2023 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.