Relates to the timing of risk level determination hearings for certain convicted sex offenders who are expected to be, upon sentencing, released on probation or discharged upon payment of a fine, conditional discharge or unconditional discharge.
Ayes (13): Gallivan, Carlucci, DeFrancisco, Griffo, Little, Maziarz, Nozzolio, Ritchie, Hassell-Thompson, Montgomery, Hoylman, Peralta, Rivera
Ayes (60): Addabbo, Avella, Ball, Bonacic, Boyle, Breslin, Carlucci, DeFrancisco, Diaz, Dilan, Espaillat, Farley, Felder, Flanagan, Fuschillo, Gallivan, Gianaris, Gipson, Golden, Griffo, Grisanti, Hannon, Hassell-Thomps, Hoylman, Kennedy, Klein, Krueger, Lanza, Larkin, Latimer, LaValle, Libous, Little, Marcellino, Marchione, Martins, Maziarz, Montgomery, Nozzolio, O'Brien, Peralta, Perkins, Ranzenhofer, Ritchie, Rivera, Robach, Sampson, Sanders, Savino, Serrano, Seward, Skelos, Smith, Squadron, Stavisky, Stewart-Cousin, Tkaczyk, Valesky, Young, Zeldin
Excused (3): Adams, O'Mara, Parker
BILL NUMBER:S323 REVISED 5/17/13
TITLE OF BILL: An act to amend the correction law, in relation to risk level determination hearings for convicted sex offenders
PURPOSE OR GENERAL IDEA OF BILL: This bill will require that notice of a risk level determination hearing for convicted sex offenders be given to the sex offender and district attorney within five days of the conviction for any sex offender, who is expected to be, upon sentencing, released on probation or discharge upon payment of a fine, conditional discharge or unconditional discharge and the risk level determination hearing must be held within 20 days of this notice and prior to sentencing.
SUMMARY OF PROVISIONS:
Section 1 of the bill amends subdivision 2 and 3 of section 168-d of the correction law, subdivision 2 as amended by chapter 684 of the laws of 2005 and subdivision 3 as amended by chapter 11 of the laws of 2002, by adding that within five day of the conviction of any sex offender, who is expected to be, upon sentencing, released on probation or discharge upon payment of a fine, conditional discharge or unconditional discharge and requires that the risk level determination hearing must be held within 20 days of this notice and or prior to sentencing.
Section 2 sets forth an immediate effective date.
JUSTIFICATION: Current law requires that the risk level determination hearing for convicted sex offenders to take place at least 45 days after notice is given. Unfortunately, this permissive section of the corrections law has resulted in sex offenders being released from probation or discharged upon payment of a fine, conditional discharge or unconditional discharge without a risk level determination hearing having taken place.
Given the seriousness of sex offenses, risk level assessment hearings of convicted sex offenders should take place within a very short period of time after conviction and should be prior to sentencing so that the requirements of the Sex Offender Registration Act are in place and being implemented as soon as possible to protect the public.
PRIOR LEGISLATIVE HISTORY: 2011-12, S.5189/A.7949 (Miller)
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS: This bill has a neutral fiscal impact to the State. The registration timeline posted by the Division of Criminal Justice Services affirms that by law risk level/designation hearings are scheduled and must occur at least 45 days after sentencing. The Division affirms that parties often agree to the risk level/designation at sentencing.
This legislation aims to expedite the risk level/designation hearing process by shortening the statutory time frame in which a hearing must be held from 45 to 20 days in after sentencing.
This bill does not have a fiscal impact to the State because as noted by DCJS -risk level/designation is usually agreed upon and set at sentencing without the need to conduct a hearing.
The following statistics demonstrate the actual population of offenders impacted by this proposed legislation:
According to statistics posted by Division of Criminal Justice Services on its website, there are currently an estimated 801 sex offenders pending risk level determinations statewide. This number includes about 185 offenders which are in the process of being deported. This number drops to approximately 140 sex offenders that are pending a risk level determination in NYC only. There are about 100 sex offenders that are incarcerated in both local jails and state correctional facilities. This is a very small number of offenders that can be extrapolated to forecast future convictions impacted by this legislation.
Therefore, this bill is fiscally neutral to the State. The change promulgated in this bill would necessitate an assessment of the ability of the current staffing allocations to effectively implement the change. The fact that in a majority of all cases, these determinations are agreed to prior to or upon sentencing accounts for the small number that would be covered by this change. It is therefore clear by the analysis of the statistics and from the information provided by DCJS that the implementation of this statutory change can be easily accomplished within the resources available and would not require additional resources.
EFFECTIVE DATE: Immediately.
STATE OF NEW YORK ________________________________________________________________________ 323 2013-2014 Regular Sessions IN SENATE (PREFILED) January 9, 2013 ___________Introduced by Sens. AVELLA, MAZIARZ -- 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 level determi- nation hearings for convicted sex offenders THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subdivisions 2 and 3 of section 168-d of the correction law, subdivision 2 as amended by chapter 684 of the laws of 2005 and subdivision 3 as amended by chapter 11 of the laws of 2002, are amended to read as follows: 2. Any sex offender, who is released on probation or discharged upon payment of a fine, conditional discharge or unconditional discharge 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. At the time sentence is imposed, 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 high- er education he or she expects to be employed by, enrolled in, attending or employed, whether for compensation or not, and whether he or she expects to reside in a facility owned or operated by such an institu- tion, 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 enforce- ment agencies having jurisdiction.
[The]2-A. WITHIN FIVE DAYS OF THE CONVICTION OF ANY SEX OFFENDER, WHO IS EXPECTED TO BE, UPON SENTENCING, RELEASED ON PROBATION OR DISCHARGEDEXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD01025-01-3 S. 323 2
UPON PAYMENT OF A FINE, CONDITIONAL DISCHARGE OR UNCONDITIONAL DISCHARGE, THE court shall
[also]notify the district attorney and the sex offender of the date of the determination proceeding to be held pursuant to subdivision three of this section, which shall be held [at least forty-five]WITHIN TWENTY days after such notice is given AND PRIOR TO SENTENCING. 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. 2-B. Where the court orders a sex offender released on probation, such order must include a provision requiring that he or she comply with the requirements 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 WHO ARE EXPECTED TO BE, UPON SENTENCING, 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 established in subdivision five of section one hundred sixty-eight-l of this article to determine, PRIOR TO SENTENCING, 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 fifteen days prior to the deter- mination proceeding, the district attorney shall provide to the court and the sex offender a written statement setting forth the determi- nations sought by the district attorney 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. Where there is a dispute between the parties concerning the determi- nations, 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, institu- tion, office, agency, department or division. Such materials may be obtained by subpoena if not voluntarily provided to the requestingS. 323 3
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 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 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 2. This act shall take effect immediately.