§ 168-D — Duties of the court

§ 168-d. Duties of the court. 1. (a) Except as provided in paragraphs\n(b) and (c) of this subdivision, upon conviction of any of the offenses\nset forth in subdivision two or three of section one hundred\nsixty-eight-a of this article the court shall certify that the person is\na sex offender and shall include the certification in the order of\ncommitment, if any, and judgment of conviction, except as provided in\nparagraph (e) of subdivision two of section one hundred sixty-eight-a of\nthis article. The court shall also advise the sex offender of his or her\nduties under this article. Failure to include the certification in the\norder of commitment or the judgment of conviction shall not relieve a\nsex offender of the obligations imposed by this article.\n (b) Where a defendant stands convicted of an offense defined in\nparagraph (b) of subdivision two of section one hundred sixty-eight-a of\nthis article or where the defendant was convicted of patronizing a\nperson for prostitution in the third degree under section 230.04 of the\npenal law and the defendant controverts an allegation that the victim of\nsuch offense was less than eighteen years of age or, in the case of a\nconviction under section 230.04 of the penal law, less than seventeen\nyears of age, the court, without a jury, shall, prior to sentencing,\nconduct a hearing, and the people may prove by clear and convincing\nevidence that the victim was less than eighteen years old or less than\nseventeen years old, as applicable, by any evidence admissible under the\nrules applicable to a trial of the issue of guilt. The court in addition\nto such admissible evidence may also consider reliable hearsay evidence\nsubmitted by either party provided that it is relevant to the\ndetermination of the age of the victim. Facts concerning the age of the\nvictim proven at trial or ascertained at the time of entry of a plea of\nguilty shall be deemed established by clear and convincing evidence and\nshall not be relitigated. At the conclusion of the hearing, or if the\ndefendant does not controvert an allegation that the victim of the\noffense was less than eighteen years old or less than seventeen years\nold, as applicable, the court must make a finding and enter an order\nsetting forth the age of the victim. If the court finds that the victim\nof such offense was under eighteen years old or under seventeen years\nold, as applicable, the court shall certify the defendant as a sex\noffender, the provisions of paragraph (a) of this subdivision shall\napply and the defendant shall register with the division in accordance\nwith the provisions of this article.\n (c) Where a defendant stands convicted of an offense defined in\nparagraph (c) of subdivision two of section one hundred sixty-eight-a of\nthis article and the defendant controverts an allegation that the\ndefendant was previously convicted of a sex offense or a sexually\nviolent offense defined in this article or has previously been convicted\nof or convicted for an attempt to commit any of the provisions of\nsection 130.52 or 130.55 of the penal law, the court, without a jury,\nshall, prior to sentencing, conduct a hearing, and the people may prove\nby clear and convincing evidence that the defendant was previously\nconvicted of a sex offense or a sexually violent offense defined in this\narticle or has previously been convicted of or convicted for an attempt\nto commit any of the provisions of section 130.52 or 130.55 of the penal\nlaw, by any evidence admissible under the rules applicable to a trial of\nthe issue of guilt. The court in addition to such admissible evidence\nmay also consider reliable hearsay evidence submitted by either party\nprovided that it is relevant to the determination of whether the\ndefendant was previously convicted of a sex offense or a sexually\nviolent offense defined in this article or has previously been convicted\nof or convicted for an attempt to commit any of the provisions of\nsection 130.52 or 130.55 of the penal law. At the conclusion of the\nhearing, or if the defendant does not controvert an allegation that the\ndefendant was previously convicted of a sex offense or a sexually\nviolent offense defined in this article or has previously been convicted\nof or convicted for an attempt to commit any of the provisions of\nsection 130.52 or 130.55 of the penal law, the court must make a finding\nand enter an order determining whether the defendant was previously\nconvicted of a sex offense or a sexually violent offense defined in this\narticle or has previously been convicted of or convicted for an attempt\nto commit any of the provisions of section 130.52 or 130.55 of the penal\nlaw. If the court finds that the defendant has such a previous\nconviction, the court shall certify the defendant as a sex offender, the\nprovisions of paragraph (a) of this subdivision shall apply and the\ndefendant shall register with the division in accordance with the\nprovisions of this article.\n 2. Any sex offender, who is released on probation or discharged upon\npayment of a fine, conditional discharge or unconditional discharge\nshall, prior to such release or discharge, be informed of his or her\nduty to register under this article by the court in which he or she was\nconvicted. At the time sentence is imposed, such sex offender shall\nregister with the division on a form prepared by the division. The court\nshall require the sex offender to read and sign such form and to\ncomplete the registration portion of such form. The court shall on such\nform obtain the address where the sex offender expects to reside upon\nhis or her release, and the name and address of any institution of\nhigher education he or she expects to be employed by, enrolled in,\nattending or employed, whether for compensation or not, and whether he\nor she expects to reside in a facility owned or operated by such an\ninstitution, and shall report such information to the division. The\ncourt shall give one copy of the form to the sex offender and shall send\ntwo copies to the division which shall forward the information to the\nlaw enforcement agencies having jurisdiction. The court shall also\nnotify the district attorney and the sex offender of the date of the\ndetermination proceeding to be held pursuant to subdivision three of\nthis section, which shall be held at least forty-five days after such\nnotice is given. This notice shall include the following statement or a\nsubstantially similar statement: "This proceeding is being held to\ndetermine whether you will be classified as a level 3 offender (risk of\nrepeat offense is high), a level 2 offender (risk of repeat offense is\nmoderate), or a level 1 offender (risk of repeat offense is low), or\nwhether you will be designated as a sexual predator, a sexually violent\noffender or a predicate sex offender, which will determine how long you\nmust register as a sex offender and how much information can be provided\nto the public concerning your registration. If you fail to appear at\nthis proceeding, without sufficient excuse, it shall be held in your\nabsence. Failure to appear may result in a longer period of registration\nor a higher level of community notification because you are not present\nto offer evidence or contest evidence offered by the district attorney."\nThe court shall also advise the sex offender that he or she has a right\nto a hearing prior to the court's determination, that he or she has the\nright to be represented by counsel at the hearing and that counsel will\nbe appointed if he or she is financially unable to retain counsel. If\nthe sex offender applies for assignment of counsel to represent him or\nher at the hearing and counsel was not previously assigned to represent\nthe sex offender in the underlying criminal action, the court shall\ndetermine whether the offender is financially unable to retain counsel.\nIf such a finding is made, the court shall assign counsel to represent\nthe sex offender pursuant to article eighteen-B of the county law. Where\nthe court orders a sex offender released on probation, such order must\ninclude a provision requiring that he or she comply with the\nrequirements of this article. Where such sex offender violates such\nprovision, probation may be immediately revoked in the manner provided\nby article four hundred ten of the criminal procedure law.\n 3. For sex offenders released on probation or discharged upon payment\nof a fine, conditional discharge or unconditional discharge, it shall be\nthe duty of the court applying the guidelines established in subdivision\nfive of section one hundred sixty-eight-l of this article to determine\nthe level of notification pursuant to subdivision six of section one\nhundred sixty-eight-l of this article and whether such sex offender\nshall be designated a sexual predator, sexually violent offender, or\npredicate sex offender as defined in subdivision seven of section one\nhundred sixty-eight-a of this article. At least fifteen days prior to\nthe determination proceeding, the district attorney shall provide to the\ncourt and the sex offender a written statement setting forth the\ndeterminations sought by the district attorney together with the reasons\nfor seeking such determinations. The court shall allow the sex offender\nto appear and be heard. The state shall appear by the district attorney,\nor his or her designee, who shall bear the burden of proving the facts\nsupporting the determinations sought by clear and convincing evidence.\nWhere there is a dispute between the parties concerning the\ndeterminations, the court shall adjourn the hearing as necessary to\npermit the sex offender or the district attorney to obtain materials\nrelevant to the determinations from any state or local facility,\nhospital, institution, office, agency, department or division. Such\nmaterials may be obtained by subpoena if not voluntarily provided to the\nrequesting party. In making the determinations, the court shall review\nany victim's statement and any relevant materials and evidence submitted\nby the sex offender and the district attorney and the court may consider\nreliable hearsay evidence submitted by either party provided that it is\nrelevant to the determinations. Facts previously proven at trial or\nelicited at the time of entry of a plea of guilty shall be deemed\nestablished by clear and convincing evidence and shall not be\nrelitigated. The court shall render an order setting forth its\ndeterminations and the findings of fact and conclusions of law on which\nthe determinations are based. A copy of the order shall be submitted by\nthe court to the division. Upon application of either party, the court\nshall seal any portion of the court file or record which contains\nmaterial that is confidential under any state or federal statute. Either\nparty may appeal as of right from the order pursuant to the provisions\nof articles fifty-five, fifty-six and fifty-seven of the civil practice\nlaw and rules. Where counsel has been assigned to represent the sex\noffender upon the ground that the sex offender is financially unable to\nretain counsel, that assignment shall be continued throughout the\npendency of the appeal, and the person may appeal as a poor person\npursuant to article eighteen-B of the county law.\n 4. If a sex offender, having been given notice, including the time and\nplace of the determination proceeding in accordance with this section,\nfails to appear at this proceeding, without sufficient excuse, the court\nshall conduct the hearing and make the determinations in the manner set\nforth in subdivision three of this section.\n