Corrections Law
§ 168-o. Petition for relief or modification. 1. Any sex offender who
is classified as a level two risk, and who has not been designated a
sexual predator, or a sexually violent offender, or a predicate sex
offender, who is required to register or verify pursuant to this article
and who has been registered for a minimum period of thirty years may be
relieved of any further duty to register upon the granting of a petition
for relief by the sentencing court or by the court which made the
determination regarding duration of registration and level of
notification. The sex offender shall bear the burden of proving by clear
and convincing evidence that his or her risk of repeat offense and
threat to public safety is such that registration or verification is no
longer necessary. Such petition, if granted, shall not relieve the
petitioner of the duty to register pursuant to this article upon
conviction of any offense requiring registration in the future. Such a
petition shall not be considered more than once every two years. In the
event that the sex offender's petition for relief is granted, the
district attorney 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.
2. Any sex offender required to register or verify pursuant to this
article may petition the sentencing court or the court which made the
determination regarding the level of notification for an order modifying
the level of notification. The petition shall set forth the level of
notification sought, together with the reasons for seeking such
determination. The sex offender shall bear the burden of proving the
facts supporting the requested modification by clear and convincing
evidence. Such a petition shall not be considered more than annually. In
the event that the sex offender's petition to modify the level of
notification is granted, the district attorney 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 district attorney may file a petition to modify the level of
notification for a sex offender with the sentencing court or with the
court which made the determination regarding the level of notification,
where the sex offender (a) has been convicted of a new crime, or there
has been a determination after a proceeding pursuant to section 410.70
of the criminal procedure law or section two hundred fifty-nine-i of the
executive law that the sex offender has violated one or more conditions
imposed as part of a sentence of a conditional discharge, probation,
parole or post-release supervision for a designated crime, and (b) the
conduct underlying the new crime or the violation is of a nature that
indicates an increased risk of a repeat sex offense. The petition shall
set forth the level of notification sought, together with the reasons
for seeking such determination. The district attorney shall bear the
burden of proving the facts supporting the requested modification, by
clear and convincing evidence. In the event that the district attorney's
petition is granted, the sex offender 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 offender upon the ground that he or she is
financially unable to retain counsel, that assignment shall be continued
throughout the pendency of the appeal, and the person may proceed as a
poor person, pursuant to article eighteen-B of the county law.
4. Upon receipt of a petition submitted pursuant to subdivision one,
two or three of this section, the court shall forward a copy of the
petition to the board and request an updated recommendation pertaining
to the sex offender and shall provide a copy of the petition to the
other party. The court shall also advise the sex offender that he or
she has the right to be represented by counsel at the hearing and
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 offender, pursuant to
article eighteen-B of the county law. Where the petition was filed by a
district attorney, at least thirty days prior to making an updated
recommendation the board shall notify the sex offender and his or her
counsel that the offender's case is under review and he or she is
permitted to submit to the board any information relevant to the review.
The board's updated recommendation on the sex offender shall be
confidential and shall not be available for public inspection. After
receiving an updated recommendation from the board concerning a sex
offender, the court shall, at least thirty days prior to ruling upon the
petition, provide a copy of the updated recommendation to the sex
offender, the sex offender's counsel and the district attorney and
notify them, in writing, of the date set by the court for a hearing on
the petition. After reviewing the recommendation received from the board
and any relevant materials and evidence submitted by the sex offender
and the district attorney, the court may grant or deny the petition. The
court may also consult with the victim prior to making a determination
on the petition. The court shall render an order setting forth its
determination, and the findings of fact and conclusions of law on which
the determination is based. If the petition is granted, it shall be the
obligation of the court to submit a copy of its order 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.
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