N.Y. Correction Law § 168-k: Registration for change of address from another state

§ 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.