NY Corr L § 168-D (2021)
2021 New York Laws COR - Correction Article 6-C - Sex Offender Registration Act 168-D - Duties of the Court.

§  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, 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 shall not relieve a sex offender of the obligations imposed by this article.  (b) Where a defendant  stands  convicted  of  an  offense  defined  in paragraph (b) of subdivision two of section one hundred sixty-eight-a of this  article  or  where  the  defendant  was convicted of patronizing a person for prostitution 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, conduct a hearing, and the people may  prove  by  clear  and  convincing evidence  that  the victim was less than eighteen years old or less than seventeen years old, 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 shall be deemed established by clear and convincing evidence  and shall  not  be  relitigated. 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 old or less than seventeen years old, as applicable, 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 old or  under  seventeen  years old,  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 paragraph (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, 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  division  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 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 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 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 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 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 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 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  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 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.   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.