Relates to risk-level recommendations under the sex offender registration act

This measure would amend the Sex Offender Registration Act (Corrections Law article 6-C) to make it the responsibility of the District Attorney to provide the risk-level recommendation where a defendant is sentenced to a term of imprisonment of ninety days or less.

Upon certification as a sex offender, a defendant becomes subject to a risk-level determination, assessed by the court following a hearing (Correction Law § 168-d (1)). Prior to the risk-level determination hearing, however, both the court and the offender must be given notice of a risk-level recommendation. Where an offender is not sentenced to a term of imprisonment, it is the District Attorney who provides the risk-level recommendation (see Correction Law § 168-d (2), (3)). Where the offender is sentenced to a term of imprisonment, the responsibility to make the recommendation is placed on the Board of Examiners of Sex Offenders (see Correction Law § 168-1 (6)).

A problem routinely arises when the Board of Examiners of Sex Offenders is tasked with the duty to provide a recommendation for offenders sentenced to a term of imprisonment of 90 days or less. The statutory scheme anticipates that the sentencing court will make the risk-level determination for imprisoned offenders 30 days prior to the offender's release but only after receiving the Board's recommendation, which must be made within sixty days prior to the offender's release (see Correction Law § 168-n (1), (2)). Where the court is unable to make a determination prior to the date scheduled for the defendant's release, it must adjourn the hearing until after release and provide the offender with at least 20 days notice (see Correction Law §§ 168-1 (8); 168-n (3)). For jail terms of 90 days or less, or sentences that will be satisfied by the amount of time a defendant has already served, the Board has inadequate time to prepare the risk-level recommendation prior to defendant's release. This causes the court to schedule a hearing date after the defendant's release. As a practical matter, courts cannot foresee when the Board's recommendation will be received and therefore no hearing will be scheduled until after the court receives the recommendation. By then, most defendants serving short terms of incarceration have already been released.

As a result of this cumbersome procedure, the court must notify the offender of the date for the hearing when it often has little information regarding defendant's present location. Usually, the court has no effective means to notify the offender except by mailing a letter to defendant's last known address as reflected in the court file. If the defendant does not appear at the hearing, the court may then only proceed upon a finding of an unexcused failure to appear (see Correction Law §§ 168-d (4), 168-n (6)). Such findings are difficult to make with the limited record available to the court,

leading to significant delays in determining an offender's risk-level status.

Our Advisory Committee urges that the problems encountered under present law can be avoided if the District Attorney is given the responsibility for preparing the risk-level recommendation in cases where a defendant will be incarcerated on a sentence of ninety days or less. District Attorneys already have this obligation for sentences that do not involve imprisonment and will be able to assure the court that the risk-level recommendation is filed prior to the release of the defendant. The court can then provide adequate notice of the hearing date to the defendant and insure that timely risk-level determinations are conducted.

This measure would take effect 90 days after it becomes law.

Legislative History: None. New proposal.