Section 168-D. Duties of the court

1. (a) Except as provided in paragraphs
  (b) and (c) of this subdivision, upon conviction of any of the  offenses
  set   forth   in  subdivision  two  or  three  of  section  one  hundred
  sixty-eight-a of this article the court shall certify that the person is
  a sex offender and shall include  the  certification  in  the  order  of
  commitment,  if  any,  and judgment of conviction, except as provided in
  paragraph (e) of subdivision two of section one hundred sixty-eight-a of
  this article. The court shall also advise the sex offender of his or her
  duties under this article. Failure to include the certification  in  the
  order  of  commitment  or the judgment of conviction shall not relieve a
  sex offender of the obligations imposed by this article.
    (b) Where a defendant  stands  convicted  of  an  offense  defined  in
  paragraph (b) of subdivision two of section one hundred sixty-eight-a of
  this  article  or  where  the  defendant  was convicted of patronizing a
  prostitute in the third degree under section 230.04 of the penal law and
  the defendant controverts an allegation that the victim of such  offense
  was  less  than  eighteen  years  of age or, in the case of a conviction
  under section 230.04 of the penal law, less than seventeen years of age,
  the court, without  a  jury,  shall,  prior  to  sentencing,  conduct  a
  hearing,  and the people may prove by clear and convincing evidence that
  the victim was less than eighteen years of age or  less  than  seventeen
  years  of age, as applicable, by any evidence admissible under the rules
  applicable to a trial of the issue of guilt. The court  in  addition  to
  such  admissible  evidence  may  also consider reliable hearsay evidence
  submitted  by  either  party  provided  that  it  is  relevant  to   the
  determination  of the age of the victim. Facts concerning the age of the
  victim proven at trial or ascertained at the time of entry of a plea  of
  guilty  shall be deemed established by clear and convincing evidence and
  shall not be relitigated. At the conclusion of the hearing,  or  if  the
  defendant  does  not  controvert  an  allegation  that the victim of the
  offense was less than eighteen years of age or less than seventeen years
  of age, as applicable, the court must make a finding and enter an  order
  setting  forth the age of the victim. If the court finds that the victim
  of such offense was under eighteen years of age or under seventeen years
  of age, as applicable, the court shall certify the defendant  as  a  sex
  offender,  the  provisions  of  paragraph  (a) of this subdivision shall
  apply and the defendant shall register with the division  in  accordance
  with the provisions of this article.
    (c)  Where  a  defendant  stands  convicted  of  an offense defined in
  paragraph (c) of subdivision two of section one hundred sixty-eight-a of
  this article and  the  defendant  controverts  an  allegation  that  the
  defendant  was  previously  convicted  of  a  sex  offense or a sexually
  violent offense defined in this article or has previously been convicted
  of or convicted for an attempt  to  commit  any  of  the  provisions  of
  section  130.52  or  130.55 of the penal law, the court, without a jury,
  shall, prior to sentencing, conduct a hearing, and the people may  prove
  by  clear  and  convincing  evidence  that  the defendant was previously
  convicted of a sex offense or a sexually violent offense defined in this
  article or has previously been convicted of or convicted for an  attempt
  to commit any of the provisions of section 130.52 or 130.55 of the penal
  law, by any evidence admissible under the rules applicable to a trial of
  the  issue  of  guilt. The court in addition to such admissible evidence
  may also consider reliable hearsay evidence submitted  by  either  party
  provided  that  it  is  relevant  to  the  determination  of whether the
  defendant was previously convicted  of  a  sex  offense  or  a  sexually
  violent offense defined in this article or has previously been convicted
  of  or  convicted  for  an  attempt  to  commit any of the provisions of
  section 130.52 or 130.55 of the penal law.  At  the  conclusion  of  the

  hearing,  or if the defendant does not controvert an allegation that the
  defendant was previously convicted  of  a  sex  offense  or  a  sexually
  violent offense defined in this article or has previously been convicted
  of  or  convicted  for  an  attempt  to  commit any of the provisions of
  section 130.52 or 130.55 of the penal law, the court must make a finding
  and enter an order determining  whether  the  defendant  was  previously
  convicted of a sex offense or a sexually violent offense defined in this
  article  or has previously been convicted of or convicted for an attempt
  to commit any of the provisions of section 130.52 or 130.55 of the penal
  law. If  the  court  finds  that  the  defendant  has  such  a  previous
  conviction, the court shall certify the defendant as a sex offender, the
  provisions  of  paragraph  (a)  of  this subdivision shall apply and the
  defendant shall register  with  the  division  in  accordance  with  the
  provisions of this article.
    2.  Any  sex offender, who is released on probation or discharged upon
  payment of a fine,  conditional  discharge  or  unconditional  discharge
  shall,  prior  to  such  release or discharge, be informed of his or her
  duty to register under this article by the court in which he or she  was
  convicted.  At  the  time  sentence  is imposed, such sex offender shall
  register with the division on a form prepared by the division. The court
  shall require the sex offender  to  read  and  sign  such  form  and  to
  complete  the registration portion of such form. The court shall on such
  form obtain the address where the sex offender expects  to  reside  upon
  his  or  her  release,  and  the  name and address of any institution of
  higher education he or she expects  to  be  employed  by,  enrolled  in,
  attending  or  employed, whether for compensation or not, and whether he
  or she expects to reside in a facility owned  or  operated  by  such  an
  institution,  and  shall  report  such  information to the division. The
  court shall give one copy of the form to the sex offender and shall send
  two copies to the division which shall forward the  information  to  the
  law  enforcement  agencies  having  jurisdiction.  The  court shall also
  notify the district attorney and the sex offender of  the  date  of  the
  determination  proceeding  to  be  held pursuant to subdivision three of
  this section, which shall be held at least forty-five  days  after  such
  notice  is given. 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  court shall also advise the sex offender that he or she has a right
  to a hearing prior to the court's determination, that he or she has  the
  right  to be represented by counsel at the hearing and that counsel will
  be appointed if he or she is financially unable to  retain  counsel.  If
  the  sex  offender applies for assignment of counsel to represent him or
  her at the hearing and counsel was not previously assigned to  represent
  the  sex  offender  in  the  underlying criminal action, the court shall
  determine whether the offender is financially unable to retain  counsel.
  If  such  a finding is made, the court shall assign counsel to represent
  the sex offender pursuant to article eighteen-B of the county law. Where
  the court orders a sex offender released on probation, such  order  must

  include   a   provision  requiring  that  he  or  she  comply  with  the
  requirements of this article. Where  such  sex  offender  violates  such
  provision,  probation  may be immediately revoked in the manner provided
  by article four hundred ten of the criminal procedure law.
    3.  For sex offenders released on probation or discharged upon payment
  of a fine, conditional discharge or unconditional discharge, it shall be
  the duty of the court applying the guidelines established in subdivision
  five of section one hundred sixty-eight-l of this article  to  determine
  the  level  of  notification  pursuant to subdivision six of section one
  hundred sixty-eight-l of this article  and  whether  such  sex  offender
  shall  be  designated  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. At least fifteen days prior to
  the determination proceeding, the district attorney shall provide to the
  court and the  sex  offender  a  written  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  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 court 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. 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.