Corrections Law
§ 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.
NYSentencing