Provides for the sealing of certain criminal records upon application and qualification; makes provisions for unsealing and for availability of such records to various agencies.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A7030
SPONSOR: Lentol TITLE OF BILL:
An act to amend the correction law, the criminal procedure law and the
executive law, in relation to the sealing of records following
conviction for certain offenses
This measure is being introduced at the request of the Chief Judge of
the State.
This measure would amend the Criminal Procedure Law by adding a new
section 160.65 to provide a second chance to certain persons convicted
of crime in the past by allowing them to apply to a court for an order
sealing their criminal records. Next the measure would amend section
160.55(1) to clarify that sealing records upon a conviction of a petty
offense is authorized in all cases, regardless of the top count of the
accusatory instrument by which an individual was originally charged. The
measure also includes an amendment to section 296(16) of the Executive
Law (part of the State's Human Rights Law) to make it an unlawful
discriminatory practice to inquire about a person's sealed criminal
convictions when such inquiry is in the context of that person's appli-
cation for licensing, employment or the provision of credit or insur-
ance; and the addition of two Unconsolidated Law provisions, one deeming
an inquiry as to a person's past criminal convictions in the context of
such person's application for licensing, employment or the provision of
credit or insurance to be an inquiry exclusively as to those convictions
that have not been sealed, however the inquiry may actually be worded,
with the other assuring all individuals an absolute right publicly to
speak or write about any information they may have concerning another's
past conviction(s), whether sealed or not. Finally, the measure would
amend section 750 of the Correction Law to clarify that the provisions
of Article 23-A, which govern the licensure and employment of persons
previously convicted of criminal offenses, are - with exceptions - not
to be applied where the conviction has been sealed under Article 160 of
the Criminal Procedure Law.
I. Particulars of the proposal.
The principal provisions of this measure are two-fold. First, it would
add to the Criminal Procedure Law a statute, new section 160.65,
expressly authorizing certain individuals convicted of certain criminal
conduct in the past to apply to a court for an order sealing the record
of that crime. Second, it would make it an unlawful discriminatory prac-
tice under the State's Human Rights Law, in most every day circum-
stances, to inquire about past criminal convictions that have thereby
been sealed.
Summary of proposed section 160.65:
1. What is the purpose and effect of a sealing petition under section
160.65? The purpose of such a petition is to give certain past criminal
offenders, i.e., nonviolent individuals whose criminal conduct was so
far in the past as to make them statistically no more likely to commit
future crime than any other person, a means by which to have their crim-
inal record sealed from public view and thereby to relieve them of some
of the economic and social stigma that generally attaches to criminal
offenders even after their debts to the community have been paid. Where
such a petition is granted, all official records and papers relating to
the arrest, prosecution and conviction of the individual benefitting
therefrom must be sealed by the sentencing court and the Division of
Criminal Justice Services and, subject to several exceptions, kept from
public availability. These exceptions make otherwise sealed records
available to: the petitioner or his or her agent; courts and various
State and local public offices defined as "qualified agencies" under
section 835 of the Executive Law acting in the scope of their official
duties; public offices with authority to issue gun licenses; prospective
employers of police and peace officers; the Justice Center for the
Protection of People with Special Needs and officers and agencies over
which the Center exercises oversight; and any other public or private
officers or institutions employing persons who thereby have regular
contact with children or other vulnerable individuals as may be desig-
nated by the Chief Administrator of the Courts.
Where a section 160.65 petition is granted, it will not provide the
petitioner with relief from any forfeiture or disability or other bar
imposed by reason of his or her conviction for the offense the records
of which are to be sealed - although the statute expressly permits a
person filing a sealing petition simultaneously to submit to the court
an application for relief from disabilities under Article 23 of the
Correction Law. Nor will the grant of such a petition bar future use of
such conviction in any future sentencing proceeding or as an element of
an offense in any future criminal proceeding or regulatory action
against petitioner.
2. Who may file a sealing petition and when? Any person who has been
convicted of a single felony with no other criminal record OR of one or
two misdemeanors with no other criminal record may file a petition
provided:
(i) if he or she was convicted of a felony, the conviction must have
occurred at least ten years earlier and may not have been for a violent
felony offense, an offense for which life imprisonment is an authorized
sentence, a sex offense, an offense involving official misconduct or
bribery by a public servant, an offense under section 1192 of the Vehi-
cle and Traffic Law involving driving while under the influence of alco-
hol or drugs or an offense for which violation of section 1192 is an
essential element; or
(ii) if he or she was convicted of one or two misdemeanors and no felo-
nies, such conviction(s) must have occurred at least seven years earlier
and may not have been for a sex offense, an offense involving official
misconduct or bribery by a public servant or an offense under section
1192 of the Vehicle and Traffic Law involving driving while under the
influence of alcohol or drugs.
Notwithstanding these conditions, no person may file a petition unless
he or she has completed whatever sentence or sentences were imposed on
account of his or her conviction(s), including any period of imprison-
ment, the completion of any period of parole, probation, conditional
release or post-release supervision, fulfillment of any restitution
obligation, completion of any period of community service and payment of
all fines and surcharges; and any period of incarceration served by that
person shall toll the ten-year/seven-year waiting periods. Nor may any
person file a petition while a charged criminal offense is pending
against him or her.
2. How often may a section 160.65 petition be filed? Where a person
files such a petition and it is denied, such person must wait at least
two years before he or she may file another petition. Once a section
160.65 petition is granted, the person who filed it may never again file
such a petition. Thus, even if he or she later is convicted of another
crime and would otherwise be eligible to file a petition to seal the
records of that subsequent conviction, he or she will be barred from
doing so.
3. How and where is a section 160.65 petition filed? Where such a peti-
tion is being filed for an order sealing the record of a past conviction
for a felony, the petition must be filed in the superior court in which
the conviction was entered. Where the petition is being filed for an
order sealing the record(s) of one or two past convictions for a misde-
meanor, the petition must be filed in a superior court of the county in
which at least one of such convictions was entered.
Any section 160.65 petition must be accompanied by a $95 filing fee.
4. What is the process a superior court must follow in determining a
section 160.65 petition? Upon receipt of such a petition, the court must
request from DCJS and the FBI the petitioner's updated criminal history
record. If the petitioner meets the criteria requisite to the filing of
a petition, and the conviction records to be sealed relate solely to
misdemeanors, the court must grant the petition and order the records
sealed. If, instead, the conviction record to be sealed relates to a
felony, the court has the discretion to grant or deny the petition.
Before exercising that discretion, the superior court must notify the
local district attorney of the petition, and give him or her between 30
and 60 days to comment on the petition; and the district attorney must
relay notice of the petition to any victim of the felony. The court
entertaining the petition may then hold a hearing to aid its determi-
nation, which must follow consideration of all relevant factors includ-
ing, but not limited to (i) the circumstances/seriousness of the
offense, (ii) the petitioner's character, his or her criminal history
and efforts at rehabilitation, (iii) the impact of sealing upon
petitioner's rehabilitation and successful reentry into the community,
and (iv) any statements made by any victim of petitioner's offense.
Every determination of a section 160.65 petition must be in writing and,
where the determination results from an exercise of the superior court's
discretion, the written determination must set forth the reasons there-
for.
5. Can the records of a conviction sealed upon a section 160.65 petition
be unsealed? Yes. They must immediately be unsealed where the person
convicted is arraigned on the charge of a subsequent felony offense; and
unsealed following conviction of a subsequent misdemeanor offense. Under
both circumstances, however, should the prosecution ultimately result in
termination in favor of the accused, the unsealed records must be
resealed.
Summary of proposed amendment to the Human Rights Law (Executive Law §
296(16))
In addition to authorizing the sealing of past criminal convictions,
this measure amends the Human Rights Law to make it an unlawful discri-
minatory practice under terms of that Law, in connection with an indi-
vidual's prospective licensing or employment, or application for credit
or insurance, to inquire about such individual's past criminal
convictions that have been sealed; or to act adversely to such individ-
ual on account of such convictions. In this respect, the measure merely
expands current prohibitions against inquiry concerning and use of know-
ledge about past criminal prosecutions terminated in an individual's
favor; about youthful offender adjudications; about past violation
convictions; and about certain past drug convictions that have been
sealed from public view. Critically, the measure expands present
exceptions to the protections of section 296(16) for the benefit of
officers and agencies over which the Justice Center for the Protection
of People with Special Needs exercises oversight and officers, insti-
tutions, etc., employing persons who thereby have regular contact with
children or other vulnerable persons as designated by the Chief Adminis-
trator of the Courts. Thus employers whose employees have regular
contact with vulnerable populations will not be barred from inquiring
about a job applicant's past criminal history, including any convictions
that may have been sealed pursuant to the other provisions of this meas-
ure.
There are three other elements to this measure. First, the measure
assures all individuals an absolute right publicly to speak or write
about any information they may have concerning another's past
conviction(s), whether sealed or not. Thus, sealing, as envisioned by
this measure, does not threaten public discourse, whether through the
media or otherwise, as to a person's criminal history where that history
is public knowledge. The only obstacle imposed by this measure is to
inquiry as to that criminal history by a prospective employer or someone
in position to grant a license or credit or some other form of benefit,
and their use of that history as a factor in determining whether to
provide a job or other benefit.
Second, the measure not only bars use of sealed criminal history infor-
mation, making it an unlawful discriminatory practice to inquire about
the past criminal activity to which it relates, it spares a person whose
past criminal conviction has been sealed from ever being placed in the
position of having to lie when improperly questioned about a sealed
conviction. This measure does sanction an answer that otherwise would be
a lie (i.e., "no, I haven't been convicted"), but, instead, by statuto-
rily deeming any question about past criminal offenses, however it may
be phrased, to be: "have you ever been convicted of an offense where the
records thereof have not been sealed?". Thus, this measure should make
it impossible to ask a question to which a past offender, whose records
have been sealed, should ever have to lie.
Finally, this measure would amend CPL 160.55(1) to clarify that the
terms of that provision, addressed to the sealing of records upon a
conviction of a petty offense, apply in all cases, regardless of the top
count of the accusatory instrument by which an individual was originally
charged. This will counter the practice that has evolved, contrary to
the seeming intent of the current statutory language, whereby the seal-
ing benefit accorded by the section has only been extended to cases
where the top count charged in the original accusatory instrument was a
misdemeanor or felony, but not where the top count was a petty offense.
II. Why this proposal.
The Penal Law sets forth the punishment to be assessed where a person
commits a particular criminal offense. This punishment might include a
fine, conditional discharge, probation or imprisonment. Other laws set
forth further punishments in the case of conviction for certain offenses
such as loss of voting privileges or the ability to sit on a jury. These
punishments are finite, in the sense that at some point they reach an
end: fines are paid, probation is completed, and, in all but the compar-
atively rare instance of certain life sentences, a prison term is
served. A certificate of relief from civil disabilities can be procured.
We appropriately describe the person who satisfies his or her sentence
as having paid his or her.debt to society. But that's a technical obser-
vation. The real question is when, if ever, do we spare that person of
the public stigma that also attached to his or her criminal conviction
and punishment?
Some would say, "you can't change history." That once a person is
convicted of a crime, and is punished therefor, it's delusional, if not
outright Orwellian, to change the public record so that those facts can
be denied. But this ignores the fact that it is human nature to continue
to look suspiciously at a convicted criminal no matter how long ago his
or her offense, no matter that he or she did his or her penance, no
matter that he or she may have led an exemplary life ever after; and
that this suspicion has real world consequences in the form of hiring
and other economic, housing, social and civil prejudice. Accepting this
fact of human nature, we must ask whether we really want to make of the
convicted offender a permanent pariah in our midst? Is it really the
case that we want his or her punishment to be endless? Is it really in
the community's best interests to keep him or her on the margin, to make
it difficult for him or her to get a good job so that he or she can
achieve personal stability, stay clean, support a family and contribute
to community welfare?
This measure is prompted by the belief that, consistent with community
safety and consistent with responsible attitudes toward the goals of
penology, it is essential that we give greater meaning to the idea that
a person with a prior criminal history can reach a point where he or she
truly has paid his or her debt to society. No humane society should
convert all past offenders into a permanent underclass: to do so ignores
any sense that some proportionality between crime and punishment must be
respected, and, more importantly, it harms the larger community because
it can deprive that community of the contributions a rehabilitated past
offender can make and because, by making it more difficult for past
offenders to integrate into the community, it often generates even
greater costs in terms of encouraging recidivism and greater and more
costly demands upon local social welfare institutions.
Studies show that the longer a convicted person goes without committing
a new offense, the less likely the person will ever commit a new
offense. Where an individual leads a law-abiding life for many years
after a conviction, the risk of that person committing a new crime
reverts to the same level as anyone who has always led a law-abiding
life.{1} Accordingly, this measure reflects a very delicate balance of
considerations. It purges the public record of a select class of past
offenders - but only those people who are so far removed from their
former criminal activity that it is statistically certain that they
represent no greater threat to the community than other people who have
no prior criminal record. Critically, it does this without compromising
law enforcement's ability to use the record of an individual's past
criminal activity, no matter how far in the past, in assessing and pros-
ecuting future criminal activity. Nor does it act to provide relief from
civil disabilities, or bar access to past criminal activity for employ-
ers who would hire individuals for sensitive jobs involving vulnerable
populations (e.g., schools, daycare centers and the like).
This measure seeks no more than to aid a limited class of former misde-
meanants and non-violent felons to get on with their lives by closing
off public view of their criminal histories when they seek employment,
credit and the like. It does this not by authorizing individuals public-
ly to disavow prior criminal activity when to do so would be untrue -
indeed, in this respect, it is unlike some past legislative proposals
that expressly authorized exactly that - but, instead, by limiting
general public access to criminal history records and by barring
prospective employers from discriminating against those individuals on
account of past criminal activity that has been sealed. Critically, the
proposal imposes no limitation on the press or anyone else in the commu-
nity in terms of reporting about or discussing an individual's known
criminal history.
This measure would have a positive impact on the public treasury,
reflecting the revenue it would generate from each $95 petition fee plus
all outstanding fine and surcharge money that might be paid by individ-
uals who, wishing to qualify for the sealing relief this measure would
afford, must satisfy all outstanding financial obligations that were
part of their sentences before they can do so. The measure would take
effect 180 days after it shall have become law and apply to convictions
occurring before, on or after such effective date.
2014 LEGISLATIVE HISTORY:
Senate 7926 (Senator Nozzolio) (referred to Rules)
Assembly 9607 (M. of A. Lentol) (referred to Codes)
{1} Redemption' in an Era of Widespread Criminal Background Checks,
Alfred Blumstein and Kiminori Nakamura, published by the National Insti-
tute of Justice, http://www.nii.gov/journals/263/Paees/redemption.aspx
STATE OF NEW YORK
________________________________________________________________________
7030
2015-2016 Regular Sessions
IN ASSEMBLY
April 20, 2015
___________
Introduced by M. of A. LENTOL -- (at request of the Office of Court
Administration) -- read once and referred to the Committee on Codes
AN ACT to amend the correction law, the criminal procedure law and the
executive law, in relation to the sealing of records following
conviction for certain offenses
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 750 of the correction law is amended by adding a
2 new subdivision 6 to read as follows:
3 (6) "Conviction of one or more criminal offenses" means a conviction
4 or convictions that has or have not been sealed pursuant to article one
5 hundred sixty of the criminal procedure law; and a person who has been
6 "convicted of one or more criminal offenses" means a person whose
7 conviction or convictions has or have not been sealed pursuant to such
8 article. Provided, however, this subdivision shall not apply to a
9 conviction where use of such conviction for a purpose specified in
10 subdivision sixteen of section two hundred ninety-six of the executive
11 law would not constitute an unlawful discriminatory practice pursuant to
12 such subdivision.
13 § 2. The opening paragraph of subdivision 1 of section 160.55 of the
14 criminal procedure law, as amended by chapter 169 of the laws of 1994,
15 is amended to read as follows:
16 Upon the termination of a criminal action or proceeding charging an
17 offense against a person by the conviction of such person of a traffic
18 infraction or a violation, other than a violation of loitering as
19 described in paragraph (d) [or (e)] of subdivision one of section 160.10
20 of this [chapter] article or the violation of operating a motor vehicle
21 while ability impaired as described in subdivision one of section eleven
22 hundred ninety-two of the vehicle and traffic law, unless the district
23 attorney upon motion with not less than five days notice to such person
24 or his or her attorney demonstrates to the satisfaction of the court
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD05651-01-5
A. 7030 2
1 that the interests of justice require otherwise, or the court on its own
2 motion with not less than five days notice to such person or his or her
3 attorney determines that the interests of justice require otherwise and
4 states the reasons for such determination on the record, the clerk of
5 the court wherein such criminal action or proceeding was terminated
6 shall immediately notify the commissioner of the division of criminal
7 justice services and the heads of all appropriate police departments and
8 other law enforcement agencies that the action has been terminated by
9 such conviction. Upon receipt of notification of such termination:
10 § 3. The criminal procedure law is amended by adding a new section
11 160.65 to read as follows:
12 § 160.65 Sealing the record of a conviction.
13 1. Petition for sealing; when petition may be made. Subject to the
14 provisions of this section, a person may petition a superior court to
15 seal the record of his or her conviction for a past criminal offense or
16 offenses provided he or she has brought no such petition in the preced-
17 ing two years and:
18 (a) such person has been convicted of not more than one crime, at
19 least ten years have elapsed since such person was convicted of that
20 crime and that crime was a felony offense other than (i) a violent felo-
21 ny offense as defined in subdivision one of section 70.02 of the penal
22 law, (ii) any offense for which a term of life imprisonment is author-
23 ized, (iii) an offense specified in article one hundred thirty or two
24 hundred sixty-three of the penal law, (iv) an offense specified in arti-
25 cle one hundred ninety-five or two hundred of the penal law where the
26 petitioner was a public servant at the time of the offense, (v) an
27 offense specified in section eleven hundred ninety-two of the vehicle
28 and traffic law, or (vi) any crime specified in the penal law for which
29 a violation of any provision of section eleven hundred ninety-two of the
30 vehicle and traffic law is an essential element; or
31 (b) such person has not been convicted of a felony, at least seven
32 years have elapsed since such person was last convicted of a misdemeanor
33 and he or she has been convicted of not more than two misdemeanors
34 neither of which was (i) an offense specified in article one hundred
35 thirty or two hundred sixty-three of the penal law, (ii) an offense
36 specified in article one hundred ninety-five or two hundred of the penal
37 law where the petitioner was a public servant at the time of the
38 offense, or (iii) an offense specified in section eleven hundred nine-
39 ty-two of the vehicle and traffic law. Notwithstanding the foregoing,
40 in no event may a person bring a petition under this section unless he
41 or she has completed any and all sentences he or she received on account
42 of such conviction or convictions. Where a person has been convicted of
43 a criminal offense under federal law or the law of another state, and
44 such conviction would constitute a felony under the penal law of this
45 state, such person may not bring a petition under this section; and
46 where such conviction would constitute a misdemeanor, it shall be count-
47 ed for purposes of this paragraph as if it were a misdemeanor under the
48 penal law of this state.
49 For purposes of this section, a person shall have completed a sentence
50 when he or she has served in full any term of imprisonment and finished
51 any term or period of parole, probation, conditional release and post-
52 release supervision; made all required restitution; completed all
53 required community service; paid all fines and surcharges assessed,
54 including those that were deferred and made subject to collection in the
55 same manner as a civil judgment pursuant to subdivision five of section
56 420.40 of this chapter; and otherwise satisfied all conditions imposed
A. 7030 3
1 by the sentencing court. Further, the periods of time specified in para-
2 graphs (a) and (b) of this subdivision shall be tolled by any period
3 from the date of sentence to the date when the petitioner was last
4 released from any period of incarceration on account of the conviction
5 or convictions for which sealing is sought.
6 No person may bring a petition under this section while any charged
7 criminal offense is pending against him or her and no person may have
8 more than one such petition granted during his or her lifetime. The
9 right to bring a petition hereunder may not be waived.
10 2. Court to which petition under this section must be brought; filing
11 fee; responsibilities of the court. (a) A petition to seal the record of
12 a conviction for a criminal offense specified in paragraph (a) of subdi-
13 vision one of this section must be brought in the superior court in
14 which the conviction was entered. A petition to seal the record of a
15 conviction for a criminal offense specified in paragraph (b) of subdivi-
16 sion one of this section must be brought in a superior court of the
17 county in which the court in which the conviction was entered is located
18 or, if the petition is to seal the records of more than one such
19 conviction, the petition may be brought in the superior court of any
20 county in which a court in which one or more of such convictions was
21 entered is located. No court may accept a petition under this section
22 unless it is accompanied by a filing fee of ninety-five dollars payable
23 to the clerk of the court; provided, however, such fee may be waived
24 where, due to the petitioner's indigence, payment of the filing fee
25 would work an unreasonable hardship on the person or his or her immedi-
26 ate family.
27 (b) The superior court that receives a petition under paragraph (a) of
28 this subdivision shall request from the division of criminal justice
29 services and the federal bureau of investigation an updated criminal
30 history record of the petitioner, including any sealed or suppressed
31 information. Upon receipt of the request, the division of criminal
32 justice services shall provide a criminal history report and shall also
33 provide a report from the federal bureau of investigation regarding any
34 criminal history information that occurred in other jurisdictions. The
35 division is hereby authorized to receive such information from the
36 federal bureau of investigation for this purpose.
37 (c) (1) Provided the petition complies with the provisions of subdivi-
38 sion one of this section and the petitioner has been convicted of a
39 felony offense, the court, in its discretion and in the interests of
40 justice, may grant the petition and order the sealing of the records of
41 the petitioner's conviction or may dismiss the petition. If, however,
42 the petitioner has not been convicted of any felony offense, the court
43 must grant the petition and order the sealing of the records of all of
44 the petitioner's convictions for offenses within the meaning of subdivi-
45 sion one of section 10.00 of the penal law. Where the court grants a
46 petition under this section, the court must also order the sealing of
47 the records of any non-criminal offense scheduled in the petition that
48 is more than seven years old.
49 (2) Where the court has discretion to grant or dismiss a petition
50 pursuant to subparagraph one of this paragraph, it must, before making
51 its determination, notify the district attorney of the county in which
52 the petitioner was convicted of a felony and advise that the court is
53 considering sealing the records of that conviction. The district attor-
54 ney must be given a reasonable opportunity, which shall not be less than
55 thirty days nor more than sixty days, in which to comment and submit
56 materials to aid the court in determining the petition. The district
A. 7030 4
1 attorney must provide notice to the victim, if any, of the petition for
2 sealing by mailing written notice to the victim's last-known address.
3 For purposes of this paragraph, "victim" means any person who has
4 sustained physical or financial injury to person or property as a direct
5 result of a felony the record of which the petitioner is asking the
6 court to seal.
7 (3) At the request of the petitioner or the district attorney of a
8 county who receives notification pursuant to subparagraph two of this
9 paragraph, or in its own discretion, the court may conduct a hearing to
10 consider and review any relevant evidence, including testimony of
11 witnesses, offered by either party that would aid the court in determin-
12 ing whether to order the sealing of the records of the petitioner's
13 convictions.
14 (4) Where the court has discretion to grant or dismiss a petition
15 pursuant to subparagraph one of this paragraph, it must consider any
16 relevant factors, including but not limited to: (i) the circumstances
17 and seriousness of the offense that resulted in the conviction; (ii) the
18 character of the petitioner, including what steps he or she has taken
19 since the time of his or her offense toward personal rehabilitation,
20 including treatment, work, school, or other personal history that demon-
21 strates rehabilitation; (iii) the petitioner's criminal history; (iv)
22 the impact of sealing the petitioner's records upon his or her rehabili-
23 tation and his or her successful and productive reentry and reinte-
24 gration into society, and upon public safety; and (v) any statements
25 made by any victim of an offense committed by the petitioner where there
26 was in fact a victim of such offense.
27 (5) When a court orders the sealing of the record of a petitioner's
28 conviction or convictions, the clerk of such court shall immediately
29 notify the commissioner of the division of criminal justice services,
30 the heads of all appropriate police departments and all other law
31 enforcement agencies, and any court that sentenced the petitioner
32 following conviction of an offense the record of which must be sealed,
33 of such order. Thereupon, all official records and papers relating to
34 the petitioner's arrests, prosecutions and convictions, including all
35 duplicates and copies thereof, on file with the division or any court
36 shall be sealed and not made available to any person or public or
37 private agency; provided, however, the division shall retain any finger-
38 prints, palmprints, photographs or digital images of the same.
39 (6) Notwithstanding subparagraph five of this paragraph, records
40 sealed pursuant to such subparagraph shall be made available to: (i) the
41 petitioner or his or her designated agent; (ii) qualified agencies, as
42 defined in subdivision nine of section eight hundred thirty-five of the
43 executive law, and federal and state law enforcement agencies, when
44 acting within the scope of their law enforcement duties; (iii) any state
45 or local officer or agency with responsibility for the issuance of
46 licenses to possess guns, when the petitioner has made an application
47 for such a license; (iv) any prospective employer of a police officer or
48 peace officer as those terms are defined in subdivisions thirty-three
49 and thirty-four of section 1.20 of this chapter, in relation to an
50 application for employment as a police officer or peace officer,
51 provided, however, that every person who is an applicant for the posi-
52 tion of police officer or peace officer shall be furnished with a copy
53 of all records obtained under this subparagraph and afforded an opportu-
54 nity to make an explanation thereof; (v) the justice center for the
55 protection of people with special needs, in relation to performing its
56 duties under article twenty of the executive law; and (vi) such other
A. 7030 5
1 and further officers, individuals, institutions and agencies, public or
2 private, that employ persons who thereby have regular contact with chil-
3 dren or other vulnerable persons as the chief administrator of the
4 courts may designate, including all officers, individuals, institutions
5 and agencies subject to operation, licensure or certification by a state
6 oversight agency as defined in subdivision four of section five hundred
7 fifty of the execution law or otherwise subject to oversight or regu-
8 lation by the justice center for the protection of people with special
9 needs.
10 3. Determination to be in writing. Any determination granting or
11 dismissing a petition pursuant to subdivision one of this section must
12 be in writing and, where the court has discretion to make such determi-
13 nation, shall state the reasons for that determination.
14 4. No relief of disabilities. A determination granting a petition
15 pursuant to subdivision one of this section shall not relieve the peti-
16 tioner of any forfeiture or disability, or remove any bar to his or her
17 employment, automatically imposed by law by reason of his or her
18 conviction of the offense the records of which are thereby sealed
19 provided, however, a petition pursuant to this section for sealing the
20 record of a conviction may be accompanied by an application for a
21 certificate of relief from disabilities under article twenty-three of
22 the correction law, in which event the court must determine such appli-
23 cation and such determination shall be without regard to the determi-
24 nation of the petition for sealing. Nothing in this section shall
25 prohibit use of the conviction of an offense, the records of which have
26 been sealed hereunder, in any sentencing proceeding, or as an element of
27 an offense in any subsequent criminal proceeding or regulatory action
28 commenced against the petitioner by the state or any political subdivi-
29 sion thereof.
30 5. Unsealing of sealed records. Where records of a person's conviction
31 or convictions have been sealed pursuant to this section, such record or
32 records shall be unsealed: (a) immediately upon such person being subse-
33 quently arraigned on the charge of any felony offense under the law of
34 this state, or a criminal offense under federal law or the law of anoth-
35 er state that, under the penal law of this state, would constitute a
36 felony offense; or (b) immediately upon such person being subsequently
37 convicted of any misdemeanor offense under the law of this state, or a
38 criminal offense under federal law or the law of another state that,
39 under the penal law of this state, would constitute a misdemeanor
40 offense. Provided, however, that if such new arrest, charge or
41 conviction (following an appeal therefrom) results in a termination in
42 favor of the accused as defined in subdivision three of section 160.50
43 of this article or in a conviction for a non-criminal offense as
44 described in section 160.55 of this article, such unsealed records shall
45 again be sealed as provided in subparagraph five of paragraph (c) of
46 subdivision two of this section.
47 § 4. Subdivision 16 of section 296 of the executive law, as separately
48 amended by section 3 of part N and section 14 of part AAA of chapter 56
49 of the laws of 2009, is amended to read as follows:
50 16. It shall be an unlawful discriminatory practice, unless specif-
51 ically required or permitted by statute, for any person, agency, bureau,
52 corporation or association, including the state and any political subdi-
53 vision thereof, to make any inquiry about, whether in any form of appli-
54 cation or otherwise, or to act upon adversely to the individual
55 involved, any arrest or criminal accusation of such individual not then
56 pending against that individual which was followed by a termination of
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1 that criminal action or proceeding in favor of such individual, as
2 defined in subdivision two of section 160.50 of the criminal procedure
3 law, or by a youthful offender adjudication, as defined in subdivision
4 one of section 720.35 of the criminal procedure law, or by a conviction
5 for a violation sealed pursuant to section 160.55 of the criminal proce-
6 dure law or by a conviction which is sealed pursuant to section 160.58
7 of the criminal procedure law, or by a conviction which is sealed pursu-
8 ant to section 160.65 of the criminal procedure law, in connection with
9 the licensing, employment or providing of credit or insurance to such
10 individual; provided, further, that no person shall be required to
11 divulge information pertaining to any arrest or criminal accusation of
12 such individual not then pending against that individual which was
13 followed by a termination of that criminal action or proceeding in favor
14 of such individual, as defined in subdivision two of section 160.50 of
15 the criminal procedure law, or by a youthful offender adjudication, as
16 defined in subdivision one of section 720.35 of the criminal procedure
17 law, or by a conviction for a violation sealed pursuant to section
18 160.55 of the criminal procedure law, or by a conviction which is sealed
19 pursuant to section 160.58 of the criminal procedure law, or by a
20 conviction which is sealed pursuant to section 160.65 of the criminal
21 procedure law. The provisions of this subdivision shall not apply to the
22 licensing activities of governmental bodies in relation to the regu-
23 lation of guns, firearms and other deadly weapons or in relation to an
24 application for employment as a police officer or peace officer as those
25 terms are defined in subdivisions thirty-three and thirty-four of
26 section 1.20 of the criminal procedure law; provided further that the
27 provisions of this subdivision shall not apply to an application for
28 employment or membership in any law enforcement agency including any
29 officer, individual, institution or agency subject to oversight or
30 regulation by the justice center for the protection of people with
31 special needs or with any other officer, individual, institution or
32 agency designated by the chief administrator of the courts pursuant to
33 clause (vi) of subparagraph six of paragraph (c) of subdivision two of
34 section 160.65 of the criminal procedure law with respect to any arrest
35 or criminal accusation which was followed by a youthful offender adjudi-
36 cation, as defined in subdivision one of section 720.35 of the criminal
37 procedure law, or by a conviction for a violation sealed pursuant to
38 section 160.55 of the criminal procedure law, or by a conviction which
39 is sealed pursuant to section 160.58 of the criminal procedure law, or
40 by a conviction which is sealed pursuant to section 160.65 of the crimi-
41 nal procedure law.
42 § 5. Whenever, in connection with the licensing, employment or provid-
43 ing of credit or insurance to an individual, any person, agency, bureau,
44 corporation or association, including the state and any political subdi-
45 vision thereof, inquires of such individual if he or she has been
46 convicted of a crime, whether in any form of application or otherwise,
47 such inquiry, regardless of how worded, shall be deemed to be only as to
48 convictions that have not been sealed pursuant to section 160.55, 160.58
49 or 160.65 of the criminal procedure law, and the individual to whom it
50 is directed shall answer accordingly; provided, however, this section
51 shall not apply where the inquiry would not constitute an unlawful
52 discriminatory practice under subdivision 16 of section 296 of the exec-
53 utive law.
54 § 6. Nothing in this act shall bar any person from freely speaking or
55 writing about, or publishing by any other means, any information in his
56 or her possession concerning another person's past criminal conviction
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1 or convictions, notwithstanding that such conviction or convictions may
2 have been sealed pursuant to this act.
3 § 7. This act shall take effect on the one hundred eightieth day after
4 it shall have become a law and shall apply to all convictions occurring
5 prior to, on, and after such effective date.
