Relates to risk-level recommendations under the sex offender registration act.
Ayes (10): Gallivan, Carlucci, DeFrancisco, Little, Maziarz, Nozzolio, Ritchie, Hassell-Thompson, Hoylman, Rivera
Ayes W/R (3): Griffo, Montgomery, Peralta
Ayes (60): Adams, Addabbo, Avella, Ball, Bonacic, Boyle, Breslin, Carlucci, DeFrancisco, 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, O'Mara, Parker, Perkins, Ranzenhofer, Ritchie, Rivera, Robach, Sanders, Savino, Serrano, Seward, Skelos, Smith, Squadron, Stavisky, Stewart-Cousin, Tkaczyk, Valesky, Young, Zeldin
Absent (1): Sampson
Excused (2): Diaz, Peralta
TITLE OF BILL: An act to amend the correction law, in relation to risk-level recommendations under the sex offender registration act
This is one in a series of measures being introduced at the request of the Chief Administrative Judge upon the recommendation of her Advisory Committee on Criminal Law and Procedure.
This measure would amend the Sex Offender Registration Act (Corrections Law article 6-C) to make it the responsibility of the District Attorney to provide the risk-level recommendation where a defendant is sentenced to a term of imprisonment of ninety days or less.
Upon certification as a sex offender, a defendant becomes subject to a risk-level determination, assessed by the court following a hearing (Correction Law § 168-d (1)). Prior to the risk-level determination hearing, however, both the court and the offender must be given notice of a risk-level recommendation. Where an offender is not sentenced to a term of imprisonment, it is the District Attorney who provides the risk-level recommendation (see Correction Law § 168-d (2), (3)). Where the offender is sentenced to a term of imprisonment, the responsibility to make the recommendation is placed on the Board of Examiners of Sex Offenders (see Correction Law § 168-1 (6)).
A problem routinely arises when the Board of Examiners of Sex Offenders is tasked with the duty to provide a recommendation for offenders sentenced to a term of imprisonment of 90 days or less. The statutory scheme anticipates that the sentencing court will make the risk-level determination for imprisoned offenders 30 days prior to the offender's release but only after receiving the Board's recommendation, which must be made within sixty days prior to the offender's release (see Correction Law § 168-n (1), (2)). Where the court is unable to make a determination prior to the date scheduled for the defendant's release, it must adjourn the hearing until after release and provide the offender with at least 20 days notice (see Correction Law §§ 168-1 (8); 168-n (3)). For jail terms of 90 days or less, or sentences that will be satisfied by the amount of time a defendant has already served, the Board has inadequate time to prepare the risk-level recommendation prior to defendant's release. This causes the court to schedule a hearing date after the defendant's release. As a practical matter, courts cannot foresee when the Board's recommendation will be received and therefore no hearing will be scheduled until after the court receives the recommendation. By then, most defendants serving short terms of incarceration have already been released.
As a result of this cumbersome procedure, the court must notify the offender of the date for the hearing when it often has little information regarding defendant's present location. Usually, the court has no effective means to notify the offender except by mailing a letter to defendant's last known address as reflected in the court file. If the defendant does not appear at the hearing, the court may then only proceed upon a finding of an unexcused failure to appear (see Correction Law §§ 168-d (4), 168-n (6)). Such findings are difficult to make with the limited record available to the court,
leading to significant delays in determining an offender's risk-level status.
Our Advisory Committee urges that the problems encountered under present law can be avoided if the District Attorney is given the responsibility for preparing the risk-level recommendation in cases where a defendant will be incarcerated on a sentence of ninety days or less. District Attorneys already have this obligation for sentences that do not involve imprisonment and will be able to assure the court that the risk-level recommendation is filed prior to the release of the defendant. The court can then provide adequate notice of the hearing date to the defendant and insure that timely risk-level determinations are conducted.
This measure would take effect 90 days after it becomes law.
Legislative History: None. New proposal.
STATE OF NEW YORK ________________________________________________________________________ 4821 2013-2014 Regular Sessions IN SENATE April 25, 2013 ___________Introduced by Sen. GALLIVAN -- (at request of the Office of Court Admin- istration) -- 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 recommen- dations under the sex offender registration act THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subdivision 2 of section 168-d of the correction law, as amended by chapter 684 of the laws of 2005, is 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, A DEFINITE SENTENCE OF NINETY DAYS OR LESS OR A SENTENCE THAT WILL BE SATISFIED BY THE AMOUNT OF TIME ALREADY SERVED 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 higher 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 institution, 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 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 atEXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD09857-01-3 S. 4821 2
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 classi- fied 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 offen- der, 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 suffi- cient 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 under- lying 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 requirements of this article. Where such sex offender violates such provision, probation may be imme- diately revoked in the manner provided by article four hundred ten of the criminal procedure law. S 2. 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, A DEFI- NITE SENTENCE OF NINETY DAYS OR LESS, OR A SENTENCE THAT WILL BE SATIS- FIED BY THE AMOUNT OF TIME ALREADY SERVED, 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 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 desig- nated 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 determi- nation 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 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 determinations, the court shall adjourn the hearing as necessary to permit the sex offender or the district attorney to obtain materials relevant to the determi- nations 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 determinations, the court shall review any victim's statement andS. 4821 3
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 3. The opening paragraph of subdivision 6 of section 168-l of the correction law, as amended by chapter 11 of the laws of 2002, is amended to read as follows: Applying these guidelines, EXCEPT WHERE THE SEX OFFENDER IS SERVING A DEFINITE SENTENCE OF NINETY DAYS OR LESS, OR A SENTENCE THAT WILL BE SATISFIED BY THE AMOUNT OF TIME ALREADY SERVED, the board shall within sixty calendar days prior to the discharge, parole, release to post-re- lease 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 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 notifica- tion 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 established in subdivision five of section one hundred sixty-eight-l of this article after receiving a recommendation from the board OR DISTRICT ATTORNEY pursuant to section one hundred sixty-eight-l OR SECTION ONE HUNDRED SIXTY-EIGHT-D of this article. 2. In addition, applying the guidelines established in subdivision five of section one hundred sixty-eight-l of this article, the sentenc- ing court shall also make a determination with respect to the level of notification, after receiving a recommendation from the board OR DISTRICT ATTORNEY pursuant to section one hundred sixty-eight-l OR SECTION ONE HUNDRED SIXTY-EIGHT-D of this article. Both determinationsS. 4821 4
of the sentencing court shall be made thirty calendar days prior to discharge, parole or release. S 5. This act shall take effect on the ninetieth day after it shall have become a law.