1. Statutory authority:

Executive Law Section 243(1) establishes that the State Director of Probation and Correctional Alternatives "shall endeavor to secure the effective application of the probation system and the enforcement of probation laws…" and authorizes the State Director to promulgate rules and regulations governing probation services.

Chapter 568 of the Laws of 2008, effective January 23, 2009, requires the agency heads of the Division of Probation and Correctional Alternatives (DPCA), the Division of Parole (DOP), and the Office of Temporary Disability Assistance (OTDA) to promulgate rules and regulations regarding housing for certain sex offenders.

Specifically, this aforementioned Chapter added Executive Law Section 243(4) to require the State Director of Probation and Correctional Alternatives to promulgate rules and regulations which shall include guidelines and procedures on the placement of probationers who are sex offenders designated as Level 2 or 3 sex offenders pursuant to Article 6-C of the Correction Law, commonly referred to as the Sex Offender Registration Act (SORA). This law further requires that such regulations shall instruct local probation departments to consider certain statutorily enumerated factors when investigating and approving the residence of such offenders during their respective periods of probation.

2. Legislative objectives:

It is the intent of the Legislature in enacting the above statutes that DPCA establish rules, regulations and policies so that probation departments consider certain factors when investigating and approving residences of Level 2 and 3 sex offenders under probation supervision within their jurisdictions.

This new regulatory guideline supports the Legislature's intent to address the challenges to probation departments considering the needs and concerns of the community with respect to investigating and approving housing of certain sex offenders released under probation supervision.

3. Needs and benefits:

At the present time, SORA requires anyone on parole or probation or imprisoned for a sex offense on or after January 21, 1996, to register and provide certain information including their residency location to the New York State Division of Criminal Justice Services (DCJS).

Chapter 568 of the Laws of 2008, in part, amends the Executive Law to set forth minimum factors that must be considered by probation departments when investigating and approving the residence of SORA Level 2 and 3 sex offenders who are under probation supervision within their respective jurisdictions. The statutory factors to be considered by probation departments must include the following:

(1) the location of other sex offenders required to register pursuant to the sex offender registration act, specifically whether there is a concentration of registered sex offenders in a certain residential area or municipality;

(2) the number of registered sex offenders residing at a particular property;

(3) the proximity of the entities with vulnerable populations;

(4) accessibility to family members, friends or other supportive services, including but not limited to locally available sex offender treatment programs with preference for placement of such individuals into programs that have demonstrated effectiveness in reducing sex offender recidivism and increasing public safety; and

(5) the availability of permanent, stable housing in order to reduce the likelihood that such offenders will be transient.

As a result of the new statute, DPCA is required to promulgate regulations setting forth at a minimum these new factors, and the probation departments are required to consider them when investigating and approving residence of SORA Level 2 and 3 probationers.

This new Part is being proposed in order to promote the safety of the public and to help address the unique housing needs of SORA Level 2 and 3 probationers. The general well-being of the public is best safeguarded if sex offenders are placed in appropriate available housing. Chapter 568 of the Laws of 2008 provides that probation departments need to consider concentrations of registered sex offenders and the proximity of available housing to entities with vulnerable populations when investigating and approving housing placements for these aforementioned sex offenders. Consideration of the individual's immediate housing needs and these factors are intended to protect the public. Meanwhile, consideration of factors such as the accessibility to family members, friends or other supportive services, including available sex offender treatment programs, is intended to prevent recidivism by providing sex offenders with suitable housing and support. Chapter 568 of the Laws of 2008 was designed to balance the safety interests of the public, the statutory obligations of probation departments in monitoring such individuals, and the housing needs of sex offenders. This Chapter was intended to lead to a comprehensive State approach that will protect the public and better ensure proper investigation and careful consideration and decision-making with respect to suitable housing for these SORA Level 2 and 3 offenders. Accordingly, it is appropriate that our proposed DPCA regulation in this area implementing Chapter 568 of the Laws of 2008 be effective immediately upon adoption.

4. Costs:

There may be some fiscal impact as a result of the proposed rule. However, any increase in administrative costs to probation departments is a result of Chapter 568 of the Laws of 2008 and not this proposed rule. This measure complies with the statutory requirements to identify factors which ought to be considered when investigating and approving residences of Level 2 and 3 sex offenders and is consistent with the new law's requirement that DPCA provide instruction in this area.

Probation departments routinely conduct pre-sentence investigations and reports for criminal courts as to certain defendant's who are before the court for sentencing, which include information as to residency and/or living arrangement. As part of their supervision function, case planning occurs on all probationers and monitoring of terms and conditions of release. When necessary, probation departments seek court direction as to allowable/permissible residence of a probationer and provide court documentation and pursue violations to address noncompliance. While the new law establishes that local probation departments must consider certain statutory factors when investigating and approving residence of SORA Level 2 and 3 probationers and that DPCA must promulgate regulatory guidelines and procedures in this area, our regulations parallel the law and while there is additional instruction and other factors which are recommended to be utilized, our expansion is viewed as consistent with the law's intent as to DPCA promulgating regulations in this area, good professional practice and there is considerable flexibility provided with respect to implementation. It is recognized that no single factor is dispositive. The usage of the word "should" with respect to certain actions in several provisions is meant to encourage and provide guidance or instruction as to good professional practice but not mandate its utilization. Many departments already take such factors into consideration and follow such recommended procedures. Overall, numerous probation departments have relayed that our proposed regulatory content include other factors which are manageable and not burdensome.

Noteworthy, as for considering certain statutory factors as to location, concentration, and number of other sex offenders, while there already exists a Sex Offender Registry which is accessible to all probation departments, a new technology, Critical Infrastructure Response Information System (CIRIS) mapping application provides a wealth of data including that of a geographic nature involving registered sex offenders and school data to support public safety efforts within New York State. CIRIS was developed by the NYS Office of Cyber Security and Critical Infrastructure Coordination (CSCIC). It is being made available, free of charge, to local probation departments via the Integrated Justice Portal and will provide probationer-specific GIS mapping capability. Utilization of CIRIS Mapping will provide greater operational efficiency to departments as a supervisory tool with respect to considering location and number of other SORA registered sex offenders when conducting investigations and approving residence of SORA Level 2 and 3 sex offenders under probation supervision. Free regional training in CIRIS mapping recently has been offered at three sites and already conducted in Albany and Onondaga Counties for interested probation departments. Currently, our agency is working with CSCIC and DCJS to provide appropriately trained probation officers access to CIRIS. Additional trainings are being scheduled for the month of March 2009 with the intent to have every department trained and given access to CIRIS. As of March 10, 2009, approximately 22 probation departments out of 58 have been trained. Although there may be some increased cost to localities as the result of the new law, such costs may be offset by the efficiency of using the CIRIS tool, rather than more labor intensive methods of determining the whereabouts of offenders.

5. Local government mandates:

This proposed rule codifies the specific factors that must be considered by probation departments when investigating and approving the residence of a SORA Level 2 or 3 probationer and adds pertinent other factors and instruction as authorized by Chapter 568 of the Laws of 2008 and specifically new Executive Law Section 243(4).

6. Paperwork:

This proposed rule does not specify any new form, but encourages probation departments to summarize their findings to the court with a recommendation. Flexibility is given as to how this is done. As probation departments typically submit relevant written documentation to courts as part of monitoring probationers, paperwork in this area ought to be part of regular business activities and minimal.

7. Duplication:

The proposed rule does not overlap, or conflict with any existing State or federal requirements. It duplicates, as necessary, certain required factors mentioned above that must be considered pursuant to Chapter 568 of the Laws of 2008.

8. Alternatives:

No significant alternatives were considered. Chapter 568 of the Laws of 2008 required that DPCA promulgate rules and regulations that include guidelines and procedures on placement of SORA Level 2 or 3 probationers and enumerated were specific minimum factors to be considered. DPCA earlier circulated two draft regulatory guidelines to all probation departments. The first draft was more detailed with respect to factors and procedures and the second version, reflected in this final proposed rule, incorporates changes requested from the probation field after DPCA reviewed comments from probation departments on the earlier draft and met with the Executive Committee of the Council of Probation Administrators.

9. Federal standards:

The proposed rule does not conflict with any federal standards.

10. Compliance schedule:

As probation departments routinely monitor those under their supervision and conduct investigations and notify courts as necessitated, it is believed that probation departments will be able to comply with the proposed rule in this area on its effective date.

As to determining concentration of sex offenders which is a statutory factor, probation departments have access to the Sex Offender Registry which contains reported addresses of all SORA registered sex offenders. Additionally, all probation departments have access to the Integrated Justice Portal which will in the imminent future lead to their ability to conduct mapping of probationers, including sex offenders through the aforementioned CIRIS mapping structure. Currently, law enforcement within the 17 Operation Impact counties has access to CIRIS mapping. DPCA has recently forwarded to DCJS, for CIRIS mapping access, the names of over 100 probation professionals which include probation administrators and staff who have been designated by their respective departments to DPCA as sex offender liaisons for address confirmation purposes and most of whom have sex offender caseloads. Additionally, DPCA and DCJS have worked towards establishing statewide web-based conferencing training with respect to CIRIS mapping for all probation departments. Recent communication has been disseminated to all probation departments as to regional training opportunities with specific dates and locations. Two regional trainings have already occurred in the counties of Albany and Onondaga and three more are in the planning stages. CIRIS Mapping will expedite their efforts as to determining location and number of other SORA registered sex offenders in proximity to a Level 2 or 3 sex offender under probation supervision.

1. Effect of rule:

This new proposed rule of the Division of Probation and Correctional Alternatives (DPCA) will have no effect on small businesses. It will have an effect on local governments since probation departments will be required to consider certain factors when investigating and approving residence for sex offenders under probation supervision designated Level 2 or 3 sex offenders pursuant to the Sex Offender Registration Act (SORA). However, consideration of the factors and instruction in this area is required under Chapter 568 of the Laws of 2008.

2. Compliance requirements:

The proposed rule will not have any additional compliance requirements for small businesses. However, as noted above, to comply with Chapter 568 of the Laws of 2008, probation departments will be required to consider certain factors and be instructed with respect to investigating and approving residences of SORA Level 2 and 3 sex offenders under probation supervision of their respective probation departments. Compliance requirements with respect to probation departments are consistent with Chapter 568 of the Laws of 2008. As probation departments routinely monitor those under their supervision and conduct investigations and notify courts as necessitated, it is believed that probation departments will be able to comply with the proposed rule in this area immediately upon adoption.

As to determining concentration of sex offenders which is a statutory factor, probation departments have access to the Sex Offender Registry maintained by the Division of Criminal Justice Services (DCJS) which contains reported addresses of all SORA registered sex offenders. Additionally, all probation departments have access to the Integrated Justice Portal which will in the imminent future lead to their ability to conduct mapping of probationers, including sex offenders through the Critical Infrastructure Response Information System (CIRIS) mapping structure. CIRIS was developed by the NYS Office of Cyber Security and Critical Infrastructure Coordination (CSCIC). Currently, law enforcement within the 17 Operation Impact counties has access to CIRIS mapping. DPCA has also forwarded to DCJS, for CIRIS mapping access, the names of over 100 probation professionals which include probation administrators and staff who have been designated by their respective departments to DPCA as sex offender liaisons for address confirmation purposes and most of whom have sex offender caseloads. Additionally DPCA and DCJS have worked towards establishing statewide web-based conferencing training with respect to CIRIS mapping for all probation departments. Recent communication has been disseminated to all probation departments as to regional training opportunities with specific dates and locations. Two regional trainings have already occurred in the counties of Albany and Onondaga and three more are in the planning stages. CIRIS Mapping will expedite their efforts as to determining location and number of other SORA registered sex offenders in proximity to a Level 2 or 3 sex offender under probation supervision.

3. Professional services:

The proposed rule will not require small businesses or local governments to hire additional professional services.

4. Compliance costs:

There may be some fiscal impact as a result of the proposed rule. However, any increase in administrative costs to probation departments is a result of Chapter 568 of the Laws of 2008 and not this proposed rule. This measure complies with the statutory requirements to identify factors which ought to be considered when investigating and approving residences of Level 2 and 3 sex offenders and is consistent with the new law's requirement that DPCA provide instruction in this area.

Probation departments routinely conduct pre-sentence investigations and reports for criminal courts as to certain defendant's who are before the court for sentencing, which include information as to residency and/or living arrangement. As part of their supervision function, case planning occurs on all probationers and monitoring of terms and conditions of release. When necessary, probation departments seek court direction as to allowable/permissible residence of a probationer and provide court documentation and pursue violations to address noncompliance. While the new law establishes that local probation departments must consider certain statutory factors when investigating and approving residence of SORA Level 2 and 3 probationers and that DPCA must promulgate regulatory guidelines and procedures in this area, our regulations parallel the law and while there is additional instruction and other factors which are recommended to be utilized, our expansion is viewed as consistent with the law's intent as to DPCA promulgating regulations in this area, good professional practice and there is considerable flexibility provided with respect to implementation. It is recognized that no single factor is dispositive. The usage of the word "should" with respect to certain actions in several provisions is meant to encourage and provide guidance or instruction as to good professional practice but not mandate its utilization. Many departments already take such factors into consideration and follow such recommended procedures. Overall, numerous probation departments have relayed that our proposed regulatory content include other factors which are manageable and not burdensome.

Noteworthy, as for considering certain statutory factors as to location, concentration, and number of other sex offenders, while there already exists a Sex Offender Registry which is accessible to all probation departments, the new CIRIS mapping technology and its application provides a wealth of data including that of a geographic nature involving registered sex offenders and school data to support public safety efforts within New York State. It is being made available, free of charge, to local probation departments via the Integrated Justice Portal and will provide probationer-specific GIS mapping capability. Utilization of CIRIS Mapping will provide greater operational efficiency to departments as a supervisory tool with respect to considering location and number of other SORA registered sex offenders when conducting investigations and approving residence of SORA Level 2 and 3 sex offenders under probation supervision. Free regional training in CIRIS mapping recently has been offered at three sites and already conducted in Albany and Onondaga Counties for interested probation departments. Currently, our agency is working with CSCIC and DCJS to provide appropriately trained probation officers access to CIRIS. Additional trainings are being scheduled for the month of March 2009 with the intent to have every department trained and given access to CIRIS. As of March 10, 2009, approximately 22 probation departments out of 58 have been trained. Although there may be some increased cost to localities as the result of the new law, such costs may be offset by the efficiency of using the CIRIS tool, rather than more labor intensive methods of determining the whereabouts of offenders.

5. Economic and technological feasibility:

All probation departments have the economic and technological ability to comply with these regulations.

6. Minimizing adverse impact:

There will be no adverse economic impact on small businesses, and while there may be some economic impact on the administrative costs of probation departments in carrying out new regulatory requirements in accordance with Chapter 568 of the Laws of 2008, DPCA sought and incorporated professional input from probation departments across the state in developing and finalizing a reasonable and workable regulatory guideline in this area which minimized adverse impact upon their probation operations and that could be implemented in a timely manner.

7. Small business and local government participation:

DPCA issued an October 2008 memorandum advising all probation departments of this new Chapter by summarizing the new statutory requirements and providing them advance notice of its scope and that DPCA had the responsibility to issue regulatory guidelines in this area and would be reaching out to probation professionals during this process. Subsequently, DPCA convened a meeting with a small working group of probation practitioners across the state to gather feedback on an internal preliminary draft. This culminated in a draft regulatory guideline which was circulated in November 2008 to all probation departments with a contact person to provide written comments. Thereafter, DPCA executive and program staff met with the Executive Committee of the Council of Probation Administrators (COPA) as to content which led to another revised draft which was again circulated in December 2008 to all probation departments for input. DPCA received favorable comments on this document which led to the document being incorporated in its entirety in this final version.

Lastly, as this proposed rule does not involve small business there has been no participation with small businesses.

1. Types and estimated numbers of rural areas:

This proposed rule will apply to all probation departments, including the 44 departments located within rural jurisdictions of New York State.

2. Reporting, recordkeeping and other compliance requirements; and professional services:

This new proposed rule of the Division of Probation and Correctional Alternatives (DPCA) does not impose specific recordkeeping or reporting requirements upon probation departments. However, to comply with Chapter 568 of the Laws of 2008, probation departments will be required to consider certain factors and be instructed with respect to investigating and approving residences of Sex Offender Registration Act (SORA) Level 2 and 3 sex offenders under probation supervision of their respective probation departments. Compliance requirements with respect to probation departments are consistent with Chapter 568 of the Laws of 2008. As probation departments routinely monitor those under their supervision and conduct investigations and notify courts as necessitated, it is believed that probation departments will be able to comply with the proposed rule in this area immediately upon adoption.

As to determining concentration of sex offenders which is a statutory factor, probation departments have access to the Sex Offender Registry maintained by the Division of Criminal Justice Services (DCJS) which contains reported addresses of all SORA registered sex offenders. Additionally, all probation departments have access to the Integrated Justice Portal which will in the imminent future lead to their ability to conduct mapping of probationers, including sex offenders through the Critical Infrastructure Response Information System (CIRIS) mapping structure. CIRIS was developed by the NYS Office of Cyber Security and Critical Infrastructure Coordination (CSCIC). Currently, law enforcement within the 17 Operation Impact counties has access to CIRIS mapping. DPCA has also forwarded to DCJS, for CIRIS mapping access, the names of over 100 probation professionals which include probation administrators and staff who have been designated by their respective departments to DPCA as sex offender liaisons for address confirmation purposes and most of whom have sex offender caseloads. Additionally DPCA and DCJS have worked towards establishing statewide web-based conferencing training with respect to CIRIS mapping for all probation departments. Recent communication has been disseminated to all probation departments as to regional training opportunities with specific dates and locations. Two regional trainings have already occurred in the counties of Albany and Onondaga and three more are in the planning stages. CIRIS Mapping will expedite their efforts as to determining location and number of other SORA registered sex offenders in proximity to a Level 2 or 3 sex offender under probation supervision.

Moreover, sufficient flexibility is provided to probation departments as to manner and detail when reporting any findings with respect to investigations of residences of SORA Level 2 and 3 probationers to the court where circumstances necessitate judicial action. Additionally, this proposed rule imposes no specific recordkeeping requirements. Lastly, this proposed rule will not require rural probation departments to hire additional professional services.

3. Costs:

There may be some fiscal impact as a result of the proposed rule. However, any increase in administrative costs to probation departments is a result of Chapter 568 of the Laws of 2008 and not this proposed rule. This measure complies with the statutory requirements to identify factors which ought to be considered when investigating and approving residences of Level 2 and 3 sex offenders and is consistent with the new law's requirement that DPCA provide instruction in this area.

Probation departments routinely conduct pre-sentence investigations and reports for criminal courts as to certain defendant's who are before the court for sentencing, which include information as to residency and/or living arrangement. As part of their supervision function, case planning occurs on all probationers and monitoring of terms and conditions of release. When necessary, probation departments seek court direction as to allowable/permissible residence of a probationer and provide court documentation and pursue violations to address noncompliance. While the new law establishes that local probation departments must consider certain statutory factors when investigating and approving residence of SORA Level 2 and 3 probationers and that DPCA must promulgate regulatory guidelines and procedures in this area, our regulations parallel the law and while there is additional instruction and other factors which are recommended to be utilized, our expansion is viewed as consistent with the law's intent as to DPCA promulgating regulations in this area, good professional practice and there is considerable flexibility provided with respect to implementation. It is recognized that no single factor is dispositive. The usage of the word "should" with respect to certain actions in several provisions is meant to encourage and provide guidance or instruction as to good professional practice but not mandate its utilization. Many departments already take such factors into consideration and follow such recommended procedures. Overall, numerous probation departments have relayed that our proposed regulatory content include other factors which are manageable and not burdensome.

Noteworthy, as for considering certain statutory factors as to location, concentration, and number of other sex offenders, while there already exists a Sex Offender Registry which is accessible to all probation departments, the new CIRIS mapping technology and its application provides a wealth of data including that of a geographic nature involving registered sex offenders and school data to support public safety efforts within New York State. It is being made available, free of charge, to local probation departments via the Integrated Justice Portal and will provide probationer-specific GIS mapping capability. Utilization of CIRIS Mapping will provide greater operational efficiency to departments as a supervisory tool with respect to considering location and number of other SORA registered sex offenders when conducting investigations and approving residence of SORA Level 2 and 3 sex offenders under probation supervision. Free regional training in CIRIS mapping recently has been offered at three sites and already conducted in Albany and Onondaga Counties for interested probation departments. Currently, our agency is working with CSCIC and DCJS to provide appropriately trained probation officers access to CIRIS. Additional trainings are being scheduled for the month of March 2009 with the intent to have every department trained and given access to CIRIS. As of March 10, 2009, approximately 22 probation departments out of 58 have been trained. Although there may be some increased cost to localities as the result of the new law, such costs may be offset by the efficiency of using the CIRIS tool, rather than more labor intensive methods of determining the whereabouts of offenders.

4. Minimizing adverse impact:

While there may be some economic impact on the administrative costs of probation departments in carrying out new regulatory requirements in accordance with Chapter 568 of the Laws of 2008, DPCA sought and incorporated professional input from probation departments across the state, including all rural probation departments, in developing and finalizing a reasonable and workable regulatory guideline in this area which minimized adverse impact upon their probation operations and that could be implemented in a timely manner.

5. Rural area participation:

DPCA issued an October 2008 memorandum advising all probation departments of this new Chapter by summarizing the new statutory requirements and providing them advance notice of its scope and that DPCA had the responsibility to issue regulatory guidelines in this area and would be reaching out to probation professionals during this process. Subsequently, DPCA convened a meeting with a small working group of probation practitioners across the state, inclusive a representative from a rural jurisdiction, to gather feedback on an internal preliminary draft. This culminated in a draft regulatory guideline which was circulated in November 2008 to all probation departments with a contact person to provide written comments. Thereafter, DPCA executive and program staff met with the Executive Committee of the Council of Probation Administrators (COPA) whose members include several rural probation directors as to content which led to another revised draft which was again circulated in December 2008 to all probation departments for input. DPCA received favorable comments on this document, including written and verbal communication from several rural probation departments, which led to the document being incorporated in its entirety in this final version.

A Job Impact Statement has not been prepared for this proposed rule. It is evident from the subject matter of the new Part that it will not materially change the job function of probation professionals. This proposed rule formalizes the placement factors which probation departments must consider when investigating and approving residence of SORA Level 2 or 3 probationers. Investigations as well as judicial notification activities are frequently undertaken as part of probation monitoring the terms and conditions of probationers, particularly registerable sex offenders. Thus the changes will not have any detrimental impact on jobs and employment opportunities of probation departments.