N.Y. Correction Law § 168-o: Petition for relief or modification

§ 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.