Provides for disclosure of sexual offender information related to a patient or client

(2) To amend the Correction Law to include persons who have had pleas accepted, or who have had verdicts entered against them, of not responsible by reason of mental disease or defect within the provisions of the sex offender registration act where such plea or verdict relates to a sex offense as defined in the provisions of the sex offender registration act.

(3) To amend the Correction Law and the Mental Hygiene Law in relation to ensuring that notification of change of address by a sex offender occurs at or prior to the time that such offender is to be discharged or released from a Department of Mental Hygiene facility.

Summary of provisions

(1) Section one of this bill would authorize both the Commissioner of OMRDD and the Commissioner of OMH to release certain portions of client or patient clinical information related to the sex offender status of individuals to other persons and entities when necessary to ensure the safety and welfare of others. The release of such information would be limited to sex offender registration information that is available to the public pursuant to Article 6-C of the Correction Law.

(2) Sections two, three and four of bill would amend provisions within the "Sex Offender Registration Act" ("SORA") set forth in Article 6-C of the Correction Law as follows:

(a) Section two amends subdivision 10f § 168-a of the Correction Law, to include, within the definition of "sex offender", those persons who have entered a plea, accepted by the court, or have had a verdict rendered against them, of not responsible by reason of mental disease or defect with respect to any of the offenses for which a convicted person would be defined or otherwise labeled under SORA as a sex offender.

(b) Section three of this bill would amend paragraph (c) of subdivision 1 of § 168-b of the Correction Law to require the

Division of Criminal Justice Services to maintain information in the SORA registry on those persons who have entered a plea, accepted by the court, or have had a verdict rendered against them, of not responsible by reason of mental disease or defect and who, by reason of such plea or verdict, would be included within the definition of a sex offender. (c) Section four of this bill would amend § 168-d of the Correction Law to create an additional duty of the court to certify, when applicable, that a person is a sex offender in an order issued pursuant to the provisions of Article 330 of the Criminal procedure Law. This section is further amended so that the court carries out the same duties, with respect to sex offenders who are subjected to orders issued pursuant to the provisions of Article 330 of the Criminal Procedure Law, as the court heretofore had carried out under this section for persons who had been convicted of any of the offenses set forth in subdivisions two or three of § 168-a of the Correction Law.

(3) Sections 5, 6 and 7 of this proposal will amend the provisions of §29.16 of the Mental Hygiene Law which currently relates to the discharge of patients from a department facility. Under this proposal, the director of a department facility, prior to the discharge or release, including a court ordered release, of a patient who is a registered sex offender pursuant to Article 6-C of the Correction Law (SORA), will contact the Division of Criminal Justice Services to determine whether or not such patient has registered a proposed change of address pursuant to § 168-f(4)of the Correction Law. In the event that the director of a department of facility finds that the resident sex offender has not filed a proposed change of address in accordance with the registration requirement of the correction law, the director would be authorized to delay the implementation of the discharge or release, including a court order release, of such resident for a period of up to 10 days or until the date that such person complies with the registration requirements of the applicable provisions of SORA, whichever occurs first.

This proposal will also amend the provisions of §29.17 of the Mental Hygiene Law to provide such patient wit h the fee amount that is charged under SORA to register a change of address. Finally, the provisions of § 168-b(2) of the Correction Law would be amended to authorize the Division of Criminal Justice Services to release SORA registry information directly to the commissioner of mental retardation or the commissioner of mental health.

Existing law

(1) Section one of this bill would add a new paragraph to subdivision (c) of §33.13 of the Mental Hygiene Law.

(2) Article 6-C of the Correction Law provides for the registration of sex offender who have been convicted of sex offenses which are listed in subdivisions two or three of § 168-a of the Correction Law. However, there is currently no statutory registration requirements for, or sex offender designations of, individuals who have entered a plea accepted by the court or have had a verdict rendered against them, of not responsible by reason of mental disease or defect with respect to any of the sex offenses set forth in such section of the

correction law. Section two, three and four of this bill would amend three separate provisions of such Article 6-C which would provide for the foregoing requirements.

(3) Sections 29.16 and 29.17 of the Mental Hygiene Law currently address issues relative to the discharge or release of individuals who are residents of Department of Mental Hygiene facilities. Section 168-b(2) of the Correction Law, in part, provides authority to the Division of Criminal Justice Services to release SORA registry information to specified entities. Sections five, six and seven of this bill will provide additional notification provisions and information sharing.

Prior legislative history

Sections one, two, three and four of this bill were introduced as S.4835 during the 2003-2004 legislative session. Sections five, six and seven of this bill would constitute new proposed amendments to the Mental Hygiene Law and the Correction Law. In the 2007-2008 legislative session the bill was referred to the Senate Committee on Mental Health and Developmental Disabilities.

Statement in support

(1) With respect to section one of this proposal, the provisions of Article 6-C of the Correction Law which constitutes the Sex Offender Registration Act, or "SORA", was enacted into law in response to public outcry over repeat sex crimes committed by persons having a history of such crimes while residing anonymously in a community. SORA provides for the registration of all sex offenders who are convicted of certain sex crimes, most of which involve offenses with children. Under SORA, these offenders are required to register with the Division of Criminal Justice Services (DCJS) and are given a designation of one of three levels, depending upon the seriousness of the crime for which they had been convicted and other evaluation factors. DCJS provides information on all levels of sex offenders to local law enforcement agencies. In turn, these agencies are allowed to release information on these offenders to the public, in accordance with, and subject to the restrictions and limitations set forth in, the provisions of SORA. OMRDD obtains registrant information that may relate to its consumers from the NYS Division of State Police.

Mental Hygiene Law §33.13 prohibits the disclosure of clinical information, including any information that identifies an individual as receiving services funded by OMRDD, except in situations enumerated in the law. When OMRDD obtains registrant information concerning clients, disclosure of that information is limited by §33.13 of the Mental Hygiene Law. Absent the consent of the consumer with the sex offender designation or a finding of serious and imminent danger to others, such information cannot be disclosed to staff who have no supervisory responsibilities for the individual, other consumers, their family members, or to other regular visitors.

In the interest of safety to other patients and clients, staff and others who may need to know this sex offender information, the Commissioners of OMRDD and OMH will be authorized to release to them

the same information available under article 6-C of the Correction Law from the records of a patient or client.

(2) With respect to sections two, three and four of this bill, the provisions of SORA, set forth in Article 6-C of the Correction Law, require that persons who have been convicted of certain sex offenses to register with DCJS as sex offenders and that DCJS is required to maintain a sex offender registry with specific information concerning convicted sex offenders. However, persons, who have been charged with a sex offense as set forth in SORA and who, with respect to such charges, have entered a plea, accepted by the court, or have had a verdict rendered against them, of not responsible by reason of mental disease or defect, do not fall within the definition of a sex offender and are not required to register with DCJS as a sex offender. Although such individuals have not technically been convicted of a designated sex offense, they arguably continue to pose the same threat to other persons within this state that convicted sex offenders pose to the citizens of this state. Since there doesn't appear to be any constitutional or policy reasons that would prevent these individuals from being subjected to the requirements of SORA, these individuals should be required to register and be subjected to the same provisions of SORA as if they had been convicted of the same sex offenses.

(3) Currently under the provisions of § 168-f of the Correction Law, a registered sex offender is required to register with DCJS no later than ten calendar days after any change of address or any change of his or her status of enrollment, attendance, employment or residence at any institution of higher education. These same provisions apply to registered sex offender's who are residents of a Department of Mental Hygiene facility and who are subsequently discharged or released from such facility. Residents of department facilities, however, undergo a discharge planning process that makes it likely that the intended new address of a facility resident is known at or prior to the time of their discharge or release. In the interest of public safety, this information should be conveyed to DCJS as soon as possible at or prior to the discharge or release of such residents. Sections five, six and seven of this bill will ensure that registered sex offender have properly notified DCJS of their intended new address at or prior to the time that they are discharged or released from the care and custody of the Department of Mental Hygiene.

Budget implications

Unknown at this time.

Legislative history

2005: S.5624 - Passed Senate 2006: S.5624A - Senate Mental Health & Developmental Disabilities Committee. 2007-08: S.3327 - Senate Mental Health & Developmental Disabilities Committee 2009-10: S.4176 - Reported and Committed to Codes

Effective date

This bill would take effect on the one hundred and eightieth day after it shall have become law.