N.Y. Correction Law § 168-d: Duties of the court

§ 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.