SEX OFFENDER MANAGEMENT TREATMENT ACT

LAWS OF NEW YORK, 2007
CHAPTER 7

AN ACT to amend the mental hygiene law, the executive law, the
correction law, the criminal procedure law, the family court act, the
judiciary law, the penal law and the county law, in relation to the
treatment, supervision, and civil commitment of sex offenders requir-
ing continuing management and the criminal punishment of sex offenders

Became a law March 14, 2007, with the approval of the Governor.
Passed by a majority vote, three-fifths being present.

EXPLANATION--Matter in italics is new; matter in brackets [ ] is old law
to be omitted.

The People of the State of New York, represented in Senate and Assem-
bly, do enact as follows:

Section 1. Short title. This act shall be known and may be cited as
the "sex offender management and treatment act."
§ 2. The mental hygiene law is amended by adding a new article 10 to
read as follows:
ARTICLE 10
SEX OFFENDERS REQUIRING CIVIL COMMITMENT OR SUPERVISION
Section 10.01 Legislative findings.
10.03 Definitions.
10.05 Notice and case review.
10.06 Petition and hearing.
10.07 Trial.
10.08 Procedures under this article.
10.09 Annual examinations and petitions for discharge.
10.10 Treatment and confinement.
10.11 Regimen of strict and intensive supervision and treatment.
10.13 Appeals.
10.15 Compensation, fees and expenses.
10.17 Release of information authorized.
§ 10.01 Legislative findings. The legislature finds as follows:
(a) That recidivistic sex offenders pose a danger to society that
should be addressed through comprehensive programs of treatment and
management. Civil and criminal processes have distinct but overlapping
goals, and both should be part of an integrated approach that is based
on evolving scientific understanding, flexible enough to respond to
current needs of individual offenders, and sufficient to provide mean-
ingful treatment and to protect the public.
(b) That some sex offenders have mental abnormalities that predispose
them to engage in repeated sex offenses. These offenders may require
long-term specialized treatment modalities to address their risk to
reoffend. They should receive such treatment while they are incarcerated
as a result of the criminal process, and should continue to receive
treatment when that incarceration comes to an end. In extreme cases,
confinement of the most dangerous offenders will need to be extended by
civil process in order to provide them such treatment and to protect the
public from their recidivistic conduct.
(c) That for other sex offenders, it can be effective and appropriate
to provide treatment in a regimen of strict and intensive outpatient
supervision. Accordingly, civil commitment should be only one element
in a range of responses to the need for treatment of sex offenders. The
goal of a comprehensive system should be to protect the public, reduce
recidivism, and ensure offenders have access to proper treatment.
(d) That some of the goals of civil commitment - protection of socie-
ty, supervision of offenders, and management of their behavior - are
appropriate goals of the criminal process as well. For some recidivistic
sex offenders, appropriate criminal sentences, including long-term post-
release supervision, may be the most appropriate way to achieve those
goals.
(e) That the system for responding to recidivistic sex offenders with
civil measures must be designed for treatment and protection. It should
be based on the most accurate scientific understanding available,
including the use of current, validated risk assessment instruments.
Ideally, effective risk assessment should begin to occur prior to
sentencing in the criminal process, and it should guide the process of
civil commitment.
(f) That the system should offer meaningful forms of treatment to sex
offenders in all criminal and civil phases, including during incarcera-
tion, civil commitment, and outpatient supervision.
(g) That sex offenders in need of civil commitment are a different
population from traditional mental health patients, who have different
treatment needs and particular vulnerabilities. Accordingly, civil
commitment of sex offenders should be implemented in ways that do not
endanger, stigmatize, or divert needed treatment resources away from
such traditional mental health patients.
§ 10.03 Definitions.
As used in this article, the following terms shall have the following
meanings:
(a) "Agency with jurisdiction" as to a person means that agency which,
during the period in question, would be the agency responsible for
supervising or releasing such person, and can include the department of
correctional services, the office of mental health, the office of mental
retardation and developmental disabilities, and the division of parole.
(b) "Commissioner" means the commissioner of mental health or the
commissioner of mental retardation and developmental disabilities.
(c) "Correctional facility" means a correctional facility as that term
is defined in section two of the correction law.
(d) "Counsel for respondent" means any counsel that has been retained
or appointed for respondent, or if no other counsel has been retained or
appointed, or prior counsel cannot be located with reasonable efforts,
then the mental hygiene legal service.
(e) "Dangerous sex offender requiring confinement" means a person who
is a detained sex offender suffering from a mental abnormality involving
such a strong predisposition to commit sex offenses, and such an inabil-
ity to control behavior, that the person is likely to be a danger to
others and to commit sex offenses if not confined to a secure treatment
facility.
(f) "Designated felony" means any felony offense defined by any of the
following provisions of the penal law: assault in the second degree as
defined in section 120.05, assault in the first degree as defined in
section 120.10, gang assault in the second degree as defined in section
120.06, gang assault in the first degree as defined in section 120.07,
stalking in the first degree as defined in section 120.60, manslaughter
in the second degree as defined in subdivision one of section 125.15,
manslaughter in the first degree as defined in section 125.20, murder in
the second degree as defined in section 125.25, aggravated murder as
defined in section 125.26, murder in the first degree as defined in
section 125.27, kidnapping in the second degree as defined in section
135.20, kidnapping in the first degree as defined in section 135.25,
burglary in the third degree as defined in section 140.20, burglary in
the second degree as defined in section 140.25, burglary in the first
degree as defined in section 140.30, arson in the second degree as
defined in section 150.15, arson in the first degree as defined in
section 150.20, robbery in the third degree as defined in section
160.05, robbery in the second degree as defined in section 160.10,
robbery in the first degree as defined in section 160.15, promoting
prostitution in the second degree as defined in section 230.30, promot-
ing prostitution in the first degree as defined in section 230.32,
compelling prostitution as defined in section 230.33, disseminating
indecent material to minors in the first degree as defined in section
235.22, use of a child in a sexual performance as defined in section
263.05, promoting an obscene sexual performance by a child as defined in
section 263.10, promoting a sexual performance by a child as defined in
section 263.15, or any felony attempt or conspiracy to commit any of the
foregoing offenses.
(g) "Detained sex offender" means a person who is in the care, custo-
dy, control, or supervision of an agency with jurisdiction, with respect
to a sex offense or designated felony, in that the person is either:
(1) A person who stands convicted of a sex offense as defined in
subdivision (p) of this section, and is currently serving a sentence
for, or subject to supervision by the division of parole, whether on
parole or on post-release supervision, for such offense or for a related
offense;
(2) A person charged with a sex offense who has been determined to be
an incapacitated person with respect to that offense and has been
committed pursuant to article seven hundred thirty of the criminal
procedure law, but did engage in the conduct constituting such offense;
(3) A person charged with a sex offense who has been found not respon-
sible by reason of mental disease or defect for the commission of that
offense;
(4) A person who stands convicted of a designated felony that was
sexually motivated and committed prior to the effective date of this
article;
(5) A person convicted of a sex offense who is, or was at any time
after September first, two thousand five, a patient in a hospital oper-
ated by the office of mental health, and who was admitted directly to
such facility pursuant to article nine of this title or section four
hundred two of the correction law upon release or conditional release
from a correctional facility, provided that the provisions of this arti-
cle shall not be deemed to shorten or lengthen the time for which such
person may be held pursuant to such article or section respectively; or
(6) A person who has been determined to be a sex offender requiring
civil management pursuant to this article.
(h) "Licensed psychologist" means a person who is registered as a
psychologist under article one hundred fifty-three of the education law.
(i) "Mental abnormality" means a congenital or acquired condition,
disease or disorder that affects the emotional, cognitive, or volitional
capacity of a person in a manner that predisposes him or her to the
commission of conduct constituting a sex offense and that results in
that person having serious difficulty in controlling such conduct.
(j) "Psychiatric examiner" means a qualified psychiatrist or a
licensed psychologist who has been designated to examine a person pursu-
ant to this article; such designee may, but need not, be an employee of
the office of mental health or the office of mental retardation and
developmental disabilities.
(k) "Qualified psychiatrist" means a physician licensed to practice
medicine in New York state who: (1) is a diplomate of the American board
of psychiatry and neurology or is eligible to be certified by that
board; or (2) is certified by the American osteopathic board of neurolo-
gy and psychiatry or is eligible to be certified by that board.
(l) "Related offenses" include any offenses that are prosecuted as
part of the same criminal action or proceeding, or which are part of the
same criminal transaction, or which are the bases of the orders of
commitment received by the department of correctional services in
connection with an inmate's current term of incarceration.
(m) "Release" and "released" means release, conditional release or
discharge from confinement, from supervision by the division of parole,
or from an order of observation, commitment, recommitment or retention.
(n) "Respondent" means a person referred to a case review team for
evaluation, a person as to whom a sex offender civil management petition
has been recommended by a case review team and not yet filed, or filed
by the attorney general and not dismissed, or sustained by procedures
under this article.
(o) "Secure treatment facility" means a facility or a portion of a
facility, designated by the commissioner, that may include a facility
located on the grounds of a correctional facility, that is staffed with
personnel from the office of mental health or the office of mental
retardation and developmental disabilities for the purposes of providing
care and treatment to persons confined under this article, and persons
defined in paragraph five of subdivision (g) of this section. Personnel
from these same agencies may provide security services, provided that
such staff are adequately trained in security methods and so equipped as
to minimize the risk or danger of escape.
(p) "Sex offense" means an act or acts constituting: (1) any felony
defined in article one hundred thirty of the penal law, including a
sexually motivated felony; (2) patronizing a prostitute in the first
degree as defined in section 230.06 of the penal law, incest in the
second degree as defined in section 255.26 of the penal law, or incest
in the first degree as defined in section 255.27 of the penal law; (3) a
felony attempt or conspiracy to commit any of the foregoing offenses set
forth in this subdivision; or (4) a designated felony, as defined in
subdivision (f) of this section, if sexually motivated and committed
prior to the effective date of this article.
(q) "Sex offender requiring civil management" means a detained sex
offender who suffers from a mental abnormality. A sex offender requiring
civil management can, as determined by procedures set forth in this
article, be either (1) a dangerous sex offender requiring confinement or
(2) a sex offender requiring strict and intensive supervision.
(r) "Sex offender requiring strict and intensive supervision" means a
detained sex offender who suffers from a mental abnormality but is not a
dangerous sex offender requiring confinement.
(s) "Sexually motivated" means that the act or acts constituting a
designated felony were committed in whole or in substantial part for the
purpose of direct sexual gratification of the actor.
§ 10.05 Notice and case review.
(a) The commissioner of mental health, in consultation with the
commissioner of the department of correctional services and the commis-
sioner of mental retardation and developmental disabilities, shall
establish a case review panel consisting of at least fifteen members,
any three of whom may sit as a team to review a particular case. At
least two members of each team shall be professionals in the field of
mental health or the field of mental retardation and developmental disa-
bilities, as appropriate, with experience in the treatment, diagnosis,
risk assessment or management of sex offenders. To the extent practica-
ble, the workload of the case review panel should be evenly distributed
among its members. Members of the case review panel and psychiatric
examiners should be free to exercise independent professional judgment
without pressure or retaliation for the exercise of that judgment from
any source.
(b) When it appears to an agency with jurisdiction, other than the
division of parole, that a person who may be a detained sex offender is
nearing an anticipated release, the agency shall give notice of that
fact to the attorney general and to the commissioner of mental health.
When the division of parole is the agency with jurisdiction, it may give
such notice. The agency with jurisdiction shall seek to give such
notice at least one hundred twenty days prior to the person's antic-
ipated release, but failure to give notice within such time period shall
not affect the validity of such notice or any subsequent action, includ-
ing the filing of a sex offender civil management petition.
(c) The notice to the attorney general and the commissioner of mental
health shall, to the extent possible, contain the following:
(1) The person's name, aliases, and other identifying information such
as date of birth, sex, physical characteristics, and anticipated future
residence;
(2) A photograph and a set of fingerprints;
(3) A description of the act or acts that constitute the sex offense
and a description of the person's criminal history, including the
person's most recent sentence and any supervisory terms that it
includes;
(4) The presentence reports prepared pursuant to article three hundred
ninety of the criminal procedure law and other available materials
concerning the person's sex offense; and
(5) A description of the person's institutional history, including his
or her participation in any sex offender treatment program.
(d) The commissioner shall be authorized to designate multidiscipli-
nary staff, including clinical and other professional personnel, to
provide a preliminary review of the need for detained sex offenders to
be evaluated under the procedures of this section. When the commission-
er receives notice pursuant to subdivision (b) of this section, such
staff shall review and assess relevant medical, clinical, criminal, or
institutional records, actuarial risk assessment instruments or other
records and reports, including records and reports provided by the
district attorney of the county where the person was convicted, or in
the case of persons determined to be incapacitated or not responsible by
reason of mental disease or defect, the county where the person was
charged. Upon such review and assessment, the staff shall determine
whether the person who is the subject of the notice should be referred
to a case review team for evaluation.
(e) If the person is referred to a case review team for evaluation,
notice of such referral shall be provided to the respondent. Upon such
referral, the case review team shall review relevant records, including
those described in subdivisions (c) and (d) of this section, and may
arrange for a psychiatric examination of the respondent. Based on the
review and assessment of such information, the case review team shall
consider whether the respondent is a sex offender requiring civil
management.
(f) If the case review team determines that the respondent is not a
sex offender requiring civil management, it shall so notify the respond-
ent and the attorney general, and the attorney general shall not file a
sex offender civil management petition.
(g) If the case review team finds that the respondent is a sex offen-
der requiring civil management, it shall so notify the respondent and
the attorney general, in writing. The written notice must be accompanied
by a written report from a psychiatric examiner that includes a finding
as to whether the respondent has a mental abnormality. Where the notice
indicates that a respondent stands convicted of or was charged with a
designated felony, it shall also include the case review team's finding
as to whether the act was sexually motivated. The case review team
shall provide its written notice to the attorney general and the
respondent within forty-five days of the commissioner receiving the
notice of anticipated release. However, failure to do so within that
time period shall not affect the validity of such notice or finding or
any subsequent action, including the attorney general's filing of a sex
offender civil management petition subsequent to receiving the finding
of the case review team.
§ 10.06 Petition and hearing.
(a) If the case review team finds that a respondent is a sex offender
requiring civil management, then the attorney general may file a sex
offender civil management petition in the supreme court or county court
of the county where the respondent is located. In determining whether
to file such a petition, the attorney general shall consider information
about any continuing supervision to which the respondent will be subject
as a result of criminal conviction, and shall take such supervision into
account when assessing the need for further management as provided by
this article. If the attorney general elects to file a sex offender
civil management petition, he or she shall serve a copy of the petition
upon the respondent. The petition shall contain a statement or state-
ments alleging facts of an evidentiary character tending to support the
allegation that the respondent is a sex offender requiring civil manage-
ment. The attorney general shall seek to file the petition within thir-
ty days after receiving notice of the case review team's finding, but
failure to do so within that period shall not affect the validity of the
petition.
(b) Within ten days after the attorney general files a sex offender
civil management petition, the respondent may file in the same court a
notice of removal to the county of the underlying criminal sex offense
charges. The attorney general may, in the court in which the petition is
pending, move for a retention of venue. Such motion shall be made within
five days after the attorney general is served with a notice of removal,
which time may be extended for good cause shown. The court shall grant
the motion if the attorney general shows good cause for such retention.
If the attorney general does not timely move for a retention of venue,
or does so move and the motion is denied, then the proceedings shall be
transferred to the county of the underlying criminal sex offense charg-
es. If the respondent does not timely file a notice of removal, or the
attorney general moves for retention of venue and such motion is grant-
ed, then the proceedings shall continue where the petition was filed.
(c) Promptly upon the filing of a sex offender civil management peti-
tion, or upon a request to the court by the attorney general for an
order pursuant to subdivision (d) of this section that a respondent
submit to an evaluation by a psychiatric examiner, whichever occurs
earlier, the court shall appoint counsel in any case where the respond-
ent is financially unable to obtain counsel. The court shall appoint the
mental hygiene legal service if possible. In the event that the court
determines that the mental hygiene legal service cannot accept appoint-
ment, the court shall appoint an attorney eligible for appointment
pursuant to article eighteen-B of the county law, or an entity, if any,
that has contracted for the delivery of legal representation services
under subdivision (c) of section 10.15 of this article. Counsel for the
respondent shall be provided with copies of the written notice made by
the case review team, the petition and the written reports of the
psychiatric examiners.
(d) At any time after receiving notice pursuant to subdivision (b) of
section 10.05 of this article, and prior to trial, the attorney general
may request the court in which the sex offender civil management peti-
tion could be filed, or is pending, to order the respondent to submit to
an evaluation by a psychiatric examiner. Upon such a request, the court
shall order that the respondent submit to an evaluation by a psychiatric
examiner chosen by the attorney general and, if the respondent is not
represented by counsel, the court shall appoint counsel for the respond-
ent. Following the evaluation, such psychiatric examiner shall report
his or her findings in writing to the attorney general, to counsel for
the respondent, and to the court.
(e) At any time after the filing of a sex offender civil management
petition, and prior to trial, the respondent may request the court in
which the petition is pending to order that he or she be evaluated by a
psychiatric examiner. Upon such a request, the court shall order an
evaluation by a psychiatric examiner. If the respondent is financially
unable to obtain an examiner, the court shall appoint an examiner of the
respondent's choice to be paid within the limits prescribed by law.
Following the evaluation, such psychiatric examiner shall report his or
her findings in writing to the respondent or counsel for the respondent,
to the attorney general, and to the court.
(f) Notwithstanding any other provision of this article, if it appears
that the respondent may be released prior to the time the case review
team makes a determination, and the attorney general determines that the
protection of public safety so requires, the attorney general may file a
securing petition at any time after receipt of written notice pursuant
to subdivision (b) of section 10.05 of this article. In such circum-
stance, there shall be no probable cause hearing until such time as the
case review team may find that the respondent is a sex offender requir-
ing civil management. If the case review team determines that the
respondent is not a sex offender requiring civil management, the attor-
ney general shall so advise the court and the securing petition shall be
dismissed.
(g) Within thirty days after the sex offender civil management peti-
tion is filed, or within such longer period as to which the respondent
may consent, the supreme court or county court before which the petition
is pending shall conduct a hearing without a jury to determine whether
there is probable cause to believe that the respondent is a sex offender
requiring civil management.
(h) If the respondent was released subsequent to notice under subdivi-
sion (b) of section 10.05 of this article, and is therefore at liberty
when the petition is filed, the court shall order the respondent's
return to confinement, observation, commitment, recommitment or
retention, as applicable, for purposes of the probable cause hearing.
When a court issues such an order, the hearing shall commence no later
than seventy-two hours from the date of the respondent's return. If the
respondent is not at liberty when the petition is filed, but becomes
eligible to be released prior to the probable cause hearing, the court
shall order the stay of such release pending the probable cause hearing.
When a court issues such an order, the hearing shall commence no later
than seventy-two hours from the date of the respondent's anticipated
release date. In either case, the release of the respondent shall be in
accordance with other provisions of law if the hearing does not commence
within such period of seventy-two hours, unless: (i) the failure to
commence the hearing was due to the respondent's request, action or
condition, or occurred with his or her consent; or (ii) the court is
satisfied that the attorney general has shown good cause why the hearing
could not so commence. Any failure to commence the probable cause hear-
ing within the time periods specified shall not result in the dismissal
of the petition and shall not affect the validity of the hearing or the
probable cause determination.
(i) The provisions of subdivision (g) of section 10.08 of this arti-
cle shall be applicable to the hearing. The hearing should be completed
in one session but, in the interest of justice, may be adjourned by the
court.
(j) The respondent's commission of a sex offense shall be deemed
established and shall not be relitigated at the probable cause hearing,
whenever it appears that: (i) the respondent stands convicted of such
offense; (ii) the respondent previously has been found not responsible
by reason of mental disease or defect for the commission of such offense
or for an act or acts constituting such offense; or (iii) the respondent
was indicted for such offense by a grand jury but found to be incompe-
tent to stand trial for such offense. Whenever the petition alleges the
respondent's commission of a designated felony prior to the effective
date of this article, the issue of whether there is probable cause to
believe that the commission of such offense was sexually motivated shall
be determined by the court.
(k) At the conclusion of the hearing, the court shall determine wheth-
er there is probable cause to believe that the respondent is a sex
offender requiring civil management. If the court determines that proba-
ble cause has not been established, the court shall issue an order
dismissing the petition, and the respondent's release shall be in
accordance with other applicable provisions of law. If the court deter-
mines that probable cause has been established: (i) the court shall
order that the respondent be committed to a secure treatment facility
designated by the commissioner for care, treatment and control upon his
or her release; (ii) the court shall set a date for trial in accordance
with subdivision (a) of section 10.07 of this article; and (iii) the
respondent shall not be released pending the completion of such trial.
§ 10.07 Trial.
(a) Within sixty days after the court determines, pursuant to subdivi-
sion (k) of section 10.06 of this article, that there is probable cause
to believe that the respondent is a sex offender requiring civil manage-
ment, the court shall conduct a jury trial to determine whether the
respondent is a detained sex offender who suffers from a mental abnor-
mality. The trial shall be held before the same court that conducted the
probable cause hearing unless either the attorney general or counsel for
the respondent has moved for a change of venue and the motion has been
granted by the court.
(b) The provisions of article forty-one of the civil practice law and
rules shall apply to the formation and conduct of jury trial under this
section, except that the provisions of the following sections of the
criminal procedure law shall govern to the extent that the provisions of
article forty-one of the civil practice law and rules are inconsistent
therewith: sections 270.05, 270.10, 270.15, 270.20, subdivision one of
section 270.25, and subdivision one of section 270.35 (except for the
provisions thereof requiring consent for the replacement of a discharged
juror with an alternate). Each side shall have ten peremptory challenges
for the regular jurors and two for each alternate juror to be selected.
The right to a trial by jury may be waived by the respondent, and upon
such waiver, the court shall conduct a trial in accordance with article
forty-two of the civil practice law and rules, excluding provisions for
decision-making by referees.
(c) The provisions of subdivision (g) of section 10.08 of this article
and article forty-five of the civil practice law and rules shall be
applicable to trials conducted pursuant to this section. The jury may
hear evidence of the degree to which the respondent cooperated with the
psychiatric examination. If the court finds that the respondent refused
to submit to a psychiatric examination pursuant to this article, upon
request it shall so instruct the jury. The respondent's commission of a
sex offense shall be deemed established and shall not be relitigated at
the trial, whenever it is shown that: (i) the respondent stands
convicted of such offense; or (ii) the respondent previously has been
found not responsible by reason of mental disease or defect for the
commission of such offense or for an act or acts constituting such
offense. Whenever the petition alleges the respondent's commission of a
designated felony prior to the effective date of this article, the issue
of whether such offense was sexually motivated shall be determined by
the jury.
(d) The jury, or the court if a jury trial is waived, shall determine
by clear and convincing evidence whether the respondent is a detained
sex offender who suffers from a mental abnormality. The burden of proof
shall be on the attorney general. A determination, if made by the jury,
must be by unanimous verdict. In charging the jury, the court's
instructions shall include the admonishment that the jury may not find
solely on the basis of the respondent's commission of a sex offense that
the respondent is a detained sex offender who suffers from a mental
abnormality. In the case of a respondent committed pursuant to article
seven hundred thirty of the criminal procedure law for a sex offense,
the attorney general shall have the burden of proving by clear and
convincing evidence that the respondent did engage in the conduct
constituting such offense.
(e) If the jury unanimously, or the court if a jury trial is waived,
determines that the attorney general has not sustained his or her burden
of establishing that the respondent is a detained sex offender who
suffers from a mental abnormality, the court shall dismiss the petition
and the respondent shall be released if and as warranted by other
provisions of law. If the jury is unable to render a unanimous verdict,
the court shall continue any commitment order previously issued and
schedule a second trial to be held within sixty days in accordance with
the provisions of subdivision (a) of this section. If the jury in such
second trial is unable to render a unanimous verdict as to whether the
respondent is a detained sex offender who suffers from a mental abnor-
mality, the court shall dismiss the petition.
(f) If the jury, or the court if a jury trial is waived, determines
that the respondent is a detained sex offender who suffers from a mental
abnormality, then the court shall consider whether the respondent is a
dangerous sex offender requiring confinement or a sex offender requiring
strict and intensive supervision. The parties may offer additional
evidence, and the court shall hear argument, as to that issue. If the
court finds by clear and convincing evidence that the respondent has a
mental abnormality involving such a strong predisposition to commit sex
offenses, and such an inability to control behavior, that the respondent
is likely to be a danger to others and to commit sex offenses if not
confined to a secure treatment facility, then the court shall find the
respondent to be a dangerous sex offender requiring confinement. In such
case, the respondent shall be committed to a secure treatment facility
for care, treatment, and control until such time as he or she no longer
requires confinement. If the court does not find that the respondent is
a dangerous sex offender requiring confinement, then the court shall
make a finding of disposition that the respondent is a sex offender
requiring strict and intensive supervision, and the respondent shall be
subject to a regimen of strict and intensive supervision and treatment
in accordance with section 10.11 of this article. In making a finding
of disposition, the court shall consider the conditions that would be
imposed upon the respondent if subject to a regimen of strict and inten-
sive supervision, and all available information about the prospects for
the respondent's possible re-entry into the community.
§ 10.08 Procedures under this article.
(a) When a respondent submits to an examination pursuant to an order
issued in accordance with this article, any statement made by the
respondent for the purpose of the examination shall be kept confidential
in accordance with the provisions of section 33.13 of this chapter and
shall be inadmissible in evidence against him or her in any criminal
action or proceeding, provided that such statements may be used in
proceedings under this article.
(b) A psychiatric examiner chosen by the attorney general shall have
reasonable access to the respondent for the purpose of such examination,
as well as to the respondent's relevant medical, clinical, criminal or
other records and reports. A psychiatric examiner chosen by or appointed
on behalf of the respondent shall have reasonable access to the respond-
ent's relevant medical, clinical or criminal records and reports, except
that such psychiatric examiner shall not have access without court order
and for good cause shown to the name of, address of, or any other iden-
tifying information about the victim or victims. To the extent possible,
such identifying information should be redacted so as to provide the
examiner with access to the balance of the document. In conducting exam-
inations under this article, psychiatric examiners may employ any method
that is accepted by the medical profession for the examination of
persons alleged to be suffering from a mental disability or mental
abnormality.
(c) Notwithstanding any other provision of law, the commissioner, the
case review panel and the attorney general shall be entitled to request
from any agency, office, department or other entity of the state, and
such entity shall be authorized to provide upon such request, any and
all records and reports relating to the respondent's commission or
alleged commission of a sex offense, the institutional adjustment and
any treatment received by such respondent, and any medical, clinical or
other information relevant to a determination of whether the respondent
is a sex offender requiring civil management. Otherwise confidential
materials obtained for purposes of proceedings pursuant to this article
shall not be further disseminated or otherwise used except for such
purposes. Nothing in this article shall be construed to restrict any
right of a respondent to obtain his or her own records pursuant to other
provisions of law.
(d) The attorney general shall make records in his or her possession
and relevant to the respondent available for inspection or copying by
counsel for the respondent for purposes of hearing, trial, and appeal
provided, however, that counsel shall not have access to the name of,
address of, or any other identifying information about the victim or
victims, or to any investigative or other reports that relate to matters
beyond the scope of the proceedings and are confidential or privileged
from disclosure. To the extent possible, such identifying information
should be redacted so as to provide counsel with access to the balance
of the document.
(e) At any hearing or trial pursuant to the provisions of this arti-
cle, the court may change the venue of the trial to any county for good
cause, which may include considerations relating to the convenience of
the parties or witnesses or the condition of the respondent.
(e-1) Records or reports provided to the respondent in accordance with
this article shall be disclosed in the circumstances and in the same
manner as records and reports disclosed pursuant to the provisions of
section 33.16 of this chapter.
(f) Time periods specified by provisions of this article for actions
by state agencies are goals that the agencies shall try to meet, but
failure to act within such periods shall not invalidate later agency
action except as explicitly provided by the provision in question. The
court may extend any time period at the request, or on the consent, of
the respondent. No provision of this article shall be interpreted so as
to prevent a respondent, after opportunity to consult with counsel for
respondent, from consenting to the relief which could be sought by an
agency with jurisdiction by means of a court proceeding under this arti-
cle.
(g) In preparing for or conducting any hearing or trial pursuant to
the provisions of this article, and in preparing any petition under the
provisions of this article, the respondent shall have the right to have
counsel represent him or her, provided that the respondent shall not be
entitled to appointment of counsel prior to the time provided in section
10.06 of this article. The attorney general shall represent the state.
Any relevant written reports of psychiatric examiners shall be admissi-
ble, regardless of whether the author of the report is called to testi-
fy, so long as they are certified pursuant to subdivision (c) of rule
forty-five hundred eighteen of the civil practice law and rules, in any
proceeding or hearing held pursuant to subdivision (g) or (h) of section
10.06 of this article, paragraph two of subdivision (a), or paragraph
four of subdivision (d), or subdivision (e), (g) or (h) of section 10.11
of this article. In all other proceedings or hearings held pursuant to
this article, such admissibility shall require a showing of the author's
unavailability to testify, or other good cause. All plea minutes and
prior trial testimony from the underlying criminal proceeding, and
records from previous proceedings under this article, shall be admissi-
ble. Each witness, whether called by the attorney general or the
respondent, must, unless he or she would be authorized to give unsworn
evidence at a trial, testify under oath, and may be cross-examined. The
respondent may, as a matter of right, testify in his or her own behalf,
call and examine other witnesses, and produce other evidence in his or
her behalf. The respondent may not, however, cause a subpoena to be
served on the person against whom the sex offense was committed or
alleged to have been committed by the respondent, except upon order of
the court for good cause shown. Either party may request closure of the
courtroom, or sealing of papers, for good cause shown.
(h) The procedures and standards set forth in this article governing
the imposition of conditions upon the respondent are intended to be the
minimum required to provide for the protection of the public and treat-
ment of the respondent. Nothing in this article shall be construed to
require the availability or imposition of forms of treatment or super-
vision other than those for which this article specifically provides.
§ 10.09 Annual examinations and petitions for discharge.
(a) The commissioner shall provide the respondent and counsel for
respondent with an annual written notice of the right to petition the
court for discharge. The notice shall contain a form for the waiver of
the right to petition for discharge.
(b) The commissioner shall also assure that each respondent committed
under this article shall have an examination for evaluation of his or
her mental condition made at least once every year by a psychiatric
examiner who shall report to the commissioner his or her written find-
ings as to whether the respondent is currently a dangerous sex offender
requiring confinement. At such time, the respondent also shall have the
right to be evaluated by an independent psychiatric examiner. If the
respondent is financially unable to obtain an examiner, the court shall
appoint an examiner of the respondent's choice to be paid within the
limits prescribed by law. Following such evaluation, each psychiatric
examiner shall report his or her findings in writing to the commissioner
and to counsel for respondent. The commissioner shall review relevant
records and reports, along with the findings of the psychiatric examin-
ers, and shall make a determination in writing as to whether the
respondent is currently a dangerous sex offender requiring confinement.
(c) The commissioner shall annually forward the notice and waiver
form, along with a report including the commissioner's written determi-
nation and the findings of the psychiatric examination, to the supreme
or county court where the respondent is located.
(d) The court shall hold an evidentiary hearing as to retention of the
respondent within forty-five days if it appears from one of the annual
submissions to the court under subdivision (c) of this section (i) that
the respondent has petitioned, or has not affirmatively waived the right
to petition, for discharge, or (ii) that even if the respondent has
waived the right to petition, and the commissioner has determined that
the respondent remains a dangerous sex offender requiring confinement,
the court finds on the basis of the materials described in subdivision
(b) of this section that there is a substantial issue as to whether the
respondent remains a dangerous sex offender requiring confinement. At
an evidentiary hearing on that issue under this subdivision, the attor-
ney general shall have the burden of proof.
(e) If, at any time, the commissioner determines that the respondent
no longer is a dangerous sex offender requiring confinement, the commis-
sioner shall petition the court for discharge of the respondent or for
the imposition of a regimen of strict and intensive supervision and
treatment. The petition shall be served upon the attorney general and
the respondent, and filed in the supreme or county court where the
person is located. The court, upon review of the petition, shall either
order the requested relief or order that an evidentiary hearing be held.
(f) The respondent may at any time petition the court for discharge
and/or release to the community under a regimen of strict and intensive
supervision and treatment. Upon review of the respondent's petition,
other than in connection with annual reviews as described in subdivi-
sions (a), (b) and (d) of this section, the court may order that an
evidentiary hearing be held, or may deny an evidentiary hearing and deny
the petition upon a finding that the petition is frivolous or does not
provide sufficient basis for reexamination prior to the next annual
review. If the court orders an evidentiary hearing under this subdivi-
sion, the attorney general shall have the burden of proof as to whether
the respondent is currently a dangerous sex offender requiring confine-
ment.
(g) In connection with any evidentiary hearing held pursuant to subdi-
vision (d), (e), or (f) of this section, upon the request of either
party or upon its own motion, the court may direct the submission of
evidence, and may order a psychiatric evaluation if the court finds that
any available examination reports are not current or otherwise not
sufficient.
(h) At the conclusion of an evidentiary hearing, if the court finds by
clear and convincing evidence that the respondent is currently a danger-
ous sex offender requiring confinement, the court shall continue the
respondent's confinement. Otherwise the court, unless it finds that the
respondent no longer suffers from a mental abnormality, shall issue an
order providing for the discharge of the respondent to a regimen of
strict and intensive supervision and treatment pursuant to section 10.11
of this article.
§ 10.10 Treatment and confinement.
(a) If the respondent is found to be a dangerous sex offender requir-
ing confinement and committed to a secure treatment facility, that
facility shall provide care, treatment, and control of the respondent
until such time that a court discharges the respondent in accordance
with the provisions of this article.
(b) The commissioner shall, for persons committed pursuant to this
article, develop and implement a treatment plan in accordance with the
provisions of section 29.13 of this chapter. The commissioner shall give
due regard to any relevant standards, guidelines, and best practices
recommended by the office of sex offender management.
(c) The commissioner, or the commissioner of the department of correc-
tional services, or other government entity responsible for the care and
custody of respondents, shall be authorized to employ appropriate safety
and security measures, as he or she deems necessary to ensure the safety
of the public, during court proceedings and in the transport of persons
committed or undergoing any proceedings under this article. Such
commissioner shall provide training in the use of safe and appropriate
security interventions to employees responsible for transporting persons
under this article.
(d) The commissioner shall have the discretion to enter into agree-
ments with the department of correctional services for the provision of
security services relating to this article.
(e) Persons in the custody of the commissioner pursuant to this arti-
cle shall be kept separate from other persons in the care, custody and
control of the commissioner, and shall be segregated from such other
persons, provided, however, that persons committed or subject to
proceedings under this article need not be segregated from other sex
offenders committed or subject to proceedings under this article, arti-
cle nine of this title, or section four hundred two of the correction
law. If any dangerous sex offenders requiring confinement are committed
to a secure treatment facility located on the grounds of a correctional
facility, they shall be kept separate from persons in custody as a
result of criminal cases, and shall be segregated from such persons.
Occasional instances of supervised, incidental contact between persons
required by this subdivision to be segregated shall not be considered a
violation of such segregation requirements.
(f) In accordance with security procedures developed by the commis-
sioner, a person committed under this article may be granted an escorted
privilege by the director of the secure treatment facility in which he
or she is receiving care and treatment but only for the purposes of
allowing the person to receive medical or dental care or treatment not
available at the facility, to visit a family member who is seriously ill
or to attend the funeral of a family member. A person granted an
escorted privilege shall be under the constant supervision of one or
more facility employees who have been designated by the commissioner or
other specially trained personnel approved by the commissioner to
provide care and supervision of such persons.
(g) If a person is in the custody of the commissioner pursuant to an
order issued under this article, and such person escapes from custody,
notice of such escape shall be given as soon as the facility staff
learns of such escape, and shall include such information as will
adequately identify the escaped individual, any person or persons
believed to be in danger, and the nature of the danger. Such notice
shall be given by any means reasonably calculated to give prompt actual
notice, and shall be given to:
(1) the district attorney of the county where the person was
convicted, adjudicated, or charged; the attorney general; and counsel
for respondent or the mental hygiene legal service;
(2) the superintendent of the state police;
(3) the sheriff of the county where the escape occurred;
(4) the police department having jurisdiction of the area where the
escape occurred;
(5) any victim or victims who submitted the notification form
described in subdivision four of section 380.50 of the criminal proce-
dure law;
(6) any person the facility staff reasonably believes could be in
danger;
(7) any law enforcement agency and any person the facility staff
believes would be able to apprise such victim or victims that the person
escaped from the facility; and
(8) any other person the committing court may designate.
(h) The person may be apprehended, restrained, transported, and
returned to the facility from which he or she escaped by any police
officer or peace officer, and it shall be the duty of such officer to
assist any representative of the commissioner to take the person into
custody upon the request of such representative.
(i) The commissioner shall submit to the governor and the legislature
no later than December first of each year, a report on the implementa-
tion of this article. Such report shall include, but not be limited to,
the census of each existing treatment facility, the number of persons
reviewed by the case review teams for proceedings under this article,
the number of persons committed pursuant to this article, their crimes
of conviction, and projected future capacity needs.
§ 10.11 Regimen of strict and intensive supervision and treatment.
(a) (1) Before ordering the release of a person to a regimen of strict
and intensive supervision and treatment pursuant to this article, the
court shall order that the division of parole recommend supervision
requirements to the court. These supervision requirements, which shall
be developed in consultation with the commissioner, may include but need
not be limited to, electronic monitoring or global positioning satellite
tracking for an appropriate period of time, polygraph monitoring, spec-
ification of residence or type or residence, prohibition of contact with
identified past or potential victims, strict and intensive supervision
by a parole officer, and any other lawful and necessary conditions that
may be imposed by a court. In addition, after consultation with the
psychiatrist, psychologist or other professional primarily treating the
respondent, the commissioner shall recommend a specific course of treat-
ment. A copy of the recommended requirements for supervision and treat-
ment shall be given to the attorney general and the respondent and his
or her counsel a reasonable time before the court issues its written
order pursuant to this section.
(2) Before issuing its written order, the court shall afford the
parties an opportunity to be heard, and shall consider any additional
submissions by the respondent and the attorney general concerning the
proposed conditions of the regimen of strict and intensive supervision
and treatment. The court shall issue an order specifying the conditions
of the regimen of strict and intensive supervision and treatment, which
shall include specified supervision requirements and compliance with a
specified course of treatment. A written statement of the conditions of
the regimen of strict and intensive supervision and treatment shall be
given to the respondent and to his or her counsel, any designated
service providers or treating professionals, the commissioner, the
attorney general and the supervising parole officer. The court shall
require the division of parole to take appropriate actions to implement
the supervision plan and assure compliance with the conditions of the
regimen of strict and intensive supervision and treatment. A regimen of
strict and intensive supervision does not toll the running of any form
of supervision in criminal cases, including but not limited to post-re-
lease supervision and parole.
(b) (1) Persons ordered into a regimen of strict and intensive super-
vision and treatment pursuant to this article shall be subject to a
minimum of six face-to-face supervision contacts and six collateral
contacts per month. Such minimum contact requirements shall continue
unless subsequently modified by the court or the division of parole.
(2) Any agency, organization, professional or service provider desig-
nated to provide treatment to the person shall, unless otherwise
directed by the court, submit every four months to the court, the
commissioner, the attorney general and the supervising parole officer a
report describing the person's conduct while under a regimen of strict
and intensive supervision and treatment.
(c) An order for a regimen of strict and intensive supervision and
treatment places the person in the custody and control of the state
division of parole. A person ordered to undergo a regimen of strict and
intensive supervision and treatment pursuant to this article is subject
to lawful conditions set by the court and the division of parole.
(d) (1) A person's regimen of strict and intensive supervision and
treatment may be revoked if such a person violates a condition of strict
and intensive supervision. If a parole officer has reasonable cause to
believe that the person has violated a condition of the regimen of
strict and intensive supervision and treatment or, if there is an oral
or written evaluation or report by a treating professional indicating
that the person may be a dangerous sex offender requiring confinement, a
parole officer authorized in the same manner as provided in subparagraph
(i) of paragraph (a) of subdivision three of section two hundred fifty-
nine-i of the executive law may take the person into custody and trans-
port the person for lodging in a secure treatment facility or a local
correctional facility for an evaluation by a psychiatric examiner, which
evaluation shall be conducted within five days. A parole officer may
take the person, under custody, to a psychiatric center for prompt eval-
uation, and at the end of the examination, return the person to the
place of lodging. A parole officer, as authorized by this paragraph,
may direct a peace officer, acting pursuant to his or her special
duties, or a police officer who is a member of an authorized police
department or force or of a sheriff's department, to take the person
into custody and transport the person as provided in this paragraph. It
shall be the duty of such peace officer or police officer to take into
custody and transport any such person upon receiving such direction. The
division of parole shall promptly notify the attorney general and the
mental hygiene legal service, when a person is taken into custody pursu-
ant to this paragraph. No provision of this section shall preclude the
division of parole from proceeding with a revocation hearing as author-
ized by subdivision three of section two hundred fifty-nine-i of the
executive law.
(2) After the person is taken into custody for the evaluation, the
attorney general may file: (i) a petition for confinement pursuant to
paragraph four of this subdivision and/or (ii) a petition pursuant to
subdivision (e) of this section to modify the conditions of a regimen of
strict and intensive supervision and treatment. Either petition shall
be filed in the court that issued the order imposing the regimen of
strict and intensive supervision and treatment. The attorney general
shall seek to file the petition within five days after the person is
taken into custody for evaluation. If no petition is filed within that
time, the respondent shall be released immediately, subject to the terms
of the previous order imposing the regimen of strict and intensive
supervision, but failure to file a petition within such time shall not
affect the validity of such petition or any subsequent action.
(3) A petition filed under paragraph two of this subdivision shall be
served promptly on the respondent and the mental hygiene legal service.
The court shall appoint legal counsel in accordance with subdivision (c)
of section 10.06 of this article. Counsel for respondent shall be
provided with a copy of the written report, if any, of the psychiatric
examiner who conducted the evaluation pursuant to this section.
(4) A petition for confinement shall contain the parole officer's
sworn allegations demonstrating reasonable cause to believe that the
respondent violated a condition of his or her strict and intensive
supervision, and shall be accompanied by any written evaluations or
reports by a treating professional indicating that the respondent may be
a dangerous sex offender requiring confinement. If a petition is filed
within the five-day period seeking the respondent's confinement, then
the court shall promptly review the petition and, based on the allega-
tions in the petition and any accompanying papers, determine whether
there is probable cause to believe that the respondent is a dangerous
sex offender requiring confinement. Upon the finding of probable cause,
the respondent may be retained in a local correctional facility or a
secure treatment facility pending the conclusion of the proceeding. In
the absence of such a finding, the respondent shall be released, but the
court may impose revised conditions of supervision and treatment pending
completion of the hearing. Within thirty days after a petition for
confinement is filed under paragraph two of this subdivision, the court
shall conduct a hearing to determine whether the respondent is a danger-
ous sex offender requiring confinement. Any failure to commence the
hearing within the time period specified shall not result in the
dismissal of the petition and shall not affect the validity of the hear-
ing or the determination. The court shall make its determination of
whether the respondent is a dangerous sex offender requiring confinement
in accordance with the standards set forth in subdivision (f) of section
10.07 of this article. If the court finds that the attorney general has
not met the burden of showing by clear and convincing evidence that the
respondent is a dangerous sex offender requiring confinement, but finds
that the respondent continues to be a sex offender requiring strict and
intensive supervision, the court shall order the person to be released
under the previous order imposing a regimen of strict and intensive
supervision and treatment, unless it modifies the order imposing a regi-
men of strict and intensive supervision and treatment pursuant to subdi-
vision (f) of this section. If the court determines that the attorney
general has met the burden of showing by clear and convincing evidence
that the respondent is a dangerous sex offender requiring confinement,
the court shall order that the respondent be committed to a secure
treatment facility immediately. The respondent shall not be released
pending the completion of the hearing.
(e) If the attorney general files only a petition for modification
under paragraph two of subdivision (d) of this section, the respondent
shall be released but the court may impose revised conditions of super-
vision and treatment pending completion of the hearing. Within five days
after filing of the petition for modification, the court shall conduct a
hearing to determine whether the respondent's conditions of treatment
and supervision should be modified. The attorney general shall have the
burden of showing that the modifications sought are warranted, and the
court shall order such modifications to the extent that it finds that
the attorney general has met that burden.
(f) The court may modify or terminate the conditions of the regimen of
strict and intensive supervision and treatment on the petition of the
supervising parole officer, the commissioner or the attorney general.
Such petition shall be served on the respondent and the respondent's
counsel. A person subject to a regimen of strict and intensive super-
vision and treatment pursuant to this article may petition every two
years for modification or termination, commencing no sooner than two
years after the regimen of strict and intensive supervision and treat-
ment commenced, with service of such petition on the attorney general,
the division of parole, and the commissioner. Upon receipt of a petition
for modification or termination pursuant to this section, the court may
require the division of parole and the commissioner to provide a report
concerning the person's conduct while subject to a regimen of strict and
intensive supervision and treatment. If more than one petition is filed,
the petitions may be considered in a single hearing.
(g) Upon receipt of a petition for modification pursuant to this
section, the court may hold a hearing on such petition. The party seek-
ing modification shall have the burden of showing that those modifica-
tions are warranted, and the court shall order such modifications to the
extent that it finds that the party has met that burden.
(h) Upon receipt of a petition for termination pursuant to this
section, the court may hold a hearing on such petition. When the peti-
tion is filed by the respondent, the attorney general shall have the
burden of showing by clear and convincing evidence that the respondent
is currently a sex offender requiring civil management. If the court
finds that the attorney general has not sustained that burden, it shall
order the respondent's discharge from the regimen of strict and inten-
sive supervision and treatment. Otherwise the court shall continue the
regimen of strict and intensive supervision and treatment but may revise
conditions of supervision and treatment as warranted.
§ 10.13 Appeals.
(a) The attorney general may, in the appellate division of the supreme
court, seek a stay of any order under this article releasing a person
under this article.
(b) The attorney general may appeal as of right from an order entered
pursuant to subdivision (k) of section 10.06 of this article dismissing
the petition following a determination that probable cause to believe
that the respondent is a sex offender requiring civil management has not
been established. No appeal may be taken from an order entered pursuant
to subdivision (k) of section 10.06 of this article determining that
probable cause has been established to believe the respondent is a sex
offender requiring civil management. Both the respondent and the attor-
ney general may appeal from any final order entered pursuant to this
article. The provisions of articles fifty-five, fifty-six, and fifty-
seven of the civil practice law and rules shall govern appeals taken
from orders entered pursuant to this article.
(c) In connection with any appeal, a respondent who is or becomes
financially unable to obtain counsel shall have the right to have appel-
late counsel appointed on his or her behalf. Such counsel shall be
appointed by the court to which an appeal is taken. If possible, the
court shall appoint the mental hygiene legal service. In the event that
the court determines that the mental hygiene legal service cannot accept
appointment, the court shall appoint an attorney eligible for appoint-
ment pursuant to article eighteen-B of the county law, or an entity, if
any, that has contracted for the delivery of legal representation
services under subdivision (c) of section 10.15 of this article.
§ 10.15 Compensation, fees and expenses.
(a) Any compensation, fee or expense paid pursuant to the provisions
of this article and article eighteen-B of the county law shall be a
state charge payable on vouchers approved by the court which fixed the
same, after audit by and on the warrant of the comptroller. Any compen-
sation, fee or expense paid to such counsel so appointed shall be paid
out of funds appropriated to the administrative office for the courts.
Each claim for compensation and reimbursement shall be supported by a
sworn statement specifying the time expended, services rendered,
expenses incurred and reimbursement or compensation applied for or
received in the same case from any other source. The appropriate court
shall review and determine the reasonableness of the claims, including
the number of hours expended out of court by counsel and psychiatric
examiners. When a court appoints counsel pursuant to article eighteen-B
of the county law, such counsel shall be compensated in accordance with
the provisions of that article. Notwithstanding any other provision of
law, psychiatric examiners who are appointed by a court under this arti-
cle, and who perform such examinations other than as government employ-
ees, shall be compensated at an hourly rate to be set by the administra-
tive board of the judicial conference.
(b) Members of the case review panel established by subdivision (a) of
section 10.05 of this article shall be entitled to reimbursement for
expenses reasonably incurred for the performance of duties under this
article.
(c) The state may contract with entities for the provision of legal
representation services to respondents in proceedings under this arti-
cle, within the amounts appropriated therefor.
§ 10.17 Release of information authorized.
The commissioner is authorized to release information in accordance
with subparagraph (vii) of paragraph nine of subdivision (c) of section
33.13 of this chapter to appropriate persons and entities when necessary
to protect the public concerning a specific sex offender requiring civil
management under this article, and to release information in accordance
with subparagraph (viii) of paragraph nine of subdivision (c) of section
33.13 of this chapter to the attorney general and case review panel when
such persons or entities request such information in the exercise of
their statutory functions, powers, and duties under this article.
§ 3. The executive law is amended by adding a new section 837-r to
read as follows:
§ 837-r. Office of sex offender management. 1. Establishment of
office. There is hereby established within the division of criminal
justice services the office of sex offender management, hereinafter in
this section referred to as "the office."
2. Duties and responsibilities. The office, in consultation with the
commissioner of mental health, shall be responsible for policy matters
relating to sex offenders and the management of their behavior. Its
activities as to such matters shall include, but not be limited to:
(a) Studying issues relating to management of sex offender behavior in
consultation with experts, service providers and representative organ-
izations in the field of sex offender management;
(b) Serving as a clearinghouse for information and materials including
lists of treatment providers and other community resources for sex
offender management;
(c) Advising the governor and the legislature on the most effective
ways for state government to address issues of sex offender management;
(d) Coordinating and recommending sex offender management policy and
interagency initiatives including matters relating to risk assessment;
provision of treatment; supervision policy; the use of videoconferencing
and other tools to expedite hearings; the use of polygraphs, electronic
monitoring, and other supervisory tools; the sharing of information
among relevant agencies; residential issues; and other matters relating
to re-entry and integration into society;
(e) Developing recommendations as to standards, guidelines, best prac-
tices, and qualifications for sex offender assessment, treatment, and
supervision;
(f) Acting as an advocate for sex offense victims and programs and
coordinating activities of other agencies with related functions;
(g) Developing and implementing campaigns of public awareness, commu-
nity outreach, and sex offense prevention;
(h) Coordinating programs of training and education for law enforce-
ment and treatment providers, judges, attorneys, and other profes-
sionals; and
(i) Developing case management systems and other information technolo-
gy to support state activities in the management of sex offender behav-
ior.
3. Other state agencies shall provide cooperation and assistance to
the office so as to assist it in the effective performance of its
duties.
§ 4. The opening paragraph of subdivision (c) of section 33.13 of the
mental hygiene law, as amended by chapter 912 of the laws of 1984, is
amended to read as follows:
Such information about patients or clients reported to the offices,
including the identification of patients or clients, [and] clinical
records or clinical information tending to identify patients or clients,
and records and information concerning persons under consideration for
proceedings pursuant to article ten of this chapter, at office facili-
ties shall not be a public record and shall not be released by the
offices or its facilities to any person or agency outside of the offices
except as follows:
§ 5. Paragraph 9 of subdivision (c) of section 33.13 of the mental
hygiene law is amended by adding two new subparagraphs (vii) and (viii)
to read as follows:
(vii) appropriate persons and entities when necessary to protect the
public concerning a specific sex offender requiring civil management
under article ten of this chapter.
(viii) to the attorney general, case review panel, or psychiatric
examiners described in article ten of this chapter, when such persons or
entities request such information in the exercise of their statutory
functions, powers and duties under article ten of this chapter.
§ 6. Subdivision (c) of section 43.03 of the mental hygiene law, as
amended by chapter 855 of the laws of 1985, is amended to read as
follows:
(c) Patients receiving services while being held pursuant to order of
a criminal court, other than patients committed to the department pursu-
ant to section 330.20 of the criminal procedure law, or for examination
pursuant to an order of the family court shall not be liable to the
department for such services. Fees due the department for such services
shall be paid by the county in which such court is located except that
counties shall not be responsible for the cost of services rendered
patients committed to the department pursuant to section 330.20 of the
criminal procedure law or patients committed to the department pursuant
to article ten of this chapter.
§ 7. Subdivision 5 of section 45.01 of the mental hygiene law, as
amended by section 3 of part H of chapter 58 of the laws of 2005, is
amended to read as follows:
5. "Mental hygiene facility" means a facility as defined in subdivi-
sion six of section 1.03 of this chapter and facilities for the opera-
tion of which an operating certificate is required pursuant to article
sixteen or thirty-one of this chapter and including family care homes.
"Mental hygiene facility" also means a secure treatment facility as
defined by article ten of this chapter.
§ 8. Subdivision (a) of section 47.01 of the mental hygiene law, as
amended by chapter 97 of the laws of 1995, is amended to read as
follows:
(a) There shall be a mental hygiene legal service of the state in each
judicial department. The service shall provide legal assistance to
patients or residents of a facility as defined in section 1.03 of this
chapter, or any other place or facility which is required to have an
operating certificate pursuant to article sixteen or thirty-one of this
chapter, and to persons alleged to be in need of care and treatment in
such facilities or places, and to persons entitled to such legal assist-
ance as provided by article ten of this chapter. The head of such
service in each judicial department and such assistants and such staff
as may be necessary shall be appointed and may be removed by the presid-
ing justice of the appellate division of the judicial department.
Appointments and transfers to the service shall comply with the
provisions of the civil service law. Standards for qualifications of
the personnel in the service shall be established by the presiding
justice of the appellate division of the judicial department. The
presiding justice of the appellate division of the judicial department
shall promulgate such rules or regulations as may be necessary to effec-
tuate the purposes of this article.
§ 9. Subdivisions (d) and (e) of section 47.03 of the mental hygiene
law, subdivision (d) as amended by chapter 330 of the laws of 1993 and
subdivision (e) as added by chapter 789 of the laws of 1985 are amended
and a new subdivision (f) is added to read as follows:
(d) To be granted access at any and all times to any facility or place
or part thereof described in subdivision (a) of section 47.01 of this
article, and to all books, records and data pertaining to any such
facility or place deemed necessary for carrying out its functions,
powers and duties. The mental hygiene legal service may require from the
officers or employees of such facility or place any information deemed
necessary for the purpose of carrying out the service's functions,
powers and duties. Information, books, records or data which are confi-
dential and any limitations on the release thereof imposed by law upon
the party furnishing the information, books, records or data shall apply
to the service. Provided, however, whenever federal regulations
restrict, or as a condition of federal aid require that a facility
restrict the release of information contained in the clinical record of
a patient or client, or restrict disclosure of the identity of a patient
or access to that patient, to a greater extent than is allowed under
this section, the provisions of such federal law or federal regulation
shall be controlling; [and]
(e) To initiate and take any legal action deemed necessary to safe-
guard the right of any patient or resident to protection from abuse or
mistreatment, which may include investigation into any such allegations
of abuse or mistreatment of any such patient or resident[.]; and
(f) To provide legal services and assistance in accordance with arti-
cle ten of this chapter.
§ 10. Subdivision 6 of section 168-a of the correction law, as added
by chapter 192 of the laws of 1995, is amended to read as follows:
6. "Hospital" means: (a) a hospital as defined in subdivision two of
section four hundred of this chapter and applies to persons committed to
such hospital by order of commitment made pursuant to article sixteen of
this chapter; or (b) a secure treatment facility as defined in section
10.03 of the mental hygiene law and applies to persons committed to such
facility by an order made pursuant to article ten of the mental hygiene
law.
§ 11. Subdivision 3 of section 390.50 of the criminal procedure law,
as renumbered by chapter 310 of the laws of 1975, is amended to read as
follows:
3. Public agencies within this state. A probation department must make
available a copy of its pre-sentence report and any medical, psychiatric
or social agency report submitted to it in connection with its pre-sen-
tence investigation or its supervision of a defendant, to any court, or
to the probation department of any court, within this state that subse-
quently has jurisdiction over such defendant for the purpose of
pronouncing or reviewing sentence and to any state agency to which the
defendant is subsequently committed or certified or under whose care and
custody or jurisdiction the defendant subsequently is placed upon the
official request of such court or agency therefor. In any such case,
the court or agency receiving such material must retain it under the
same conditions of confidentiality as apply to the probation department
that made it available, except that an agency with jurisdiction as that
term is defined in subdivision (a) of section 10.03 of the mental
hygiene law shall make such material available to the commissioner of
mental health, attorney general, case review panel, or psychiatric exam-
iners described in article ten of the mental hygiene law when such
persons or entities request such material in the exercise of their stat-
utory functions, powers, and duties under article ten of the mental
hygiene law.
§ 12. Subdivisions 4 and 5 of section 380.50 of the criminal procedure
law, as added by chapter 1 of the laws of 1998, are amended to read as
follows:
4. Regardless of whether the victim requests to make a statement with
regard to the defendant's sentence, where the defendant is committed to
the custody of the department of correctional services upon a sentence
of imprisonment for conviction of a violent felony offense as defined in
section 70.02 of the penal law or a felony defined in article one
hundred twenty-five of such law, or a sex offense as defined in subdivi-
sion (p) of section 10.03 of the mental hygiene law, within sixty days
of the imposition of sentence the prosecutor shall provide the victim
with a form, prepared and distributed by the commissioner of the depart-
ment of correctional services, on which the victim may indicate a demand
to be informed of the escape, absconding, discharge, parole, conditional
release [or], release to post-release supervision, transfer to the
custody of the office of mental health pursuant to article ten of the
mental hygiene law, or release from confinement under article ten of the
mental hygiene law of the person so imprisoned. If the victim submits a
completed form to the prosecutor, it shall be the duty of the prosecutor
to mail promptly such form to the department of correctional services.
5. Following the receipt of such form from the prosecutor, it shall be
the duty of the department of correctional services or, where the person
is committed to the custody of the office of mental health, at the time
such person is discharged, paroled, conditionally released [or],
released to post-release supervision, or released from confinement under
article ten of the mental hygiene law, to notify the victim of such
occurrence by certified mail directed to the address provided by the
victim. In the event such person escapes or absconds from a facility
under the jurisdiction of the department of correctional services, it
shall be the duty of such department to notify immediately the victim of
such occurrence at the most current address or telephone number provided
by the victim in the most reasonable and expedient possible manner. In
the event such escapee or absconder is subsequently taken into custody
by the department of correctional services, it shall be the duty of such
department to notify the victim of such occurrence by certified mail
directed to the address provided by the victim within forty-eight hours
of regaining such custody. In the case of a person who escapes or
absconds from confinement under article ten of the mental hygiene law,
the office of mental health shall notify the victim or victims in
accordance with the procedures set forth in subdivision (g) of section
10.10 of the mental hygiene law. In no case shall the state be held
liable for failure to provide any notice required by this subdivision.
§ 13. Subdivision (a) of section 190.71 of the criminal procedure law,
as amended by chapter 264 of the laws of 2003, is amended to read as
follows:
(a) Except as provided in subdivision six of section 200.20 of this
chapter, a grand jury may not indict (i) a person thirteen years of age
for any conduct or crime other than conduct constituting a crime defined
in subdivisions one and two of section 125.25 (murder in the second
degree) or such conduct as a sexually motivated felony, where authorized
pursuant to section 130.91 of the penal law; (ii) a person fourteen or
fifteen years of age for any conduct or crime other than conduct consti-
tuting a crime defined in subdivisions one and two of section 125.25
(murder in the second degree) and in subdivision three of such section
provided that the underlying crime for the murder charge is one for
which such person is criminally responsible; 135.25 (kidnapping in the
first degree); 150.20 (arson in the first degree); subdivisions one and
two of section 120.10 (assault in the first degree); 125.20 (manslaught-
er in the first degree); subdivisions one and two of section 130.35
(rape in the first degree); subdivisions one and two of section 130.50
(criminal sexual act in the first degree); 130.70 (aggravated sexual
abuse in the first degree); 140.30 (burglary in the first degree);
subdivision one of section 140.25 (burglary in the second degree);
150.15 (arson in the second degree); 160.15 (robbery in the first
degree); subdivision two of section 160.10 (robbery in the second
degree) of the penal law; subdivision four of section 265.02 of the
penal law, where such firearm is possessed on school grounds, as that
phrase is defined in subdivision fourteen of section 220.00 of the penal
law; or section 265.03 of the penal law, where such machine gun or such
firearm is possessed on school grounds, as that phrase is defined in
subdivision fourteen of section 220.00 of the penal law; or defined in
the penal law as an attempt to commit murder in the second degree or
kidnapping in the first degree, or such conduct as a sexually motivated
felony, where authorized pursuant to section 130.91 of the penal law.
§ 14. Section 720.35 of the criminal procedure law is amended by
adding a new subdivision 4 to read as follows:
4. Notwithstanding subdivision two of this section, whenever a person
is adjudicated a youthful offender and the conviction that was vacated
and replaced by the youthful offender finding was for a sex offense as
that term is defined in article ten of the mental hygiene law, all
records pertaining to the youthful offender adjudication shall be
included in those records and reports that may be obtained by the
commissioner of mental health or the commissioner of mental retardation
and developmental disabilities, as appropriate; the case review panel;
and the attorney general pursuant to section 10.05 of the mental hygiene
law.
§ 15. Section 725.15 of the criminal procedure law, as added by chap-
ter 481 of the laws of 1978, is amended to read as follows:
§ 725.15 Sealing of records.
Except where specifically required or permitted by statute or upon
specific authorization of the court that directed removal of an action
to the family court all official records and papers of the action up to
and including the order of removal, whether on file with the court, a
police agency or the division of criminal justice services, are confi-
dential and must not be made available to any person or public or
private agency, provided however that availability of copies of any such
records and papers on file with the family court shall be governed by
provisions that apply to family court records, and further provided that
all official records and papers of the action shall be included in those
records and reports that may be obtained upon request by the commission-
er of mental health or commissioner of mental retardation and develop-
mental disabilities, as appropriate; the case review panel; and the
attorney general pursuant to section 10.05 of the mental hygiene law.
§ 16. Section 508 of the executive law is amended by adding a new
subdivision 9 to read as follows:
9. Notwithstanding any provision of law, including section five
hundred one-c of this article, the office of children and family
services shall make records pertaining to a person convicted of a sex
offense as defined in subdivision (p) of section 10.03 of the mental
hygiene law available upon request to the commissioner of mental health
or the commissioner of mental retardation and developmental disabili-
ties, as appropriate; a case review panel; and the attorney general; in
accordance with the provisions of article ten of the mental hygiene law.
§ 17. Section 380.1 of the family court act is amended by adding a new
subdivision 4 to read as follows:
4. Notwithstanding any other provision of law, where a finding of
juvenile delinquency has been entered, upon request, the records
pertaining to such case shall be made available to the commissioner of
mental health or the commissioner of mental retardation and develop-
mental disabilities, as appropriate; the case review panel; and the
attorney general pursuant to section 10.05 of the mental hygiene law.
§ 18. Section 35 of the judiciary law is amended by adding a new
subdivision 4-a to read as follows:
4-a. In any proceeding under article ten of the mental hygiene law,
the court which ordered the hearing may appoint no more than two psychi-
atrists, certified psychologists or physicians to examine and testify at
the hearing upon the condition of such person. A psychiatrist, psychol-
ogist or physician so appointed shall, upon completion of his or her
services, receive reimbursement for expenses reasonably incurred and
reasonable compensation for such services, to be fixed by the court in
accordance with subdivision (a) of section 10.15 of the mental hygiene
law.
§ 19. Subdivision 2 of section 259-a of the executive law, as amended
by section 6 of part E of chapter 62 of the laws of 2003, is amended to
read as follows:
2. The division shall cause complete records to be kept of every
person on presumptive release, parole, conditional release or post-re-
lease supervision. Such records shall contain the aliases and photograph
of each such person, and the other information referred to in subdivi-
sion one of this section, as well as all reports of parole officers in
relation to such persons. Such records shall be maintained by the divi-
sion and may be made available as deemed appropriate by the chairman for
use by the department of correctional services, the commissioner of
mental health, the commissioner of mental retardation and developmental
disabilities, the case review panel, and the attorney general pursuant
to section 10.05 of the mental hygiene law, the division, and the board
of parole. Such records shall be organized in accordance with methods of
filing and indexing designed to insure the immediate availability of
complete information about such persons.
§ 20. Section 259-a of the executive law is amended by adding a new
subdivision 9-a to read as follows:
9-a. The division shall supervise all persons who are subject to a
regimen of strict and intensive supervision and treatment pursuant to
article ten of the mental hygiene law. The board of parole shall issue
and periodically update rules and regulations concerning the supervision
of such persons in consultation with the office of sex offender manage-
ment in the division of criminal justice services.
§ 21. Section 5 of the correction law is amended by adding a new
subdivision 6 to read as follows:
6. The commissioner shall have the discretion to enter into agreements
with the commissioner of mental health for the provision of security
services relating to article ten of the mental hygiene law.
§ 22. Paragraph (a) of subdivision 2 of section 168-a of the
correction law, as amended by chapter 69 of the laws of 2003 and subpar-
agraph (i) as separately amended by chapters 91 and 320 of the laws of
2006, is amended to read as follows:
(a) (i) a conviction of or a conviction for an attempt to commit any
of the provisions of sections 130.20, 130.25, 130.30, 130.40, 130.45,
130.60, 250.50, 255.25, 255.26 and 255.27 or article two hundred sixty-
three of the penal law, or section 135.05, 135.10, 135.20 or 135.25 of
such law relating to kidnapping offenses, provided the victim of such
kidnapping or related offense is less than seventeen years old and the
offender is not the parent of the victim, or section 230.04, where the
person patronized is in fact less than seventeen years of age, 230.05 or
230.06, or subdivision two of section 230.30, or section 230.32 or
230.33 of the penal law, or (ii) a conviction of or a conviction for an
attempt to commit any of the provisions of section 235.22 of the penal
law, or (iii) a conviction of or a conviction for an attempt to commit
any provisions of the foregoing sections committed or attempted as a
hate crime defined in section 485.05 of the penal law or as a crime of
terrorism defined in section 490.25 of such law or as a sexually moti-
vated felony defined in section 130.91 of such law; or
§ 23. Section 402 of the correction law is amended by adding a new
subdivision 13 to read as follows:
13. Notwithstanding any provision of law to the contrary, when an
inmate is being examined in anticipation of his or her conditional
release, release to parole supervision, or when his or her sentence to a
term of imprisonment expires, the provisions of subdivision one of
section four hundred four of this article shall be applicable and such
commitment shall be effectuated in accordance with the provisions of
article nine or ten of the mental hygiene law, as appropriate.
§ 24. Subdivision 1 of section 404 of the correction law, as added by
chapter 766 of the laws of 1976, is amended to read as follows:
1. Whenever an inmate committed to a hospital in the department of
mental hygiene or whenever an inmate is examined in anticipation of his
or her conditional release, release to parole supervision, or when his
or her sentence to a term of imprisonment expires and such inmate shall
continue to be mentally ill and in need of care and treatment at the
time of his or her conditional release, release to parole supervision,
or when his or her sentence to a term of imprisonment expires, the
director of the hospital or the superintendent of a correctional facili-
ty may apply for the person's admission to a hospital for the care and
treatment of the mentally ill in the department of mental hygiene [as
provided in] pursuant to article nine of the mental hygiene law, or
alternatively, the commissioner may apply for the person's admission to
a secure treatment facility pursuant to article ten of the mental
hygiene law.
§ 24-a. Paragraph (e) of subdivision 1 of section 500-a of the
correction law, as amended by chapter 541 of the laws of 1994, is
amended and a new paragraph (f) is added to read as follows:
(e) For the confinement of persons convicted of any offense and
sentenced to imprisonment therein, or awaiting transportation under
sentence to imprisonment in another county[.];
(f) For the confinement of persons during any proceedings pursuant to
article ten of the mental hygiene law.
§ 25. The correction law is amended by adding a new section 622 to
read as follows:
§ 622. Sex offender treatment program. 1. The department shall make
available a sex offender treatment program for those inmates who are
serving sentences for felony sex offenses, or for other offenses defined
in subdivision (p) of section 10.03 of the mental hygiene law, and are
identified as having a need for such program in accordance with sections
eight hundred three and eight hundred five of this chapter. In develop-
ing the treatment program, the department shall give due regard to stan-
dards, guidelines, best practices, and qualifications recommended by the
office of sex offender management. The department shall make such treat-
ment programs available sufficiently in advance of the time of the
inmate's consideration by the case review team, pursuant to section
10.05 of the mental hygiene law, so as to allow the inmate to complete
the treatment program prior to that time.
2. The primary purpose of the program shall be to reduce the likeli-
hood of reoffending by assisting such offenders to control their chain
of behaviors that lead to sexual offending. The length of participation
for each inmate to achieve successful completion shall be dependent upon
the initial assessment of the inmate's specific needs and the degree of
progress made by the inmate as a participant but shall not be less than
six months.
3. The department's sex offender treatment program shall include resi-
dential programs, which shall require that at each correctional facility
where the residential program is provided, inmate participants shall be
housed within the same housing area in order to provide clinically
appropriate treatment, and to provide a more structured and controlled
setting.
4. Each residential program shall be staffed with a licensed psychol-
ogist who shall provide clinical supervision to the treatment staff,
review, approve and modify treatment plans as appropriate for individual
inmates, provide clinical assessments for participating inmates, observe
and participate in group sessions and make treatment recommendations.
Each residential program shall also be staffed with a licensed clinical
social worker or other mental health professional who shall be know-
ledgeable about the administration of testing instruments that are
designed to measure the degree of a sex offender's psychopathy and his
or her program needs. The assigned licensed psychologist shall also be
knowledgeable about the application of such testing instruments.
5. Any inmate committed to the custody of the department on or after
the effective date of this section for a felony sex offense, or for any
of the other offenses listed in subdivision (p) of section 10.03 of the
mental hygiene law, shall, as soon as practicable, be initially assessed
by staff of the office of mental health who shall be knowledgeable
regarding the diagnosis, treatment, assessment or evaluation of sex
offenders. The assessment shall include, but not be limited to, the
determination of the degree to which the inmate presents a risk of
violent sexual recidivism and his or her need for sex offender treatment
while in prison.
6. Staff of the office of mental health and the office of mental
retardation and developmental disabilities may be consulted about the
inmate's treatment needs and may assist in providing any additional
treatment services determined to be clinically appropriate to address
the inmate's underlying mental abnormality or disorder. Such treatment
services shall be provided using professionally accepted treatment
protocols.
§ 26. The mental hygiene law is amended by adding a new section 7.18
to read as follows:
§ 7.18 Secure treatment facilities in the office.
(a) There shall be in the office secure treatment facilities, as
defined in subdivision (o) of section 10.03 of this title, as designated
by the commissioner for the care and treatment of dangerous sex offen-
ders requiring confinement, as described in article ten of this title.
(b) Such secure treatment facilities may be created on the former
grounds of hospitals operated by the office, but shall be considered
separate and distinct facilities and shall not be considered or defined
as hospitals.
§ 27. Paragraph 4 of subdivision (b) of section 9.27 of the mental
hygiene law, as amended by chapter 343 of the laws of 1985, is amended
to read as follows:
4. an officer of any public or well recognized charitable institution
or agency or home, including but not limited to the superintendent of a
correctional facility, as such term is defined in paragraph (a) of
subdivision four of section two of the correction law, in whose institu-
tion the person alleged to be mentally ill resides.
§ 28. Paragraph 4 of subdivision (b) of section 15.27 of the mental
hygiene law, such section as renumbered by chapter 978 of the laws of
1977, is amended to read as follows:
4. an officer of any well recognized charitable institution or agency
or home including but not limited to the superintendent of a correction-
al facility, as such term is defined in paragraph (a) of subdivision
four of section two of the correction law, in whose institution the
person alleged to be mentally retarded resides.
§ 29. The penal law is amended by adding two new sections 130.91 and
130.92 to read as follows:
§ 130.91 Sexually motivated felony.
1. A person commits a sexually motivated felony when he or she commits
a specified offense for the purpose, in whole or substantial part, of
his or her own direct sexual gratification.
2. A "specified offense" is a felony offense defined by any of the
following provisions of this chapter: assault in the second degree as
defined in section 120.05, assault in the first degree as defined in
section 120.10, gang assault in the second degree as defined in section
120.06, gang assault in the first degree as defined in section 120.07,
stalking in the first degree as defined in section 120.60, manslaughter
in the second degree as defined in subdivision one of section 125.15,
manslaughter in the first degree as defined in section 125.20, murder in
the second degree as defined in section 125.25, aggravated murder as
defined in section 125.26, murder in the first degree as defined in
section 125.27, kidnapping in the second degree as defined in section
135.20, kidnapping in the first degree as defined in section 135.25,
burglary in the third degree as defined in section 140.20, burglary in
the second degree as defined in section 140.25, burglary in the first
degree as defined in section 140.30, arson in the second degree as
defined in section 150.15, arson in the first degree as defined in
section 150.20, robbery in the third degree as defined in section
160.05, robbery in the second degree as defined in section 160.10,
robbery in the first degree as defined in section 160.15, promoting
prostitution in the second degree as defined in section 230.30, promot-
ing prostitution in the first degree as defined in section 230.32,
compelling prostitution as defined in section 230.33, disseminating
indecent material to minors in the first degree as defined in section
235.22, use of a child in a sexual performance as defined in section
263.05, promoting an obscene sexual performance by a child as defined in
section 263.10, promoting a sexual performance by a child as defined in
section 263.15, or any felony attempt or conspiracy to commit any of the
foregoing offenses.
§ 130.92 Sentencing.
1. When a person is convicted of a sexually motivated felony pursuant
to this article, and the specified felony is a violent felony offense,
as defined in section 70.02 of this chapter, the sexually motivated
felony shall be deemed a violent felony offense.
2. When a person is convicted of a sexually motivated felony pursuant
to this article, the sexually motivated felony shall be deemed to be the
same offense level as the specified offense the defendant committed.
3. Persons convicted of a sexually motivated felony as defined in
section 130.91 of this article, must be sentenced in accordance with the
provisions of section 70.80 of this chapter.
§ 30. The penal law is amended by adding a new section 70.80 to read
as follows:
§ 70.80 Sentences of imprisonment for conviction of a felony sex
offense.
1. Definitions.
(a) For the purposes of this section, a "felony sex offense" means a
conviction of any felony defined in article one hundred thirty of this
chapter, including a sexually motivated felony, or patronizing a prosti-
tute in the first degree as defined in section 230.06 of this chapter,
incest in the second degree as defined in section 255.26 of this chap-
ter, or incest in the first degree as defined in section 255.27 of this
chapter, or a felony attempt or conspiracy to commit any of the above.
(b) A felony sex offense shall be deemed a "violent felony sex
offense" if it is for an offense defined as a violent felony offense in
section 70.02 of this article, or for a sexually motivated felony as
defined in section 130.91 of this chapter where the specified offense is
a violent felony offense as defined in section 70.02 of this article.
(c) For the purposes of this section, a "predicate felony sex offen-
der" means a person who stands convicted of any felony sex offense as
defined in paragraph (a) of this subdivision, other than a class A-I
felony, after having previously been subjected to one or more predicate
felony convictions as defined in subdivision one of section 70.06 or
subdivision one of section 70.04 of this article.
(d) For purposes of this section, a "violent felony offense" is any
felony defined in subdivision one of section 70.02 of this article, and
a "non-violent felony offense" is any felony not defined therein.
2. In imposing a sentence within the authorized statutory range for
any felony sex offense, the court may consider all relevant factors set
forth in section 1.05 of this chapter, and in particular, may consider
the defendant's criminal history, if any, including any history of sex
offenses; any mental illness or mental abnormality from which the
defendant may suffer; the defendant's ability or inability to control
his sexual behavior; and, if the defendant has difficulty controlling
such behavior, the extent to which that difficulty may pose a threat to
society.
3. Except as provided by subdivision four, five, six, seven or eight
of this section, or when a defendant is being sentenced for a conviction
of the class A-II felonies of predatory sexual assault and predatory
sexual assault against a child as defined in sections 130.95 and 130.96
of this chapter, or for any class A-I sexually motivated felony for
which a life sentence or a life without parole sentence must be imposed,
a sentence imposed upon a defendant convicted of a felony sex offense
shall be a determinate sentence. The determinate sentence shall be
imposed by the court in whole or half years, and shall include as a part
thereof a period of post-release supervision in accordance with subdivi-
sion two-a of section 70.45 of this article. Persons eligible for
sentencing under section 70.07 of this article governing second child
sexual assault felonies shall be sentenced under such section and para-
graph (j) of subdivision two-a of section 70.45 of this article.
4. (a) Sentences of imprisonment for felony sex offenses. Except as
provided in subdivision five, six, seven, or eight of this section, the
term of the determinate sentence must be fixed by the court as follows:
(i) for a class B felony, the term must be at least five years and
must not exceed twenty-five years;
(ii) for a class C felony, the term must be at least three and one-
half years and must not exceed fifteen years;
(iii) for a class D felony, the term must be at least two years and
must not exceed seven years; and
(iv) for a class E felony, the term must be at least one and one-half
years and must not exceed four years.
(b) Probation. The court may sentence a defendant convicted of a class
D or class E felony sex offense to probation in accordance with the
provisions of section 65.00 of this title.
(c) Alternative definite sentences for class D and class E felony sex
offenses. If the court, having regard to the nature and circumstances of
the crime and to the history and character of the defendant, is of the
opinion that a sentence of imprisonment is necessary but that it would
be unduly harsh to impose a determinate sentence upon a person convicted
of a class D or class E felony sex offense, the court may impose a defi-
nite sentence of imprisonment and fix a term of one year or less.
5. Sentence of imprisonment for a predicate felony sex offender. (a)
Applicability. This subdivision shall apply to a predicate felony sex
offender who stands convicted of a non-violent felony sex offense and
who was previously convicted of one or more felonies.
(b) Non-violent predicate felony offense. When the court has found,
pursuant to the provisions of the criminal procedure law, that a person
is a predicate felony sex offender, and the person's predicate
conviction was for a non-violent felony offense, the court must impose a
determinate sentence of imprisonment, the term of which must be fixed by
the court as follows:
(i) for a class B felony, the term must be at least eight years and
must not exceed twenty-five years;
(ii) for a class C felony, the term must be at least five years and
must not exceed fifteen years;
(iii) for a class D felony, the term must be at least three years and
must not exceed seven years; and
(iv) for a class E felony, the term must be at least two years and
must not exceed four years.
(c) Violent predicate felony offense. When the court has found, pursu-
ant to the provisions of the criminal procedure law, that a person is a
predicate felony sex offender, and the person's predicate conviction was
for a violent felony offense, the court must impose a determinate
sentence of imprisonment, the term of which must be fixed by the court
as follows:
(i) for a class B felony, the term must be at least nine years and
must not exceed twenty-five years;
(ii) for a class C felony, the term must be at least six years and
must not exceed fifteen years;
(iii) for a class D felony, the term must be at least four years and
must not exceed seven years; and
(iv) for a class E felony, the term must be at least two and one-half
years and must not exceed four years.
(d) A defendant who stands convicted of a non-violent felony sex
offense, other than a class A-I or class A-II felony, who is adjudicated
a persistent felony offender under section 70.10 of this article, shall
be sentenced pursuant to the provisions of section 70.10 or pursuant to
this subdivision.
6. Sentence of imprisonment for a violent felony sex offense. Except
as provided in subdivisions seven and eight of this section, a defendant
who stands convicted of a violent felony sex offense must be sentenced
pursuant to the provisions of section 70.02, section 70.04, subdivision
six of section 70.06, section 70.08, or section 70.10 of this article,
as applicable.
7. Sentence for a class A felony sex offense. When a person stands
convicted of a sexually motivated felony pursuant to section 130.91 of
this chapter and the specified offense is a class A felony, the court
must sentence the defendant in accordance with the provisions of:
(a) section 60.06 of this chapter and section 70.00 of this article,
as applicable, if such offense is a class A-I felony; and
(b) section 70.00, 70.06 or 70.08 of this article, as applicable, if
such offense is a class A-II felony.
8. Whenever a juvenile offender stands convicted of a felony sex
offense, he or she must be sentenced pursuant to the provisions of
sections 60.10 and 70.05 of this chapter.
9. Every determinate sentence for a felony sex offense, as defined in
paragraph (a) of subdivision one of this section, imposed pursuant to
any section of this article, shall include as a part thereof a period of
post-release supervision in accordance with subdivision two-a of section
70.45 of this article.
§ 31. Section 200.50 of the criminal procedure law, as amended by
chapter 467 of the laws of 1974, subdivision 2 as amended by chapter 481
of the laws of 1978, subdivisions 4 and 7 as amended by chapter 300 of
the laws of 2001, and subdivision 8 as amended by chapter 209 of the
laws of 1990, is amended to read as follows:
§ 200.50 Indictment; form and content.
An indictment must contain:
1. The name of the superior court in which it is filed; and
2. The title of the action and, where the defendant is a juvenile
offender, a statement in the title that the defendant is charged as a
juvenile offender; and
3. A separate accusation or count addressed to each offense charged,
if there be more than one; and
4. A statement in each count that the grand jury, or, where the accu-
satory instrument is a superior court information, the district attor-
ney, accuses the defendant or defendants of a designated offense,
provided that in any prosecution under article four hundred eighty-five
of the penal law, the designated offense shall be the specified offense,
as defined in subdivision three of section 485.05 of the penal law,
followed by the phrase "as a hate crime", and provided further that in
any prosecution under section 490.25 of the penal law, the designated
offense shall be the specified offense, as defined in subdivision three
of section 490.05 of the penal law, followed by the phrase "as a crime
of terrorism"; and provided further that in any prosecution under
section 130.91 of the penal law, the designated offense shall be the
specified offense, as defined in subdivision two of section 130.91 of
the penal law, followed by the phrase "as a sexually motivated felony";
and
5. A statement in each count that the offense charged therein was
committed in a designated county; and
6. A statement in each count that the offense charged therein was
committed on, or on or about, a designated date, or during a designated
period of time; and
7. A plain and concise factual statement in each count which, without
allegations of an evidentiary nature,
(a) asserts facts supporting every element of the offense charged and
the defendant's or defendants' commission thereof with sufficient preci-
sion to clearly apprise the defendant or defendants of the conduct which
is the subject of the accusation; and
(b) in the case of any armed felony, as defined in subdivision forty-
one of section 1.20, states that such offense is an armed felony and
specifies the particular implement the defendant or defendants
possessed, were armed with, used or displayed or, in the case of an
implement displayed, specifies what the implement appeared to be; and
(c) in the case of any hate crime, as defined in section 485.05 of the
penal law, specifies, as applicable, that the defendant or defendants
intentionally selected the person against whom the offense was committed
or intended to be committed; or intentionally committed the act or acts
constituting the offense, in whole or in substantial part because of a
belief or perception regarding the race, color, national origin, ances-
try, gender, religion, religious practice, age, disability or sexual
orientation of a person; and
(d) in the case of a crime of terrorism, as defined in section 490.25
of the penal law, specifies, as applicable, that the defendant or
defendants acted with intent to intimidate or coerce a civilian popu-
lation, influence the policy of a unit of government by intimidation or
coercion, or affect the conduct of a unit of government by murder,
assassination or kidnapping; and
(e) in the case of a sexually motivated felony, as defined in section
130.91 of the penal law, asserts facts supporting the allegation that
the offense was sexually motivated; and
8. The signature of the foreman or acting foreman of the grand jury,
except where the indictment has been ordered reduced pursuant to subdi-
vision one-a of section 210.20 of this chapter or the accusatory instru-
ment is a superior court information; and
9. The signature of the district attorney.
§ 32. Paragraphs (c) and (d) of subdivision 1 of section 70.02 of the
penal law, paragraph (c) as amended by chapter 110 of the laws of 2006,
and paragraph (d) as separately amended by chapters 764 and 765 of the
laws of 2005, are amended to read as follows:
(c) Class D violent felony offenses: an attempt to commit any of the
class C felonies set forth in paragraph (b); reckless assault of a child
as defined in section 120.02, assault in the second degree as defined in
section 120.05, menacing a police officer or peace officer as defined in
section 120.18, stalking in the first degree, as defined in subdivision
one of section 120.60, rape in the second degree as defined in section
130.30, criminal sexual act in the second degree as defined in section
130.45, sexual abuse in the first degree as defined in section 130.65,
course of sexual conduct against a child in the second degree as defined
in section 130.80, aggravated sexual abuse in the third degree as
defined in section 130.66, facilitating a sex offense with a controlled
substance as defined in section 130.90, criminal possession of a weapon
in the third degree as defined in subdivision [four,] five, six, seven
or eight of section 265.02, criminal sale of a firearm in the third
degree as defined in section 265.11, intimidating a victim or witness in
the second degree as defined in section 215.16, soliciting or providing
support for an act of terrorism in the second degree as defined in
section 490.10, and making a terroristic threat as defined in section
490.20, falsely reporting an incident in the first degree as defined in
section 240.60, placing a false bomb or hazardous substance in the first
degree as defined in section 240.62, placing a false bomb or hazardous
substance in a sports stadium or arena, mass transportation facility or
enclosed shopping mall as defined in section 240.63, and aggravated
unpermitted use of indoor pyrotechnics in the first degree as defined in
section 405.18.
(d) Class E violent felony offenses: an attempt to commit any of the
felonies of criminal possession of a weapon in the third degree as
defined in subdivision [four,] five, six, seven or eight of section
265.02 as a lesser included offense of that section as defined in
section 220.20 of the criminal procedure law, persistent sexual abuse as
defined in section 130.53, aggravated sexual abuse in the fourth degree
as defined in section 130.65-a, falsely reporting an incident in the
second degree as defined in section 240.55 and placing a false bomb or
hazardous substance in the second degree as defined in section 240.61.
§ 33. Subdivisions 1 and 2 of section 70.45 of the penal law, subdivi-
sion 1 as added by chapter 1 of the laws of 1998 and subdivision 2 as
amended by chapter 738 of the laws of 2004, are amended and two new
subdivisions 1-a and 2-a are added to read as follows:
1. In general. Each determinate sentence also includes, as a part
thereof, an additional period of post-release supervision. Such period
shall commence as provided in subdivision five of this section and a
violation of any condition of supervision occurring at any time during
such period of post-release supervision shall subject the defendant to a
further period of imprisonment of at least six months and up to the
balance of the remaining period of post-release supervision, not to
exceed five years; provided, however, that a defendant serving a term of
post-release supervision for a conviction of a felony sex offense, as
defined in section 70.80 of this article, may be subject to a further
period of imprisonment up to the balance of the remaining period of
post-release supervision. Such maximum limits shall not preclude a
longer period of further imprisonment for a violation where the defend-
ant is subject to indeterminate and determinate sentences.
1-a. When, following a final hearing, a time assessment has been
imposed upon a person convicted of a felony sex offense who owes three
years or more on a period of post-release supervision, imposed pursuant
to subdivision two-a of this section, such defendant, after serving
three years of the time assessment, shall be reviewed by the board of
parole and may be re-released to post-release supervision only upon a
determination by the board of parole made in accordance with subdivision
two of section two hundred fifty-nine-i of the executive law. If re-re-
lease is not granted, the board shall specify a date not more than twen-
ty-four months from such determination for reconsideration, and the
procedures to be followed upon reconsideration shall be the same. If a
time assessment of less than three years is imposed upon such a defend-
ant, the defendant shall be released upon the expiration of such time
assessment, unless he or she is subject to further imprisonment or
confinement under any provision of law.
2. Period of post-release supervision for other than felony sex
offenses. The period of post-release supervision for a determinate
sentence, other than a determinate sentence imposed for a felony sex
offense as defined in paragraph (a) of subdivision one of section 70.80
of this article, shall be five years except that:
(a) such period shall be one year whenever a determinate sentence of
imprisonment is imposed pursuant to subdivision two of section 70.70 of
this article upon a conviction of a class D or class E felony offense;
(b) such period shall be not less than one year nor more than two
years whenever a determinate sentence of imprisonment is imposed pursu-
ant to subdivision two of section 70.70 of this article upon a
conviction of a class B or class C felony offense;
(c) such period shall be not less than one year nor more than two
years whenever a determinate sentence of imprisonment is imposed pursu-
ant to subdivision three or four of section 70.70 of this article upon
conviction of a class D or class E felony offense;
(d) such period shall be not less than one and one-half years nor more
than three years whenever a determinate sentence of imprisonment is
imposed pursuant to subdivision three or four of section 70.70 of this
article upon conviction of a class B felony or class C felony offense;
(e) such period shall be not less than one and one-half years nor more
than three years whenever a determinate sentence of imprisonment is
imposed pursuant to subdivision three of section 70.02 of this article
upon a conviction of a class D or class E violent felony offense;
(f) such period shall be not less than two and one-half years nor more
than five years whenever a determinate sentence of imprisonment is
imposed pursuant to subdivision three of section 70.02 of this article
upon a conviction of a class B or class C violent felony offense.
2-a. Periods of post-release supervision for felony sex offenses. The
period of post-release supervision for a determinate sentence imposed
for a felony sex offense as defined in paragraph (a) of subdivision one
of section 70.80 of this article shall be as follows:
(a) not less than three years nor more than ten years whenever a
determinate sentence of imprisonment is imposed pursuant to subdivision
four of section 70.80 of this article upon a conviction of a class D or
class E felony sex offense;
(b) not less than five years nor more than fifteen years whenever a
determinate sentence of imprisonment is imposed pursuant to subdivision
four of section 70.80 of this article upon a conviction of a class C
felony sex offense;
(c) not less than five years nor more than twenty years whenever a
determinate sentence of imprisonment is imposed pursuant to subdivision
four of section 70.80 of this article upon a conviction of a class B
felony sex offense;
(d) not less than three years nor more than ten years whenever a
determinate sentence is imposed pursuant to subdivision three of section
70.02 of this article upon a conviction of a class D or class E violent
felony sex offense as defined in paragraph (b) of subdivision one of
section 70.80 of this article;
(e) not less than five years nor more than fifteen years whenever a
determinate sentence is imposed pursuant to subdivision three of section
70.02 of this article upon a conviction of a class C violent felony sex
offense as defined in section 70.80 of this article;
(f) not less than five years nor more than twenty years whenever a
determinate sentence is imposed pursuant to subdivision three of section
70.02 of this article upon a conviction of a class B violent felony sex
offense as defined in section 70.80 of this article;
(g) not less than five years nor more than fifteen years whenever a
determinate sentence of imprisonment is imposed pursuant to either
section 70.04, section 70.06, or subdivision five of section 70.80 of
this article upon a conviction of a class D or class E violent or non-
violent felony sex offense as defined in section 70.80 of this article;
(h) not less than seven years nor more than twenty years whenever a
determinate sentence of imprisonment is imposed pursuant to either
section 70.04, section 70.06, or subdivision five of section 70.80 of
this article upon a conviction of a class C violent or non-violent felo-
ny sex offense as defined in section 70.80 of this article;
(i) such period shall be not less than ten years nor more than twen-
ty-five years whenever a determinate sentence of imprisonment is imposed
pursuant to either section 70.04, section 70.06, or subdivision five of
section 70.80 of this article upon a conviction of a class B violent or
non-violent felony sex offense as defined in section 70.80 of this arti-
cle; and
(j) such period shall be not less than ten years nor more than twenty
years whenever any determinate sentence of imprisonment is imposed
pursuant to subdivision four of section 70.07 of this article.
§ 34. The penal law is amended by adding a new section 60.13 to read
as follows:
§ 60.13 Authorized dispositions; felony sex offenses.
When a person is to be sentenced upon a conviction for any felony
defined in article one hundred thirty of this chapter, including a sexu-
ally motivated felony, or patronizing a prostitute in the first degree
as defined in section 230.06 of this chapter, incest in the second
degree as defined in section 255.26 of this chapter, or incest in the
first degree as defined in section 255.27 of this chapter, or a felony
attempt or conspiracy to commit any of these crimes, the court must
sentence the defendant in accordance with the provisions of section
70.80 of this title.
§ 35. Subdivision 1 of section 60.05 of the penal law, as amended by
chapter 738 of the laws of 2004, is amended to read as follows:
1. Applicability. Except as provided in section 60.04 of this article
governing the authorized dispositions applicable to felony offenses
defined in article two hundred twenty or two hundred twenty-one of this
chapter or in section 60.13 of this article governing the authorized
dispositions applicable to felony sex offenses defined in paragraph (a)
of subdivision one of section 70.80 of this title, this section shall
govern the dispositions authorized when a person is to be sentenced upon
a conviction of a class A felony, a class B felony or a class C, class D
or class E felony specified herein, or when a person is to be sentenced
upon a conviction of a felony as a multiple felony offender.
§ 36. Subdivision 1 of section 70.00 of the penal law, as amended by
section 28 of chapter 738 of the laws of 2004, is amended to read as
follows:
1. Indeterminate sentence. Except as provided in subdivisions four,
five and six of this section or section 70.80 of this article, a>
sentence of imprisonment for a felony, other than a felony defined in
article two hundred twenty or two hundred twenty-one of this chapter,
shall be an indeterminate sentence. When such a sentence is imposed, the
court shall impose a maximum term in accordance with the provisions of
subdivision two of this section and the minimum period of imprisonment
shall be as provided in subdivision three of this section.
§ 37. Subdivision 1 of section 70.00 of the penal law, as amended by
section 29 of chapter 738 of the laws of 2004, is amended to read as
follows:
1. Indeterminate sentence. Except as provided in subdivisions four and
five of this section or section 70.80 of this article, a sentence of
imprisonment for a felony, other than a felony defined in article two
hundred twenty or two hundred twenty-one of this chapter, shall be an
indeterminate sentence. When such a sentence is imposed, the court shall
impose a maximum term in accordance with the provisions of subdivision
two of this section and the minimum period of imprisonment shall be as
provided in subdivision three of this section.
§ 38. Subdivisions 2 and 3 of section 70.06 of the penal law, as
amended by chapter 3 of the laws of 1995, paragraph (e) of subdivision 3
as amended by chapter 92 of the laws of 1996, are amended to read as
follows:
2. Authorized sentence. Except as provided in subdivision five or six
of this section, or as provided in subdivision five of section 70.80 of
this article, when the court has found, pursuant to the provisions of
the criminal procedure law, that a person is a second felony offender
the court must impose an indeterminate sentence of imprisonment. The
maximum term of such sentence must be in accordance with the provisions
of subdivision three of this section and the minimum period of imprison-
ment under such sentence must be in accordance with subdivision four of
this section.
3. Maximum term of sentence. Except as provided in subdivision five or
six of this section, or as provided in subdivision five of section 70.80
of this article, the maximum term of an indeterminate sentence for a
second felony offender must be fixed by the court as follows:
(a) For a class A-II felony, the term must be life imprisonment;
(b) For a class B felony, the term must be at least nine years and
must not exceed twenty-five years;
(c) For a class C felony, the term must be at least six years and must
not exceed fifteen years;
(d) For a class D felony, the term must be at least four years and
must not exceed seven years; and
(e) For a class E felony, the term must be at least three years and
must not exceed four years; provided, however, that where the sentence
is for the class E felony offense specified in section 240.32 of this
chapter, the maximum term must be at least three years and must not
exceed five years.
§ 39. Subdivisions 2 and 3 of section 70.06 of the penal law, as
amended by chapter 410 of the laws of 1979, are amended to read as
follows:
2. Authorized sentence. Except as provided in subdivision five of this
section, or as provided in subdivision five of section 70.80 of this
article, when the court has found, pursuant to the provisions of the
criminal procedure law, that a person is a second felony offender the
court must impose an indeterminate sentence of imprisonment. The maximum
term of such sentence must be in accordance with the provisions of
subdivision three of this section and the minimum period of imprisonment
under such sentence must be in accordance with subdivision four of this
section.
3. Maximum term of sentence. Except as provided in subdivision five of
this section, or as provided in subdivision five of section 70.80 of
this article, the maximum term of an indeterminate sentence for a second
felony offender must be fixed by the court as follows:
(a) For a class A-II felony, the term must be life imprisonment;
(b) For a class B felony, the term must be at least nine years and
must not exceed twenty-five years;
(c) For a class C felony, the term must be at least six years and must
not exceed fifteen years;
(d) For a class D felony, the term must be at least four years and
must not exceed seven years; and
(e) For a class E felony, the term must be at least three years and
must not exceed four years.
§ 39-a. Subdivision 2 of section 70.10 of the penal law, as amended by
chapter 481 of the laws of 1978, is amended to read as follows:
2. Authorized sentence. When the court has found, pursuant to the
provisions of the criminal procedure law, that a person is a persistent
felony offender, and when it is of the opinion that the history and
character of the defendant and the nature and circumstances of his crim-
inal conduct indicate that extended incarceration and life-time super-
vision will best serve the public interest, the court, in lieu of impos-
ing the sentence of imprisonment authorized by section 70.00, 70.02,
70.04 [or], 70.06 or subdivision five of section 70.80 for the crime of
which such person presently stands convicted, may impose the sentence of
imprisonment authorized by that section for a class A-I felony. In such
event the reasons for the court's opinion shall be set forth in the
record.
§ 40. Subdivision 2-a of section 70.25 of the penal law, as amended by
section 33 of chapter 738 of the laws of 2004, is amended to read as
follows:
2-a. When an indeterminate or determinate sentence of imprisonment is
imposed pursuant to section 70.04, 70.06, 70.08, 70.10, subdivision
three or four of section 70.70 [or], subdivision three or four of
section 70.71 or subdivision five of section 70.80 of this article, and
such person is subject to an undischarged indeterminate or determinate
sentence of imprisonment imposed prior to the date on which the present
crime was committed, the court must impose a sentence to run consec-
utively with respect to such undischarged sentence.
§ 41. Subdivision 2-a of section 70.25 of the penal law, as amended by
section 34 of chapter 738 of the laws of 2004, is amended to read as
follows:
2-a. When an indeterminate or determinate sentence of imprisonment is
imposed pursuant to section 70.04, 70.06, 70.08, 70.10, subdivision
three or four of section 70.70 [or], subdivision three or four of
section 70.71 or subdivision five of section 70.80 of this article, and
such person is subject to an undischarged indeterminate sentence of
imprisonment imposed prior to the date on which the present crime was
committed, the court must impose a sentence to run consecutively with
respect to such undischarged sentence.
§ 42. Subparagraph (x) of paragraph (f) of subdivision 3 of section
259-i of the executive law, as amended by section 11 of part E of chap-
ter 62 of the laws of 2003, is amended to read as follows:
(x) If the presiding officer is satisfied that there is a preponder-
ance of evidence that the alleged violator violated one or more condi-
tions of release in an important respect, he or she shall so find. For
each violation so found, the presiding officer may (A) direct that the
presumptive releasee, parolee, conditional releasee or person serving a
period of post-release supervision be restored to supervision; (B) as an
alternative to reincarceration, direct the presumptive releasee, paro-
lee, conditional releasee or person serving a period of post-release
supervision be placed in a parole transition facility for a period not
to exceed one hundred eighty days and subsequent restoration to super-
vision; (C) in the case of presumptive releasee, parolees or conditional
releasees, direct the violator's reincarceration and fix a date for
consideration by the board for re-release on presumptive release, or
parole or conditional release, as the case may be; or (D) in the case of
persons released to a period of post-release supervision, direct the
violator's reincarceration for a period of at least six months and up to
the balance of the remaining period of post-release supervision, not to
exceed five years; provided, however, that a defendant serving a term of
post-release supervision for a conviction of a felony sex offense
defined in section 70.80 of the penal law may be subject to a further
period of imprisonment up to the balance of the remaining period of
post-release supervision. Where a date has been fixed for the viola-
tor's re-release on presumptive release, parole or conditional release,
as the case may be, the board or board member may waive the personal
interview between a member or members of the board and the violator to
determine the suitability for re-release; provided, however, that the
board shall retain the authority to suspend the date fixed for re-re-
lease and to require a personal interview based on the violator's insti-
tutional record or on such other basis as is authorized by the rules and
regulations of the board. If an interview is required, the board shall
notify the violator of the time of such interview in accordance with the
rules and regulations of the board. If the violator is placed in a
parole transition facility or restored to supervision, the presiding
officer may impose such other conditions of presumptive release, parole,
conditional release, or post-release supervision as he may deem appro-
priate, as authorized by rules of the board.
§ 43. Paragraph (g) of subdivision 3 of section 259-i of the executive
law, as amended by section 11 of part E of chapter 62 of the laws of
2003, is amended to read as follows:
(g) Revocation of presumptive release, parole, conditional release or
post-release supervision shall not prevent re-parole or re-release
provided such re-parole or re-release is not inconsistent with any other
provisions of law. When there has been a revocation of the period of
post-release supervision imposed on a felony sex offender who owes three
years or more on such period imposed pursuant to subdivision two-a of
section 70.45 of the penal law, and a time assessment of three years or
more has been imposed, the violator shall be reviewed by the board of
parole and may be restored to post-release supervision only after serv-
ing three years of the time assessment, and only upon a determination by
the board of parole made in accordance with the procedures set forth in
this section. Even if the hearing officer has imposed a time assessment
of a certain number of years of three years or more, the violator shall
not be released at or before the expiration of that time assessment
unless the board authorizes such release, the period of post-release
supervision expires, or release is otherwise authorized by law. If a
time assessment of less than three years was imposed upon such a defend-
ant, the defendant shall be released upon the expiration of such time
assessment, unless he or she is subject to further imprisonment or
confinement under any other law.
§ 43-a. Subparagraph (ii) of paragraph (a) of subdivision 3 of section
259-i of the executive law, as amended by section 1 of part J of chapter
56 of the laws of 2004, is amended to read as follows:
(ii) Whenever a presumptively released, paroled or conditionally
released person or a person under post-release supervision or a prisoner
received under the uniform act for out-of-state parolee supervision has,
pursuant to this paragraph, or whenever a person confined during
proceedings pursuant to article ten of the mental hygiene law has been
placed in any county jail or penitentiary, or a city prison operated by
a city having a population of one million or more inhabitants, for any
period that such person is not detained pursuant to commitment based on
an indictment, an information, a simplified information, a prosecutor's
information, a misdemeanor complaint or a felony complaint, an arrest
warrant or a bench warrant, or any order by a court of competent juris-
diction, the state shall pay to the city or county operating such facil-
ity the actual per day per capita cost as certified to the state commis-
sioner of correctional services by the appropriate local official for
the care of such person and as approved by the director of the budget.
The reimbursement rate shall not, however, exceed thirty dollars per day
per capita and forty dollars per day per capita on and after the first
day of April, nineteen hundred eighty-eight.
§ 44. Section 259-j of the executive law is amended by adding a new
subdivision 6 to read as follows:
6. Notwithstanding any other provision of this section to the contra-
ry, where a term of post-release supervision in excess of five years has
been imposed on a person convicted of a crime defined in article one
hundred thirty of the penal law, including a sexually motivated felony,
the division of parole may grant a discharge from post-release super-
vision prior to the expiration of the maximum term of post-release
supervision. Such a discharge may be granted only after the person has
served at least five years of post-release supervision, and only to a
person who has been on unrevoked post-release supervision for at least
three consecutive years. No such discharge shall be granted unless the
division of parole: (a) consults with any licensed psychologist, quali-
fied psychiatrist, or other mental health professional who is providing
care or treatment to the supervisee; (b) determines that a discharge
from post-release supervision is in the best interests of society; and
(c) is satisfied that the supervisee, otherwise financially able to
comply with an order of restitution and the payment of any mandatory
surcharge, sex offender registration fee, or DNA data bank fee previous-
ly imposed by a court of competent jurisdiction, has made a good faith
effort to comply therewith. Before making a determination to discharge
a person from a period of post-release supervision, the division of
parole may request that the commissioner of the office of mental health
arrange a psychiatric evaluation of the supervisee. A discharge granted
under this section shall constitute a termination of the sentence with
respect to which it was granted.
§ 45. Section 259-j of the executive law is amended by adding a new
subdivision 3 to read as follows:
3. Notwithstanding any other provision of this section to the contra-
ry, where a term of post-release supervision in excess of five years has
been imposed on a person convicted of a crime defined in article one
hundred thirty of the penal law, including a sexually motivated felony,
the division of parole may grant a discharge from post-release super-
vision prior to the expiration of the maximum term of post-release
supervision. Such a discharge may be granted only after the person has
served at least five years of post-release supervision, and only to a
person who has been on unrevoked post-release supervision for at least
three consecutive years. No such discharge shall be granted unless the
division of parole: (a) consults with any licensed psychologist, quali-
fied psychiatrist, or other mental health professional who is providing
care or treatment to the supervisee; (b) determines that a discharge
from post-release supervision is in the best interests of society; and
(c) is satisfied that the supervisee, otherwise financially able to
comply with an order of restitution and the payment of any mandatory
surcharge, sex offender registration fee, or DNA data bank fee previous-
ly imposed by a court of competent jurisdiction, has made a good faith
effort to comply therewith. Before making a determination to discharge
a person from a period of post-release supervision, the division of
parole may request that the commissioner of the office of mental health
arrange a psychiatric evaluation of the supervisee. A discharge granted
under this section shall constitute a termination of the sentence with
respect to which it was granted.
§ 46. Subdivision 42 of section 1.20 of the criminal procedure law, as
amended by chapter 264 of the laws of 2003, is amended to read as
follows:
42. "Juvenile offender" means (1) a person, thirteen years old who is
criminally responsible for acts constituting murder in the second degree
as defined in subdivisions one and two of section 125.25 of the penal
law, or such conduct as a sexually motivated felony, where authorized
pursuant to section 130.91 of the penal law; and (2) a person fourteen
or fifteen years old who is criminally responsible for acts constituting
the crimes defined in subdivisions one and two of section 125.25 (murder
in the second degree) and in subdivision three of such section provided
that the underlying crime for the murder charge is one for which such
person is criminally responsible; section 135.25 (kidnapping in the
first degree); 150.20 (arson in the first degree); subdivisions one and
two of section 120.10 (assault in the first degree); 125.20 (manslaught-
er in the first degree); subdivisions one and two of section 130.35
(rape in the first degree); subdivisions one and two of section 130.50
(criminal sexual act in the first degree); 130.70 (aggravated sexual
abuse in the first degree); 140.30 (burglary in the first degree);
subdivision one of section 140.25 (burglary in the second degree);
150.15 (arson in the second degree); 160.15 (robbery in the first
degree); subdivision two of section 160.10 (robbery in the second
degree) of the penal law; [subdivision four of section 265.02 of the
penal law, where such firearm is possessed on school grounds, as that
phrase is defined in subdivision fourteen of section 220.00 of the penal
law;] or section 265.03 of the penal law, where such machine gun or such
firearm is possessed on school grounds, as that phrase is defined in
subdivision fourteen of section 220.00 of the penal law; or defined in
the penal law as an attempt to commit murder in the second degree or
kidnapping in the first degree, or such conduct as a sexually motivated
felony, where authorized pursuant to section 130.91 of the penal law.
§ 47. Subdivision 18 of section 10.00 of the penal law, as amended by
chapter 435 of the laws of 1998 and paragraph 2 as amended by chapter
264 of the laws of 2003, is amended to read as follows:
18. "Juvenile offender" means (1) a person thirteen years old who is
criminally responsible for acts constituting murder in the second degree
as defined in subdivisions one and two of section 125.25 of this chapter
CHAP. 7 40

or such conduct as a sexually motivated felony, where authorized pursu-
ant to section 130.91 of the penal law; and
(2) a person fourteen or fifteen years old who is criminally responsi-
ble for acts constituting the crimes defined in subdivisions one and two
of section 125.25 (murder in the second degree) and in subdivision three
of such section provided that the underlying crime for the murder charge
is one for which such person is criminally responsible; section 135.25
(kidnapping in the first degree); 150.20 (arson in the first degree);
subdivisions one and two of section 120.10 (assault in the first
degree); 125.20 (manslaughter in the first degree); subdivisions one and
two of section 130.35 (rape in the first degree); subdivisions one and
two of section 130.50 (criminal sexual act in the first degree); 130.70
(aggravated sexual abuse in the first degree); 140.30 (burglary in the
first degree); subdivision one of section 140.25 (burglary in the second
degree); 150.15 (arson in the second degree); 160.15 (robbery in the
first degree); subdivision two of section 160.10 (robbery in the second
degree) of this chapter; [subdivision four of section 265.02 of this
chapter, where such firearm is possessed on school grounds, as that
phrase is defined in subdivision fourteen of section 220.00 of this
chapter;] or section 265.03 of this chapter, where such machine gun or
such firearm is possessed on school grounds, as that phrase is defined
in subdivision fourteen of section 220.00 of this chapter; or defined in
this chapter as an attempt to commit murder in the second degree or
kidnapping in the first degree, or such conduct as a sexually motivated
felony, where authorized pursuant to section 130.91 of the penal law.
§ 48. Subdivision 2 of section 30.00 of the penal law, as amended by
chapter 264 of the laws of 2003, is amended to read as follows:
2. A person thirteen, fourteen or fifteen years of age is criminally
responsible for acts constituting murder in the second degree as defined
in subdivisions one and two of section 125.25 and in subdivision three
of such section provided that the underlying crime for the murder charge
is one for which such person is criminally responsible or for such
conduct as a sexually motivated felony, where authorized pursuant to
section 130.91 of the penal law; and a person fourteen or fifteen years
of age is criminally responsible for acts constituting the crimes
defined in section 135.25 (kidnapping in the first degree); 150.20
(arson in the first degree); subdivisions one and two of section 120.10
(assault in the first degree); 125.20 (manslaughter in the first
degree); subdivisions one and two of section 130.35 (rape in the first
degree); subdivisions one and two of section 130.50 (criminal sexual act
in the first degree); 130.70 (aggravated sexual abuse in the first
degree); 140.30 (burglary in the first degree); subdivision one of
section 140.25 (burglary in the second degree); 150.15 (arson in the
second degree); 160.15 (robbery in the first degree); subdivision two of
section 160.10 (robbery in the second degree) of this chapter; [subdivi-
sion four of section 265.02 of this chapter, where such firearm is
possessed on school grounds, as that phrase is defined in subdivision
fourteen of section 220.00 of this chapter;] or section 265.03 of this
chapter, where such machine gun or such firearm is possessed on school
grounds, as that phrase is defined in subdivision fourteen of section
220.00 of this chapter; or defined in this chapter as an attempt to
commit murder in the second degree or kidnapping in the first degree, or
for such conduct as a sexually motivated felony, where authorized pursu-
ant to section 130.91 of the penal law.
§ 49. Subdivision (b) of section 117 of the family court act, as
amended by chapter 920 of the laws of 1982, the opening paragraph as
amended by chapter 435 of the laws of 1998 and clause (ii) of the open-
ing paragraph as amended by chapter 264 of the laws of 2003, is amended
to read as follows:
(b) For every juvenile delinquency proceeding under article three
involving an allegation of an act committed by a person which, if done
by an adult, would be a crime (i) defined in sections 125.27 (murder in
the first degree); 125.25 (murder in the second degree); 135.25 (kidnap-
ping in the first degree); or 150.20 (arson in the first degree) of the
penal law committed by a person thirteen, fourteen or fifteen years of
age; or such conduct committed as a sexually motivated felony, where
authorized pursuant to section 130.91 of the penal law; (ii) defined in
sections 120.10 (assault in the first degree); 125.20 (manslaughter in
the first degree); 130.35 (rape in the first degree); 130.50 ( criminal
sexual act in the first degree); 135.20 (kidnapping in the second
degree), but only where the abduction involved the use or threat of use
of deadly physical force; 150.15 (arson in the second degree); or 160.15
(robbery in the first degree) of the penal law committed by a person
thirteen, fourteen or fifteen years of age; or such conduct committed as
a sexually motivated felony, where authorized pursuant to section 130.91
of the penal law; (iii) defined in the penal law as an attempt to commit
murder in the first or second degree or kidnapping in the first degree
committed by a person thirteen, fourteen or fifteen years of age; or
such conduct committed as a sexually motivated felony, where authorized
pursuant to section 130.91 of the penal law; (iv) defined in section
140.30 (burglary in the first degree); subdivision one of section 140.25
(burglary in the second degree); subdivision two of section 160.10
(robbery in the second degree) of the penal law; [subdivision four of
section 265.02 of the penal law, where such firearm is possessed on
school grounds, as that phrase is defined in subdivision fourteen of
section 220.00 of the penal law;] or section 265.03 of the penal law,
where such machine gun or such firearm is possessed on school grounds,
as that phrase is defined in subdivision fourteen of section 220.00 of
the penal law committed by a person fourteen or fifteen years of age; or
such conduct committed as a sexually motivated felony, where authorized
pursuant to section 130.91 of the penal law; (v) defined in section
120.05 (assault in the second degree) or 160.10 (robbery in the second
degree) of the penal law committed by a person fourteen or fifteen years
of age but only where there has been a prior finding by a court that
such person has previously committed an act which, if committed by an
adult, would be the crime of assault in the second degree, robbery in
the second degree or any designated felony act specified in clause (i),
(ii) or (iii) of this subdivision regardless of the age of such person
at the time of the commission of the prior act; or (vi) other than a
misdemeanor, committed by a person at least seven but less than sixteen
years of age, but only where there has been two prior findings by the
court that such person has committed a prior act which, if committed by
an adult would be a felony:
(i) There is hereby established in the family court in the city of New
York at least one "designated felony act part." Such part or parts shall
be held separate from all other proceedings of the court, and shall have
jurisdiction over all proceedings involving such an allegation. All such
proceedings shall be originated in or be transferred to this part from
other parts as they are made known to the court.
(ii) Outside the city of New York, all proceedings involving such an
allegation shall have a hearing preference over every other proceeding
in the court, except proceedings under article ten.

§ 50. Subdivision 8 of section 301.2 of the family court act, as
amended by chapter 435 of the laws of 1998, paragraph (ii) as amended by
chapter 264 of the laws of 2003, is amended to read as follows:
8. "Designated felony act" means an act which, if done by an adult,
would be a crime: (i) defined in sections 125.27 (murder in the first
degree); 125.25 (murder in the second degree); 135.25 (kidnapping in the
first degree); or 150.20 (arson in the first degree) of the penal law
committed by a person thirteen, fourteen or fifteen years of age; or
such conduct committed as a sexually motivated felony, where authorized
pursuant to section 130.91 of the penal law; (ii) defined in sections
120.10 (assault in the first degree); 125.20 (manslaughter in the first
degree); 130.35 (rape in the first degree); 130.50 (criminal sexual act
in the first degree); 130.70 (aggravated sexual abuse in the first
degree); 135.20 (kidnapping in the second degree) but only where the
abduction involved the use or threat of use of deadly physical force;
150.15 (arson in the second degree) or 160.15 (robbery in the first
degree) of the penal law committed by a person thirteen, fourteen or
fifteen years of age; or such conduct committed as a sexually motivated
felony, where authorized pursuant to section 130.91 of the penal law;
(iii) defined in the penal law as an attempt to commit murder in the
first or second degree or kidnapping in the first degree committed by a
person thirteen, fourteen or fifteen years of age; or such conduct
committed as a sexually motivated felony, where authorized pursuant to
section 130.91 of the penal law; (iv) defined in section 140.30
(burglary in the first degree); subdivision one of section 140.25
(burglary in the second degree); subdivision two of section 160.10
(robbery in the second degree) of the penal law; [subdivision four of
section 265.02 of the penal law, where such firearm is possessed on
school grounds, as that phrase is defined in subdivision fourteen of
section 220.00 of the penal law;] or section 265.03 of the penal law,
where such machine gun or such firearm is possessed on school grounds,
as that phrase is defined in subdivision fourteen of section 220.00 of
the penal law committed by a person fourteen or fifteen years of age; or
such conduct committed as a sexually motivated felony, where authorized
pursuant to section 130.91 of the penal law; (v) defined in section
120.05 (assault in the second degree) or 160.10 (robbery in the second
degree) of the penal law committed by a person fourteen or fifteen years
of age but only where there has been a prior finding by a court that
such person has previously committed an act which, if committed by an
adult, would be the crime of assault in the second degree, robbery in
the second degree or any designated felony act specified in paragraph
(i), (ii), or (iii) of this subdivision regardless of the age of such
person at the time of the commission of the prior act; or (vi) other
than a misdemeanor committed by a person at least seven but less than
sixteen years of age, but only where there has been two prior findings
by the court that such person has committed a prior felony.
§ 50-a. The opening paragraph of section 722 of the county law, as
amended by chapter 453 of the laws of 1999, is amended to read as
follows:
The governing body of each county and the governing body of the city
in which a county is wholly contained shall place in operation through-
out the county a plan for providing counsel to persons charged with a
crime or who are entitled to counsel pursuant to section two hundred
sixty-two or section eleven hundred twenty of the family court act,
article six-C of the correction law [or], section four hundred seven of
the surrogate's court procedure act or article ten of the mental hygiene
law, who are financially unable to obtain counsel. Each plan shall also
provide for investigative, expert and other services necessary for an
adequate defense. The plan shall conform to one of the following:
§ 51. Severability. If any clause, sentence, paragraph, section or
part of this act shall be adjudged by any court of competent jurisdic-
tion to be invalid and after exhaustion of all further judicial review,
the judgment shall not affect, impair or invalidate the remainder there-
of, but shall be confined in its operation to the clause, sentence,
paragraph, section or part of this act directly involved in the contro-
versy in which the judgment shall have been rendered.
§ 52. This act shall take effect on the thirtieth day after it shall
have become a law; provided, however, that:
(a) the provisions of sections thirteen, twenty-nine, thirty, thirty-
one, thirty-two, thirty-three, thirty-four, thirty-five, thirty-six,
thirty-seven, thirty-eight, thirty-nine, thirty-nine-a, forty, forty-
one, forty-two, forty-three, forty-four, forty-five, forty-six, forty-
seven, forty-eight, forty-nine and fifty of this act shall only apply to
crimes committed after the effective date of this act;
(b) the amendments to subdivision 1 of section 70.00 of the penal law
made by section thirty-six of this act shall be subject to the expira-
tion and reversion of such subdivision pursuant to subdivision d of
section 74 of chapter 3 of the laws of 1995, as amended, when upon such
date the provisions of section thirty-seven of this act shall take
effect;
(c) the amendments to subdivisions 2 and 3 of section 70.06 of the
penal law made by section thirty-eight of this act shall be subject to
the expiration and reversion of such subdivisions pursuant to subdivi-
sion d of section 74 of chapter 3 of the laws of 1995, as amended, when
upon such date the provisions of section thirty-nine of this act shall
take effect;
(d) the amendments to subdivision 2-a of section 70.25 of the penal
law made by section forty of this act shall be subject to the expiration
and reversion of such subdivision pursuant to subdivision d of section
74 of chapter 3 of the laws of 1995, as amended, when upon such date the
provisions of section forty-one of this act shall take effect; and
(e) the amendments to section 259-j of the executive law made by
section forty-four of this act shall not affect the expiration of such
section, and shall expire and be deemed repealed therewith, when upon
such date the provisions of section forty-five of this act shall take
effect.

The Legislature of the STATE OF NEW YORK ss:
Pursuant to the authority vested in us by section 70-b of the Public
Officers Law, we hereby jointly certify that this slip copy of this
session law was printed under our direction and, in accordance with such
section, is entitled to be read into evidence.