The divi- sion shall accept files from any regional or national registry of sex offenders and shall make such files available when requested pursuant to the provisions of this article. S 8. This act shall take effect on the one hundred eightieth day after it shall have become a law.

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