2006 New York Code - Petition For Relief Or Modification.



 
    §  168-o. Petition for relief or modification. 1. Any sex offender who
  is classified as a level two risk, and who has  not  been  designated  a
  sexual  predator,  or  a  sexually  violent offender, or a predicate sex
  offender, who is required to register or verify pursuant to this article
  and who has been registered for a minimum period of thirty years may  be
  relieved of any further duty to register upon the granting of a petition
  for  relief  by  the  sentencing  court  or  by the court which made the
  determination  regarding  duration  of   registration   and   level   of
  notification. The sex offender shall bear the burden of proving by clear
  and  convincing  evidence  that  his  or  her risk of repeat offense and
  threat to public safety is such that registration or verification is  no
  longer  necessary.  Such  petition,  if  granted,  shall not relieve the
  petitioner of the  duty  to  register  pursuant  to  this  article  upon
  conviction  of  any offense requiring registration in the future. Such a
  petition shall not be considered more than once every two years. In  the
  event  that  the  sex  offender's  petition  for  relief is granted, the
  district attorney may appeal as of right from the order pursuant to  the
  provisions  of  articles  fifty-five,  fifty-six  and fifty-seven of the
  civil practice law  and  rules.  Where  counsel  has  been  assigned  to
  represent  the  sex  offender  upon  the ground that the sex offender is
  financially unable to retain counsel, that assignment shall be continued
  throughout the pendency of the appeal, and the person may  appeal  as  a
  poor person pursuant to article eighteen-B of the county law.
    2.  Any  sex  offender required to register or verify pursuant to this
  article may petition the sentencing court or the court  which  made  the
  determination regarding the level of notification for an order modifying
  the  level  of  notification.  The petition shall set forth the level of
  notification  sought,  together  with  the  reasons  for  seeking   such
  determination.  The  sex  offender  shall bear the burden of proving the
  facts supporting the requested  modification  by  clear  and  convincing
  evidence. Such a petition shall not be considered more than annually. In
  the  event  that  the  sex  offender's  petition  to modify the level of
  notification is granted, the district attorney may appeal  as  of  right
  from  the  order  pursuant  to  the  provisions  of articles fifty-five,
  fifty-six and fifty-seven of the civil practice  law  and  rules.  Where
  counsel  has been assigned to represent the sex offender upon the ground
  that the sex offender is financially  unable  to  retain  counsel,  that
  assignment shall be continued throughout the pendency of the appeal, and
  the person may appeal as a poor person pursuant to article eighteen-B of
  the county law.
    3.  The  district  attorney may file a petition to modify the level of
  notification for a sex offender with the sentencing court  or  with  the
  court  which made the determination regarding the level of notification,
  where the sex offender (a) has been convicted of a new crime,  or  there
  has  been  a determination after a proceeding pursuant to section 410.70
  of the criminal procedure law or section two hundred fifty-nine-i of the
  executive law that the sex offender has violated one or more  conditions
  imposed  as  part  of  a sentence of a conditional discharge, probation,
  parole or post-release supervision for a designated crime, and  (b)  the
  conduct  underlying  the  new crime or the violation is of a nature that
  indicates an increased risk of a repeat sex offense. The petition  shall
  set  forth  the  level of notification sought, together with the reasons
  for seeking such determination. The district  attorney  shall  bear  the
  burden  of  proving  the facts supporting the requested modification, by
  clear and convincing evidence. In the event that the district attorney's
  petition is granted, the sex offender may appeal as of  right  from  the
  order,  pursuant to the provisions of articles fifty-five, fifty-six and
  fifty-seven of the civil practice law and rules. Where counsel has  been
  assigned  to  represent  the  offender upon the ground that he or she is
  financially unable to retain counsel, that assignment shall be continued
  throughout the pendency of the appeal, and the person may proceed  as  a
  poor person, pursuant to article eighteen-B of the county law.
    4.  Upon  receipt of a petition submitted pursuant to subdivision one,
  two or three of this section, the court shall  forward  a  copy  of  the
  petition  to  the board and request an updated recommendation pertaining
  to the sex offender and shall provide a copy  of  the  petition  to  the
  other  party.    The court shall also advise the sex offender that he or
  she has the right to be  represented  by  counsel  at  the  hearing  and
  counsel  will  be appointed if he or she is financially unable to retain
  counsel. A returnable form shall be enclosed in the  court's  notice  to
  the  sex  offender on which the sex offender may apply for assignment of
  counsel.  If the sex offender applies for assignment of counsel and  the
  court  finds  that the offender is financially unable to retain counsel,
  the court shall assign counsel to represent the  offender,  pursuant  to
  article  eighteen-B of the county law. Where the petition was filed by a
  district attorney, at least thirty  days  prior  to  making  an  updated
  recommendation  the  board  shall notify the sex offender and his or her
  counsel that the offender's case is  under  review  and  he  or  she  is
  permitted to submit to the board any information relevant to the review.
  The  board's  updated  recommendation  on  the  sex  offender  shall  be
  confidential and shall not be available  for  public  inspection.  After
  receiving  an  updated  recommendation  from  the board concerning a sex
  offender, the court shall, at least thirty days prior to ruling upon the
  petition, provide a copy  of  the  updated  recommendation  to  the  sex
  offender,  the  sex  offender's  counsel  and  the district attorney and
  notify them, in writing, of the date set by the court for a  hearing  on
  the petition. After reviewing the recommendation received from the board
  and  any  relevant  materials and evidence submitted by the sex offender
  and the district attorney, the court may grant or deny the petition. The
  court may also consult with the victim prior to making  a  determination
  on  the  petition.  The  court  shall  render an order setting forth its
  determination, and the findings of fact and conclusions of law on  which
  the  determination is based. If the petition is granted, it shall be the
  obligation of the court to submit a copy of its order to  the  division.
  Upon  application  of  either party, the court shall seal any portion of
  the court file or record which contains material  that  is  confidential
  under any state or federal statute.


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