NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A9916A
SPONSOR: Rules (Lupardo) TITLE OF BILL: An act to amend the family court act, in relation to
sealing and expungement of records in persons in need of supervision
cases in the family court
This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of her Family
Court Advisory and Rules Committee.
When Article 3 of the Family Court Act, the juvenile delinquency proce-
dure statute, was enacted over three decades ago (L. 1982, c. 920),
applicable provisions of the Criminal Procedure Law (CPL) deemed essen-
tial for due process and fairness were incorporated into its text.
However, similar provisions were not introduced in the remaining
provisions of Article 7 of the Family Court Act, which from that point
onward applied only to Persons in Need of Supervision (PINS) cases. One
of the most glaring omissions is the provision regarding confidentiality
of records. Article 3, modeled after CPL 160.50, has afforded youth who
are accused of juvenile delinquency, like adults accused of crimes, far
more protections than those who are the subjects of PINS proceedings.
Professor Merril Sobie noted this disparity in his Practice Commentaries
to Family Court Act § 751:
(Family Court Act) Article 7, unlike Article 3 (the juvenile delinquency
statute), does not provide for the automatic sealing of records when a
petition is dismissed or withdrawn (see Section 375.1). Hence, the
records remain relatively open, subject only to the generalized, impre-
cise (Family Court Act) Section 166 stipulation that "(t)he records of
any proceeding in the family court shall not be open to indiscriminate
public inspection". Ironically, children who are falsely accused of
non-criminal "status offense" conduct are afforded less protection than
youths who are accused of engaging in criminal activities.
We submit this measure to correct that imbalance. First, closely track-
ing section 375.1 of the Family Court Act and CPL 160.50, the measure
would amend section 783 of the Family Court Act to provide that court
records in actions terminated favorably for the accused - that is, cases
that had been adjusted (diverted without petition), withdrawn or
dismissed -- would automatically be sealed. Notices would be required to
be sent to probation departments, designated lead agencies for PINS
diversion and, if presentment or law enforcement agencies have been
involved, to such agencies, directing them to seal their records as
well. The juveniles' attorneys would be required to be notified that the
directives had been sent. Youth whose cases had been favorably termi-
nated prior to the effective date of the statute would be permitted to
move for sealing upon twenty days' notice.
Second, in cases in which a juvenile has been adjudicated as a PINS, the
juvenile would be permitted to make a motion for sealing of the record
in the interests of justice. If granted, notices would likewise be sent
to the agencies involved in the case to seal their records. As in
section 375.3 of the Family Court Act, Family Court would retain its
inherent authority to expunge, rather than simply seal, its records. See
Matter of Dorothy D. v. New York City Probation Department, 49 N.Y.2d
212 (1980)(juvenile delinquency); Matter of Richard S. v. City of New
York, 32 N.Y.2d 592 (1973)(PINS); Matter of Daniel PP., 224 A.D.2d 906
(3d Dept., 1996)(PINS). As the Court of Appeals held in Matter of Doro-
thy D., supra:
That the very existence of such records, despite provisions for confi-
dentiality, may constitute a substantial impediment to entry into insti-
tutions of higher learning, government or private employment, the armed
services, or the professions, cannot be seriously questioned. For this
reason it would be antithetical to the purpose of the Family Court Act
to maintain records which would not benefit society and would result in
bringing unwarranted discrimination to a child's future. (Matter of
Richard S. v. City of New York, 32 N.Y.2d 592, 595-596, 347 N.Y.S.2d 54,
56, 300 N.E.2d 426, 427).
Many states, in fact, include expungement, not simply sealing, as their
mechanism for ensuring the confidentiality of juvenile records. See,
e.g., West's Colorado Revised Statutes § 19-1-306; Illinois Compiled
Statutes § 405/5-915 (juvenile delinquency) and § 405/1-9 (juvenile
court records other than juvenile delinquency); Ohio Revised Code §§
2151.355, 2151.356, 2151.358 (juvenile delinquency and "unruly children"
records); Revised Code of Washington § 13.50.050; Delaware Code §§
1014-1018; North Carolina General Statutes §§ 7B3200, 3201 (juvenile
delinquency and "undisciplined" children); Arizona Revised Statutes §
13-921; Arkansas Code § 9-27-309(b)(1)(A), (b)(2); West's California
Code, Div. 2, C. 2, Art. 22, § 826(a)); Connecticut General Statutes §§
46b-133a,46b-146; West's Florida Statutes § 943.0582; Minnesota Statutes
§ 260B.235(9)); Pennsylvania Consolidated Statutes § 9123); West's Code
of Virginia § 16-1-306).
Finally, recognizing that PINS behavior consists of conduct that would
not be criminal if committed by adults, sections 783 and 784 of the
Family Court Act would be amended to preclude use of PINS records in
other courts. The language in section 783, permitting utilization of
such records in criminal sentencing proceedings, as well as the refer-
ence in section 784 to criminal courts taking action regarding police
records, are vestiges of the days when juvenile delinquency and PINS
proceedings were both covered by Article 7 of the Family Court Act and
are more appropriately applied solely to juvenile delinquency records.
Indeed, these provisions have been incorporated into Article 3. See
Family Court Act §§ 381.2, 381.3(2). This measure appropriately deletes
these provisions from Family Court Act Article 7.
The need to keep records of juvenile misbehavior, both criminal and
noncriminal in nature, confidential has long been a central feature of
the juvenile justice system. As former Chief Justice Rehnquist noted, in
his concurring opinion in Smith v. Daily Mail, 443 U.S. 97, 107 (1979):
It is a hallmark of our juvenile justice system in the United States
that, virtually from its inception at the end of the last century, its
proceedings have been conducted outside of the public's full gaze and
the youths brought before our juvenile courts have been shielded from
publicity. See H. Lou, Juvenile Courts in the United States 131-133
(1927); Geis, Publicity and juvenile Court Proceedings, 30 Rocky
Mt.L.Rev. 101, 102, 116 (1958). This insistence on confidentiality is
born of a tender concern for the welfare of the child, to hide his
youthful errors and "bury them in the graveyard of the forgotten past.'"
In re Gault, 387 U. S. 1, 387 U. S. 24-25 (1967).
This proposal recognizes that non-criminal conduct, the gravamen of PINS
cases, no less than the criminal conduct underlying juvenile delinquency
proceedings, requires the protections that have long been deemed essen-
tial to fulfilling the goals of the juvenile justice system.
This measure, which would have no fiscal impact upon the State, would
take effect 90 days after it shall have become a law.
LEGISLATIVE HISTORY: Senate 6814 (Senator Felder) (advanced to 3rd
Rdg.) Assembly 9916 (Rules-request of M. of A. Lupardo) (reported
referred to Codes)
