2006 New York Code - Judicial Determination.

 
    §  168-n.  Judicial determination. 1. A determination that an offender
  is a sexual  predator,  sexually  violent  offender,  or  predicate  sex
  offender  as  defined  in  subdivision  seven  of  section  one  hundred
  sixty-eight-a of this article shall be  made  prior  to  the  discharge,
  parole,  release to post-release supervision or release of such offender
  by  the  sentencing  court  applying  the  guidelines   established   in
  subdivision  five  of  section one hundred sixty-eight-l of this article
  after receiving a recommendation from the board pursuant to section  one
  hundred sixty-eight-l of this article.
    2.  In  addition,  applying  the guidelines established in subdivision
  five  of  section  one  hundred  sixty-eight-l  of  this  article,   the
  sentencing  court  shall  also  make a determination with respect to the
  level of notification, after receiving a recommendation from  the  board
  pursuant  to  section  one  hundred  sixty-eight-l of this article. Both
  determinations of the sentencing court shall  be  made  thirty  calendar
  days prior to discharge, parole or release.
    3.  No later than thirty days prior to the board's recommendation, the
  sex offender shall be notified that his or her case is under review  and
  that  he  or  she  is  permitted  to submit to the board any information
  relevant to the review. Upon receipt of the board's recommendation,  the
  sentencing court shall determine whether the sex offender was previously
  found  to be eligible for assigned counsel in the underlying case. Where
  such a finding was previously made, the court shall  assign  counsel  to
  represent  the  offender,  pursuant  to article eighteen-B of the county
  law. At least twenty days prior to  the  determination  proceeding,  the
  sentencing  court  shall  notify the district attorney, the sex offender
  and the  sex  offender's  counsel,  in  writing,  of  the  date  of  the
  determination  proceeding  and shall also provide the district attorney,
  the sex offender and the sex offender's  counsel  with  a  copy  of  the
  recommendation  received from the board and any statement of the reasons
  for the recommendation  received  from  the  board.  This  notice  shall
  include  the  following  statement or a substantially similar statement:
  "This proceeding  is  being  held  to  determine  whether  you  will  be
  classified  as  a  level  3 offender (risk of repeat offense is high), a
  level 2 offender (risk of repeat offense is  moderate),  or  a  level  1
  offender  (risk  of  repeat  offense  is  low),  or  whether you will be
  designated as a sexual  predator,  a  sexually  violent  offender  or  a
  predicate  sex offender, which will determine how long you must register
  as a sex offender and how much information can be provided to the public
  concerning your registration. If you fail to appear at this  proceeding,
  without  sufficient excuse, it shall be held in your absence. Failure to
  appear may result in a longer period of registration or a  higher  level
  of  community notification because you are not present to offer evidence
  or contest evidence offered  by  the  district  attorney."  The  written
  notice to the sex offender shall also advise the offender that he or she
  has a right to a hearing prior to the court's determination, and that he
  or  she  has  the  right to be represented by counsel at the hearing. If
  counsel has been assigned to represent the offender at the determination
  proceeding,  the  notice  shall  also  provide  the  name,  address  and
  telephone  number  of  the  assigned counsel. Where counsel has not been
  assigned, the notice shall advise the sex offender that counsel will  be
  appointed  if  he  or she is financially unable to retain counsel, and a
  returnable form shall be enclosed in  the  court's  notice  to  the  sex
  offender  on which the sex offender may apply for assignment of counsel.
  If the sex offender applies for assignment  of  counsel  and  the  court
  finds  that  the  offender  is financially unable to retain counsel, the
  court shall assign counsel to represent the  sex  offender  pursuant  to
  article  eighteen-B  of the county law. If the district attorney seeks a
  determination that differs from  the  recommendation  submitted  by  the
  board,  at  least  ten  days  prior  to the determination proceeding the
  district attorney shall provide to the court  and  the  sex  offender  a
  statement  setting  forth  the  determinations  sought  by  the district
  attorney together with the reasons for seeking such determinations.  The
  court  shall  allow  the  sex offender to appear and be heard. The state
  shall appear by the district attorney, or his or her designee, who shall
  bear the burden of  proving  the  facts  supporting  the  determinations
  sought  by  clear  and  convincing  evidence.  Where  there is a dispute
  between the parties  concerning  the  determinations,  the  court  shall
  adjourn  the  hearing  as  necessary  to  permit the sex offender or the
  district attorney to obtain materials  relevant  to  the  determinations
  from the state board of examiners of sex offenders or any state or local
  facility, hospital, institution, office, agency, department or division.
  Such  materials  may be obtained by subpoena if not voluntarily provided
  to the requesting party. In making the determinations  the  court  shall
  review  any  victim's  statement and any relevant materials and evidence
  submitted by  the  sex  offender  and  the  district  attorney  and  the
  recommendation  and  any  materials  submitted  by  the  board,  and may
  consider reliable hearsay evidence submitted by either  party,  provided
  that  it  is  relevant to the determinations. Facts previously proven at
  trial or elicited at the time of entry of a  plea  of  guilty  shall  be
  deemed  established  by  clear  and convincing evidence and shall not be
  relitigated.  The  court  shall  render  an  order  setting  forth   its
  determinations  and the findings of fact and conclusions of law on which
  the determinations are based. A copy of the order shall be submitted  by
  the  court  to the division. Upon application of either party, the court
  shall seal any portion of  the  court  file  or  record  which  contains
  material that is confidential under any state or federal statute. Either
  party  may  appeal as of right from the order pursuant to the provisions
  of articles fifty-five, fifty-six and fifty-seven of the civil  practice
  law  and  rules.  Where  counsel  has been assigned to represent the sex
  offender upon the ground that the sex offender is financially unable  to
  retain  counsel,  that  assignment  shall  be  continued  throughout the
  pendency of the appeal, and the person  may  appeal  as  a  poor  person
  pursuant to article eighteen-B of the county law.
    4.  Upon  determination  that the risk of repeat offense and threat to
  public safety is high,  the  sentencing  court  shall  also  notify  the
  division   of  such  fact  for  the  purposes  of  section  one  hundred
  sixty-eight-q of this article.
    5. Upon the reversal of a conviction of a sexual  offense  defined  in
  paragraphs  (a)  and  (b)  of  subdivision  two  or three of section one
  hundred sixty-eight-a of this article, the appellate court shall  remand
  the  case  to  the  lower  court  for  entry  of  an order directing the
  expungement of any records required to be kept herein.
    6. If a sex offender, having been given notice, including the time and
  place of the determination proceeding in accordance with  this  section,
  fails to appear at this proceeding, without sufficient excuse, the court
  shall  conduct the hearing and make the determinations in the manner set
  forth in subdivision three of this section.