NY Corr L § 168-N (2021)
2021 New York Laws COR - Correction Article 6-C - Sex Offender Registration Act 168-N - Judicial Determination.

§  168-n.  Judicial determination. 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 pursuant to section  one   hundred sixty-eight-l of this article.2.  In  addition,  applying  the guidelines 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  thirty  calendar   days prior to discharge, parole or release.3.  No later than thirty days prior to the board's 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. Upon receipt of the board's recommendation,  the   sentencing court shall determine whether the sex offender was previously   found  to be eligible for assigned counsel in the underlying case. Where   such a finding was previously made, the court shall  assign  counsel  to   represent  the  offender,  pursuant  to article eighteen-B of the county   law. At least twenty days prior to  the  determination  proceeding,  the   sentencing  court  shall  notify the district attorney, the sex offender   and the  sex  offender's  counsel,  in  writing,  of  the  date  of  the   determination  proceeding  and shall also provide the district attorney,   the sex offender and the sex offender's  counsel  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  written   notice to the sex offender shall also advise the offender that he or she   has a right to a hearing prior to the court's determination, and that he   or  she  has  the  right to be represented by counsel at the hearing. If   counsel has been assigned to represent the offender at the determination   proceeding,  the  notice  shall  also  provide  the  name,  address  and   telephone  number  of  the  assigned counsel. Where counsel has not been   assigned, the notice shall advise the sex offender that counsel will  be   appointed  if  he  or she is financially unable to retain counsel, and 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   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 the state board of examiners of sex offenders or 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   recommendation  and  any  materials  submitted  by  the  board,  and 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.  Upon  determination  that the risk of repeat offense and threat to   public safety is high,  the  sentencing  court  shall  also  notify  the   division   of  such  fact  for  the  purposes  of  section  one  hundred   sixty-eight-q of this article.5. Upon the reversal of a conviction of a sexual  offense  defined  in   paragraphs  (a)  and  (b)  of  subdivision  two  or three of section one   hundred sixty-eight-a of this article, the appellate court shall  remand   the  case  to  the  lower  court  for  entry  of  an order directing the   expungement of any records required to be kept herein.6. 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.