§ 168-N — Judicial determination

§ 168-n. Judicial determination. 1. A determination that an offender\nis a sexual predator, sexually violent offender, or predicate sex\noffender as defined in subdivision seven of section one hundred\nsixty-eight-a of this article shall be made prior to the discharge,\nparole, release to post-release supervision or release of such offender\nby the sentencing court applying the guidelines established in\nsubdivision five of section one hundred sixty-eight-l of this article\nafter receiving a recommendation from the board pursuant to section one\nhundred sixty-eight-l of this article.\n 2. In addition, applying the guidelines established in subdivision\nfive of section one hundred sixty-eight-l of this article, the\nsentencing court shall also make a determination with respect to the\nlevel of notification, after receiving a recommendation from the board\npursuant to section one hundred sixty-eight-l of this article. Both\ndeterminations of the sentencing court shall be made thirty calendar\ndays prior to discharge, parole or release.\n 3. No later than thirty days prior to the board's recommendation, the\nsex offender shall be notified that his or her case is under review and\nthat he or she is permitted to submit to the board any information\nrelevant to the review. Upon receipt of the board's recommendation, the\nsentencing court shall determine whether the sex offender was previously\nfound to be eligible for assigned counsel in the underlying case. Where\nsuch a finding was previously made, the court shall assign counsel to\nrepresent the offender, pursuant to article eighteen-B of the county\nlaw. At least twenty days prior to the determination proceeding, the\nsentencing court shall notify the district attorney, the sex offender\nand the sex offender's counsel, in writing, of the date of the\ndetermination proceeding and shall also provide the district attorney,\nthe sex offender and the sex offender's counsel with a copy of the\nrecommendation received from the board and any statement of the reasons\nfor the recommendation received from the board. This notice shall\ninclude the following statement or a substantially similar statement:\n"This proceeding is being held to determine whether you will be\nclassified as a level 3 offender (risk of repeat offense is high), a\nlevel 2 offender (risk of repeat offense is moderate), or a level 1\noffender (risk of repeat offense is low), or whether you will be\ndesignated as a sexual predator, a sexually violent offender or a\npredicate sex offender, which will determine how long you must register\nas a sex offender and how much information can be provided to the public\nconcerning your registration. If you fail to appear at this proceeding,\nwithout sufficient excuse, it shall be held in your absence. Failure to\nappear may result in a longer period of registration or a higher level\nof community notification because you are not present to offer evidence\nor contest evidence offered by the district attorney." The written\nnotice to the sex offender shall also advise the offender that he or she\nhas a right to a hearing prior to the court's determination, and that he\nor she has the right to be represented by counsel at the hearing. If\ncounsel has been assigned to represent the offender at the determination\nproceeding, the notice shall also provide the name, address and\ntelephone number of the assigned counsel. Where counsel has not been\nassigned, the notice shall advise the sex offender that counsel will be\nappointed if he or she is financially unable to retain counsel, and a\nreturnable form shall be enclosed in the court's notice to the sex\noffender on which the sex offender may apply for assignment of counsel.\nIf the sex offender applies for assignment of counsel and the court\nfinds that the offender is financially unable to retain counsel, the\ncourt shall assign counsel to represent the sex offender pursuant to\narticle eighteen-B of the county law. If the district attorney seeks a\ndetermination that differs from the recommendation submitted by the\nboard, at least ten days prior to the determination proceeding the\ndistrict attorney shall provide to the court and the sex offender a\nstatement setting forth the determinations sought by the district\nattorney together with the reasons for seeking such determinations. The\ncourt shall allow the sex offender to appear and be heard. The state\nshall appear by the district attorney, or his or her designee, who shall\nbear the burden of proving the facts supporting the determinations\nsought by clear and convincing evidence. Where there is a dispute\nbetween the parties concerning the determinations, the court shall\nadjourn the hearing as necessary to permit the sex offender or the\ndistrict attorney to obtain materials relevant to the determinations\nfrom the state board of examiners of sex offenders or any state or local\nfacility, hospital, institution, office, agency, department or division.\nSuch materials may be obtained by subpoena if not voluntarily provided\nto the requesting party. In making the determinations the court shall\nreview any victim's statement and any relevant materials and evidence\nsubmitted by the sex offender and the district attorney and the\nrecommendation and any materials submitted by the board, and may\nconsider reliable hearsay evidence submitted by either party, provided\nthat it is relevant to the determinations. Facts previously proven at\ntrial or elicited at the time of entry of a plea of guilty shall be\ndeemed established 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. Upon determination that the risk of repeat offense and threat to\npublic safety is high, the sentencing court shall also notify the\ndivision of such fact for the purposes of section one hundred\nsixty-eight-q of this article.\n 5. Upon the reversal of a conviction of a sexual offense defined in\nparagraphs (a) and (b) of subdivision two or three of section one\nhundred sixty-eight-a of this article, the appellate court shall remand\nthe case to the lower court for entry of an order directing the\nexpungement of any records required to be kept herein.\n 6. 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