Corrections Law
§ 168-k. Registration for change of address from another state. 1. A
sex offender who has been convicted of an offense which requires
registration under paragraph (d) of subdivision two or paragraph (b) of
subdivision three of section one hundred sixty-eight-a of this article
shall notify the division of the new address no later than ten calendar
days after such sex offender establishes residence in this state.
2. The division shall advise the board that the sex offender has
established residence in this state. The board shall determine whether
the sex offender is required to register with the division. If it is
determined that the sex offender is required to register, the division
shall notify the sex offender of his or her duty to register under this
article and shall require the sex offender to sign a form as may be
required by the division acknowledging that the duty to register and the
procedure for registration has been explained to the sex offender. The
division shall obtain on such form the address where the sex offender
expects to reside within the state and the sex offender shall retain one
copy of the form and send two copies to the division which shall provide
the information to the law enforcement agency having jurisdiction where
the sex offender expects to reside within this state. No later than
thirty days prior to the board making a recommendation, the sex offender
shall be notified that his or her case is under review and that he or
she is permitted to submit to the board any information relevant to the
review. After reviewing any information obtained, and applying the
guidelines established in subdivision five of section one hundred
sixty-eight-l of this article, the board shall within sixty calendar
days make a recommendation regarding 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.
This recommendation shall be confidential and shall not be available for
public inspection. It shall be submitted by the board to the county
court or supreme court and to the district attorney in the county of
residence of the sex offender and to the sex offender. It shall be the
duty of the county court or supreme court in the county of residence of
the sex offender, 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 thirty days prior to the
determination proceeding, such court shall notify the district attorney
and the sex offender, in writing, of the date of the determination
proceeding and the court shall also provide the district attorney and
sex offender with a copy of the recommendation received from the board
and any statement of the reasons for the recommendation received from
the board. 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. A
returnable form shall be enclosed in the court's notice to the sex
offender on which the sex offender may apply for assignment of counsel.
If the sex offender applies for assignment of counsel and the court
finds that the offender is financially unable to retain counsel, the
court shall assign counsel to represent the sex offender pursuant to
article eighteen-B of the county law. If the district attorney seeks a
determination that differs from the recommendation submitted by the
board, at least ten days prior to the determination proceeding the
district attorney shall provide to the court and the sex offender a
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. 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. 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 the state board
of examiners of sex offenders or 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 recommendation and any
material submitted by the board, and may consider reliable hearsay
evidence submitted by either party, provided that it is relevant to the
determinations. If available, facts proven at trial or elicited at the
time 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.
3. The division shall undertake an information campaign designed to
provide information to officials and appropriate individuals in other
states and United States possessions concerning the notification
procedures required by this article. Such information campaign shall be
ongoing, and shall include, but not be limited to, letters, notice forms
and similar materials providing relevant information about this article
and the specific procedures required to effect notification. Such
materials shall include an address and telephone number which such
officials and individuals in other states and United States possessions
may use to obtain additional information.
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 two of this section.
NYSentencing