NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A7670
SPONSOR: Pretlow TITLE OF BILL: An act to amend the criminal procedure law, in
relation to the sealing of law enforcement records
This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of his Advisory
Committee on Criminal Law and Procedure.
This measure would amend the Criminal Procedure Law to clarify that law
enforcement records are subject to conditional sealing pursuant to
section 160.58 and post-conviction sealing pursuant to section 160.59,
notwithstanding that law enforcement may access those records when
acting within the scope of their law enforcement duties.
The Criminal Procedure Law provides for sealing criminal records in
several circumstances, including when a criminal action terminates in
favor of an accused (CPL 160.50), upon conviction of a non-criminal
offense (CPL 160.55), after successful judicial diversion (CPL 160.58)
and after a successful motion to seal certain convictions ten years
after sentence (CPL 160.59). In each of these instances, the court sends
a sealing notice to the appropriate law enforcement agency. Law enforce-
ment agencies, however, do not accept sealing notices where the basis of
the sealing is made pursuant to CPL 160.58 (conditional sealing) or
160.59 (on motion ten years after sentence) because these two sealing
statutes do not expressly direct the sealing of law enforcement records.
CPL 160.50 and 160.55, which apply to actions which have either termi-
nated in favor of the accused or result in a conviction for a non-crimi-
nal offense, provide that where the record of an action has been sealed,
the clerk "shall immediately notify the commissioner of the division of
criminal justice services and the heads of all appropriate police
departments and other law enforcement agencies that the action has been
terminated . . ." (emphasis added). Records so sealed may only be made
available under limited conditions (see CPL 160.50(1)(d); CPL
160.55(1)(d); see also Katherine B. v Cataldo, 5 NY3d 196 (2005)
unsealing provisions of CPL 160.50 are strictly construed).
CPL 160.58 and 160.59, on the other hand, provide that when a court
orders sealing "all official records and papers relating to the arrests,
prosecutions, and convictions, including all duplicates and copies ther-
eof, on file with the division of criminal justice services or any court
shall be sealed and not made available to any person or public or
private agency . . . " (CPL 160.58(4); 160.59(8)), and "the clerk of the
court shall immediately notify the commissioner of the division of crim-
inal justice services. . . " (CPL 160.58(5); 160.59(8)). Notably absent
is any reference to law enforcement agencies.
The Legislature apparently did not include a direction to law enforce-
ment agencies to seal records under CPL 160.58 and 160.59 because those
sections affirmatively authorize such agencies to use such records under
certain conditions. Unlike CPL 160.50 and 160.55, there is an expansive
exception in CPL 160.58 and 160.59 that allows a law enforcement agency
to access sealed files "when acting in the scope of their law enforce-
ment duties" (see 160.58(6); 160.59(9)).
Nevertheless, there is a qualitative difference between allowing a law
enforcement agency to have access to sealed records when acting in the
scope of its law enforcement duties and excluding those agencies from
sealing their records in the first instance. Unsealed records can be
accessed for any reason, and no sanction would be incurred if the
records were made available to the press, employment investigative agen-
cies or the public.
This measure would clarify that, upon sealing, law enforcement agencies
are required to seal their records of the arrest and conviction. The
current provisions allowing law enforcement authorities to use sealed
records for law enforcement purposes would be unchanged.
Section one of the measure amends two subdivisions of CPL 160.58.
First, a conforming technical amendment is made to subdivision four
providing that published court opinions and appellate materials are not
subject to sealing, thus bringing this subdivision in line with CPL
160.50 and 160.55. The subdivision is further amended to include the
appropriate police agency and prosecutor's office in the initial seal-
ing. Subdivision five is amended by directing the court to notify the
appropriate police agency and prosecutor's office that the case has been
sealed.
Section two of the measure makes similar amendments to subdivision eight
of CPL 160.58. The subdivision is amended to provide that published
court opinions and appellate materials are not subject to sealing, that
the appropriate police agency and prosecutor's office are subject to
sealing and that the court shall notify them of the sealing.
This measure, which would have no meaningful fiscal impact, would take
effect ninety days after becoming law.
LEGISLATIVE HISTORY:
None. New Proposal.
