N.Y. Correction Law § 168-n: Judicial determination

§ 168-n. Judicial determination. 1. A determination that an offender

is 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 shall be made prior to the discharge,

parole, release to post-release supervision or release of such offender

by the sentencing court applying the guidelines established in

subdivision five of section one hundred sixty-eight-l of this article

after receiving a recommendation from the board pursuant to section one

hundred sixty-eight-l of this article.

2. In addition, applying the guidelines established in subdivision

five of section one hundred sixty-eight-l of this article, the

sentencing court shall also make a determination with respect to the

level of notification, after receiving a recommendation from the board

pursuant to section one hundred sixty-eight-l of this article. Both

determinations of the sentencing court shall be made thirty calendar

days prior to discharge, parole or release.

3. No later than thirty days prior to the board's 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. Upon receipt of the board's recommendation, the

sentencing court shall determine whether the sex offender was previously

found to be eligible for assigned counsel in the underlying case. Where

such a finding was previously made, the court shall assign counsel to

represent the offender, pursuant to article eighteen-B of the county

law. At least twenty days prior to the determination proceeding, the

sentencing court shall notify the district attorney, the sex offender

and the sex offender's counsel, in writing, of the date of the

determination proceeding and shall also provide the district attorney,

the sex offender and the sex offender's counsel 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 written

notice to the sex offender shall also advise the offender that he or she

has a right to a hearing prior to the court's determination, and that he

or she has the right to be represented by counsel at the hearing. If

counsel has been assigned to represent the offender at the determination

proceeding, the notice shall also provide the name, address and

telephone number of the assigned counsel. Where counsel has not been

assigned, the notice shall advise the sex offender that counsel will be

appointed if he or she is financially unable to retain counsel, and 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. 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 materials submitted by the board, and 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. Upon determination that the risk of repeat offense and threat to

public safety is high, the sentencing court shall also notify the

division of such fact for the purposes of section one hundred

sixty-eight-q of this article.

5. Upon the reversal of a conviction of a sexual offense defined in

paragraphs (a) and (b) of subdivision two or three of section one

hundred sixty-eight-a of this article, the appellate court shall remand

the case to the lower court for entry of an order directing the

expungement of any records required to be kept herein.

6. 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.