§ 168-o. Petition for relief or modification.
1.Any sex offender who\nis classified as a level two risk, and who has not been designated a\nsexual predator, or a sexually violent offender, or a predicate sex\noffender, who is required to register or verify pursuant to this article\nand who has been registered for a minimum period of thirty years may be\nrelieved of any further duty to register upon the granting of a petition\nfor relief by the sentencing court or by the court which made the\ndetermination regarding duration of registration and level of\nnotification. The sex offender shall bear the burden of proving by clear\nand convincing evidence that his or her risk of repeat offense and\nthreat to public safety is such that registration or verification is no\nlonger necessary. Such
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§ 168-o. Petition for relief or modification. 1. Any sex offender who\nis classified as a level two risk, and who has not been designated a\nsexual predator, or a sexually violent offender, or a predicate sex\noffender, who is required to register or verify pursuant to this article\nand who has been registered for a minimum period of thirty years may be\nrelieved of any further duty to register upon the granting of a petition\nfor relief by the sentencing court or by the court which made the\ndetermination regarding duration of registration and level of\nnotification. The sex offender shall bear the burden of proving by clear\nand convincing evidence that his or her risk of repeat offense and\nthreat to public safety is such that registration or verification is no\nlonger necessary. Such petition, if granted, shall not relieve the\npetitioner of the duty to register pursuant to this article upon\nconviction of any offense requiring registration in the future. Such a\npetition shall not be considered more than once every two years. In the\nevent that the sex offender's petition for relief is granted, the\ndistrict attorney may appeal as of right from the order pursuant to the\nprovisions of articles fifty-five, fifty-six and fifty-seven of the\ncivil practice law and rules. Where counsel has been assigned to\nrepresent the sex offender upon the ground that the sex offender is\nfinancially unable to retain counsel, that assignment shall be continued\nthroughout the pendency of the appeal, and the person may appeal as a\npoor person pursuant to article eighteen-B of the county law.\n 2. Any sex offender required to register or verify pursuant to this\narticle may petition the sentencing court or the court which made the\ndetermination regarding the level of notification for an order modifying\nthe level of notification. The petition shall set forth the level of\nnotification sought, together with the reasons for seeking such\ndetermination. The sex offender shall bear the burden of proving the\nfacts supporting the requested modification by clear and convincing\nevidence. Such a petition shall not be considered more than annually. In\nthe event that the sex offender's petition to modify the level of\nnotification is granted, the district attorney may appeal as of right\nfrom the order pursuant to the provisions of articles fifty-five,\nfifty-six and fifty-seven of the civil practice law and rules. Where\ncounsel has been assigned to represent the sex offender upon the ground\nthat the sex offender is financially unable to retain counsel, that\nassignment shall be continued throughout the pendency of the appeal, and\nthe person may appeal as a poor person pursuant to article eighteen-B of\nthe county law.\n 3. The district attorney may file a petition to modify the level of\nnotification for a sex offender with the sentencing court or with the\ncourt which made the determination regarding the level of notification,\nwhere the sex offender (a) has been convicted of a new crime, or there\nhas been a determination after a proceeding pursuant to section 410.70\nof the criminal procedure law or section two hundred fifty-nine-i of the\nexecutive law that the sex offender has violated one or more conditions\nimposed as part of a sentence of a conditional discharge, probation,\nparole or post-release supervision for a designated crime, and (b) the\nconduct underlying the new crime or the violation is of a nature that\nindicates an increased risk of a repeat sex offense. The petition shall\nset forth the level of notification sought, together with the reasons\nfor seeking such determination. The district attorney shall bear the\nburden of proving the facts supporting the requested modification, by\nclear and convincing evidence. In the event that the district attorney's\npetition is granted, the sex offender may appeal as of right from the\norder, pursuant to the provisions of articles fifty-five, fifty-six and\nfifty-seven of the civil practice law and rules. Where counsel has been\nassigned to represent the offender upon the ground that he or she is\nfinancially unable to retain counsel, that assignment shall be continued\nthroughout the pendency of the appeal, and the person may proceed as a\npoor person, pursuant to article eighteen-B of the county law.\n 4. Upon receipt of a petition submitted pursuant to subdivision one,\ntwo or three of this section, the court shall forward a copy of the\npetition to the board and request an updated recommendation pertaining\nto the sex offender and shall provide a copy of the petition to the\nother party. The court shall also advise the sex offender that he or\nshe has the right to be represented by counsel at the hearing and\ncounsel will be appointed if he or she is financially unable to retain\ncounsel. A returnable form shall be enclosed in the court's notice to\nthe sex offender on which the sex offender may apply for assignment of\ncounsel. If the sex offender applies for assignment of counsel and the\ncourt finds that the offender is financially unable to retain counsel,\nthe court shall assign counsel to represent the offender, pursuant to\narticle eighteen-B of the county law. Where the petition was filed by a\ndistrict attorney, at least thirty days prior to making an updated\nrecommendation the board shall notify the sex offender and his or her\ncounsel that the offender's case is under review and he or she is\npermitted to submit to the board any information relevant to the review.\nThe board's updated recommendation on the sex offender shall be\nconfidential and shall not be available for public inspection. After\nreceiving an updated recommendation from the board concerning a sex\noffender, the court shall, at least thirty days prior to ruling upon the\npetition, provide a copy of the updated recommendation to the sex\noffender, the sex offender's counsel and the district attorney and\nnotify them, in writing, of the date set by the court for a hearing on\nthe petition. After reviewing the recommendation received from the board\nand any relevant materials and evidence submitted by the sex offender\nand the district attorney, the court may grant or deny the petition. The\ncourt may also consult with the victim prior to making a determination\non the petition. The court shall render an order setting forth its\ndetermination, and the findings of fact and conclusions of law on which\nthe determination is based. If the petition is granted, it shall be the\nobligation of the court to submit a copy of its order to the division.\nUpon application of either party, the court shall seal any portion of\nthe court file or record which contains material that is confidential\nunder any state or federal statute.\n