NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A4589A REVISED MEMO 05/31/2013
SPONSOR: O'Donnell (MS) TITLE OF BILL: An act to amend the executive law and the criminal
procedure law, in relation to preventing employment discrimination
against persons whose criminal charges have been adjourned in contem-
plation of dismissal
PURPOSE OR GENERAL IDEA OF BILL:
To bring arrested persons whose criminal charges have been "adjourned in
contemplation of dismissal" within the protection of those provisions or
the Human Rights Law and the Criminal Procedure Law which prevent
employment discrimination against persons who have been arrested but not
convicted or any crime.
SUMMARY OF SPECIFIC PROVISIONS:
Section 1 amends the Human Rights Law, Executive Law Section 296(16), to
provide that licensing agencies, employers, and providers of credit or
insurance shall not make inquiries about, or take adverse actions based
on, an arrest or criminal accusation which has been adjourned in contem-
plation of dismissal (ACD'd). It further provides that individuals whose
criminal charges have been adjourned in contemplation of dismissal shall
not be required to divulge information about these charges in connection
with employment, licensing, credit or insurance. To accomplish this
purpose, the bill provides that a case which has been ACD' d, and has
not been restored to the court calendar, shall not be considered a
"pending case" for purposes of this provision.
Sections 2 and 3 amend the sections of the criminal procedure law which
authorize ACD's, sections 170.55 and 170.56 of the CPL, to provide that
once a case has been ACD'd, employers and governmental agencies which
issue various certificates, licenses, permits or authorizations that are
required by law as a condition of gaining or holding employment in vari-
ous types of positions, businesses and professions, shall treat the ACD
as a termination of the case in the defendant's favor. The intent of
this provision is that an employer or public agency which has suspended
or withheld a permit, license or clearance required by an individual
that is necessary for the individual to gain or retain employment, shall
not consider the matter pending until the final order of dismissal is
entered by the court, but shall proceed upon being notified of the ACD,
as it would proceed upon being notified of a dismissal or acquittal.
This provision would not limit the discretion of public or private
employers who have taken adverse action subsequent to an arrest but
before the ACD was ordered.
EXISTING LAW:
The protections afforded by Section 1 of the bill are already afforded
by existing law to persons whose criminal cases ended in dismissal or
acquittal; in youthful offender adjudications; in convictions of non-
criminal violations or infractions, with certain limited exceptions; and
in convictions of drug offenses where the defendant has completed a drug
treatment program and has satisfied the court that he is deserving of
this protection.
Existing law contains certain exemptions relating to gun licensing and
law enforcement positions. These would be unchanged by the amendments.
The exemptions would apply to persons who received ACD's, as they apply
to the other categories of protected persons.
CPL section 170.55, subd. 8, already contains a provision that "no
person shall suffer any disability or forfeiture" as a result of an
order granting an ACD. It further states that upon final dismissal, "the
arrest and prosecution shall be deemed a nullity and the defendant shall
be restored, in contemplation of law, to the status he occupied before
his arrest and prosecution." The proposed amendment in section 2 of the
bill clarifies the existing statute by specifying that the person who
has been granted the ACD is entitled to restoration of certain legal
rights, albeit less than the sweeping legal protection he will receive
once the dismissal is final. CPL section 170.56, relating to ACDs in
marijuana cases, contains the same language as CPL 170.55 regarding the
arrest and prosecution being "deemed a nullity" upon final dismissal of
the matter.
JUSTIFICATION:
Currently, state laws against criminal record discrimination protect
people whose arrests did not lead to conviction, so long as the charges
are not pending. However, there are no protections for people who have
received adjournments in contemplation of dismissal (ACD's), even though
they will be protected as soon as the dismissal occurs. A case that has
been ACD'd is not yet sealed under the provisions of the Criminal Proce-
dure Law, and therefore is not considered "terminated" in the defend-
ant's favor under the existing statute, but it routinely will be
dismissed and sealed after the passage of six months or a year, depend-
ing on the charge. See CPL §§ 170.55, 170.56, 210.46, 210.47, 215.10.
Under existing law, employers can and often do deny job applicants who
have received an ACD's on the theory that the case is "pending," even
though just a tiny fraction of ACD'd cases are ever restored to the
calendar and prosecuted. This places an unfair and unnecessary obstacle
in the path of job applicants, where the prosecution has already
conceded that the person did nothing that requires pursuit of criminal
charges. Executive Law Section 296(16) should be amended to add
protections against criminal record discrimination for anyone who has
received an adjournment in contemplation of dismissal, unless and until
that person's charges are restored to the court calendar. Additionally,
employers are often required to fire workers or suspend them without pay
for the 6-month or 12-month period of an ACD, because a government agen-
cy that must authorize the employment considers the case "pending" and
withholds the necessary authorization. This is an unnecessary and oner-
ous burden on employees, particularly low-income employees in fast-grow-
ing service professions like health and education. When a case has been
ACD'd, and the employer is willing to retain or reinstate the employee,
a governmental licensing or supervisory agency should not block
retention or reinstatement merely because time must pass before the ACD
"ripens" into a dismissal. Because ACD'd cases almost always result in
dismissal, it would be unfair for the state and its instrumentalities to
continue to deny the individual a source of income, merely because he
was arrested, once the Court has ordered the ACD and thereby determined
that the case does not warrant continued prosecution.
PRIOR LEGISLATIVE HISTORY:
None.
FISCAL IMPLICATIONS:
None.
EFFECTIVE DATE:
90 days.
