New York State Assembly

 
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A06544 Summary:

A06544 Actions:

A06544 Committee Votes:

Committee:CHILDREN AND FAMILIES   Chair:Hevesi      
DATE:04/18/2023AYE/NAY:17/0  Action: Favorable refer to committee Codes        
Hevesi
Aye
Byrnes
Aye
Davila
Aye
Flood
Aye
Vanel
Aye
Maher
Aye
Jean-Pierre
Aye
McGowan
Aye
Darling
Aye
Pirozzolo
Aye
Anderson
Aye
Clark
Aye
Lunsford
Aye
Meeks
Aye
Gonzalez-Rojas
Aye
Mitaynes
Aye
Chandler-Waterm
Aye

Committee:CODES   Chair:Dinowitz      
DATE:04/25/2023AYE/NAY:20/0  Action: Favorable         
Dinowitz
Aye
Morinello
Aye
Pretlow
Aye
Reilly
Aye
Cook
Aye
Mikulin
Aye
O'Donnell
Excused
Tannousis
Aye
Lavine
Aye
Curran
Aye
Weprin
Aye
Angelino
Aye
Hevesi
Aye
Flood
Aye
Seawright
Excused
Rosenthal
Aye
Walker
Aye
Vanel
Aye
Cruz
Aye
Carroll
Aye
Simon
Aye
Epstein
Aye

A06544 Floor Votes:

A06544 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
 submitted in accordance with Assembly Rule III, Sec 1(f)



 
BILL NUMBER: A6544
 
SPONSOR: Hevesi

 
TITLE OF BILL:
 
An act to amend the family court act, in relation to 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 Acting Chief Administrative Judge upon the recommendation of her
Family Court Advisory and Rules Committee.
 
This measure would amend the Family Court Act ("FCA") to correct an
anomaly in its provisions relating to the sealing and expungement of
records in PINS cases.
 
When Article 3 of the FCA, the juvenile delinquency ("JD").procedure
statute, was enacted nearly four decades ago, applicable provisions of
the Criminal Procedure Law deemed essential for due process and fairness
were incorporated into it. However, the same was not done as to the
remaining provisions of FCA Article 7, which thereafter would apply only
to PINS cases. Among the most glaring omissions is the provision regard-
ing confidentiality of records. Article 3, modeled after CPL § 160.50,
which has afforded youth accused of JD, like adults accused of crimes,
far more protections than those available to the subjects of PINS
proceedings. Likewise, the PINS statute has not yet been modified to
incorporate a 2019 amendment that provides automatic sealing of records
of petty offense-level marijuana offenses, notwithstanding the fact that
violations of Penal Law § 221.05 are specifically included in FCA § 712
as grounds for PINS.
 
Professor Merril Sobie noted this disparity in his Practice Commentaries
to FCA § 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 " 
the 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.
 
Most recently, he has noted the ever more serious, anomalous disparity
between the confidentiality protections afforded criminal records and
far more limited protections afforded to both JD and PINS records:
 
In recent years the New York Legislature has enacted criminal procedure
law measures to strengthen confidentiality and to seal and expunge many
records, thereby barring or limiting accessibility to less egregious
criminal findings. Astonishingly, the measures have excluded the young.
Today, Family Court juvenile delinquency records (crimes committed by
children) and status offense records (non-criminal youthful behavior,
such as truancy) are far more open and available than similar adult
criminal files.
 
few examples illustrate the dichotomy. The records of adults who have
formerly been convicted of cannabis possession have been expunged (part
of the legalization of marijuana). However, children below the age of 16
are excluded. See FCA § 712. Even cases where the child had been found
to be innocent are never sealed remaining open together with cases where
the child has been found to be guilty.  Similarly, the records of a
child who has been accused of illegal noncriminal behavior, such as
truancy, remains unsealed indefinitely and hence widely available indef-
initely.
 
M. Sobie, "A Life Sentence for Children: NY's Antiquated Prejudicial
Juvenile Justice Records Provisions," NYLJ, Dec. 16, 2021.
 
This measure would correct that anomaly. First, closely tracking section
375.1 of the FCA and section 160.50 of the CPL, the measure would amend
FCA § 783 to provide that court records in actions terminated favorably
to the accused - i.e., actions diverted (diverted without petition),
withdrawn or dismissed - would automatically be expunged. In light of
the 2019 amendment to Criminal Procedure Law § 160.50(3) (L. 2019, c.
131), providing that convictions for petty offense-level marijuana
possession under Penal Law § 221.05 are deemed to be terminations of
actions in favor of the accused requiring mandatory sealing, PINS find-
ings for violations of Penal Law § 221.05 would be subject to automatic
expungement following the conclusion of any disposition or period of
extension. Likewise, since the Federal Trafficking Victims Protection
Act defines "severe forms of trafficking in persons," inter alia, as
"sex trafficking in which ...the person induced to perform such act has
not attained 18 years of age," the measure would require expungement at
the conclusion of any disposition or extension based upon a finding for
a prostitution offense under Penal Law § 230.00. Notices would be
required to be sent to presentment or law enforcement agencies, if
either have been involved, directing them to expunge their records as
well.
 
At the same time, recognizing that designated lead agencies for PINS
diversion, that is, local departments of social services or probation
departments, have certain statutory requirements for internal access to
their records for limited purposes, the notices to those agencies would
be for them to seal their records, thus permitting access simply for
enumerated statuary purposes but barring public access.
 
This measure authorizes designated lead diversion agencies to check
their records if a juvenile returns on a subsequent PINS and, where the
diversion agency is the local Department of Social Services, it may have
access to its own records where necessary for service determinations and
where the Commissioner determines the information is necessary to comply
with Social Services Law § 422-a regarding disclosure of fatality-relat-
ed information.
 
Second, in cases in which a juvenile has been adjudicated a PINS, the
juvenile would be permitted to make a motion for expungement of the
record in the interests of justice at any time subsequent to the conclu-
sion of the period of a disposition. If granted, notices would be sent
to agencies involved in the case to seal their records.  Further, youth
where cases have been favorably terminated prior to the effective date
of the statute would be permitted to move for expungement upon twenty
days' notice. Significantly consistent with Professor Sobie's suggestion
in "A Life Sentence for Children: NY's Antiquated Prejudicial Juvenile
Justice Record Provisions, supra; PINS
 
Records would be required to be automatically expunged once the juvenile
reaches the age of 21, if not expunged sooner, assuming the period of
any disposition has concluded.
 
As under FCA § 375.3, the Family Court would retain its inherent author-
ity 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 Dorothy D.
supra at 215:
 
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 § 191306; Illinois Compiled Stat-
utes § 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 §§ 7B-3200, 3201 (juvenile delinquency
and "undisciplined" children); Arizona Revised Statutes § 13-921; Arkan-
sas Code §§ 927-309 
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, this measure would amend
sections 783 and 784 of the FCA to bar use of PINS records in other
courts. The language in section 783, permitting use of such records in
criminal sentencing proceedings, as well as the reference in section 784
to criminal courts taking action regarding police records, are vestiges
of days when juvenile delinquency and PINS proceedings were both covered
by Article 7 and now are more appropriately applied solely to juvenile
FCA delinquency records. Indeed, these provisions have been incorporated
into Article 3. See FCA §§ 381.2, 381.3(2). This measure appropriately
deletes these provisions from FCA Article 7.
 
The need to keep confidential records of juvenile misbehavior, both
criminal and noncriminal in nature, 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 measure recognizes that non-criminal conduct, the gravamen of PINS
cases, no less than the criminal conduct that forms the basis of juve-
nile delinquency proceedings, needs the protections that have long been
deemed essential to fulfilling the goals of the juvenile justice system.
 
This measure would take effect 90 days after becoming law.
 
 
LEGISLATIVE HISTORY
 
2021-22:A7621A (M/A Hevesi)  
Amended on PIRdg
 
S9391 (Sen Brisport)  
Ref to Children/Families
 
 
LEGISLATIVE HISTORY
 
2019-20:A8021 (M/A. Jaffee)  
Ref to Rules
 
(OCA 46R2)
 
 
LEGISLATIVE HISTORY
 
2017-18: S4766 (Sen Avella)  
Committed to Rules
 
A7552 (M/A Jaffee)  
Passed
 
 
LEGISLATIVE HISTORY
 
2015-16: S5020 (Sen Felder)  
Ref to Children & Families
 
A7049 (M/A Lupardo  
Ref to Children & Families
 
 
LEGISLATIVE HISTORY
 
2014:S6814A (Sen Felder)  
Committed to Rules
 
A9916A (M/A Lupardo)  
Passed
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

A06544 Text:

 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          6544
 
                               2023-2024 Regular Sessions
 
                   IN ASSEMBLY
 
                                     April 14, 2023
                                       ___________
 
        Introduced  by  M.  of  A.  HEVESI -- (at request of the Office of Court
          Administration) -- read once and referred to the Committee on Children
          and Families
 
        AN ACT to amend the family court act,  in  relation  to  expungement  of
          records in persons in need of supervision cases in the family court

          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. Section 783 of the family court act is amended to  read  as
     2  follows:
     3    § 783. Use of [record] records in other court; expungement of records.
     4  (a)  Neither  the  fact  that a person was before the family court under
     5  this article for a hearing nor any confession,  admission  or  statement
     6  made  by  him or her to the court or to any officer thereof in any stage
     7  of the proceeding is admissible as evidence against him or her or his or
     8  her interests in any other court.  [Another court, in imposing  sentence
     9  upon an adult after conviction, may receive and consider the records and
    10  information on file with the family court concerning such person when he
    11  was a child.]
    12    (b)  For  purposes  of this section, "expungement" shall mean that all
    13  official records and papers,  including  judgments  and  orders  of  the
    14  court,  but  not including public court decisions or opinions or records
    15  and briefs on appeal, relating to  the  arrest,  prosecution  and  court
    16  proceedings  and  records  of  the probation service and designated lead
    17  agency, including all duplicates or copies thereof,  on  file  with  the
    18  court,  police department and law enforcement agency, probation service,
    19  designated  lead  agency  and  presentment  agency,  if  any,  shall  be
    20  destroyed  and,  except for records sealed as provided in paragraphs (v)
    21  and (vi) of subdivision (c) of this section, shall not be made available
    22  to any person or public or private agency.
    23    (c) Automatic expungement of records of a proceeding under this  arti-
    24  cle  that is terminated in favor of the respondent. (i) Upon termination
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD08943-01-3
        A. 6544                             2
 
     1  of a proceeding under this article in favor of the respondent, the clerk
     2  of the court shall immediately notify and direct the  directors  of  the
     3  appropriate  probation  department,  designated  lead agency pursuant to
     4  section  seven hundred thirty-five of this article and, if a presentment
     5  agency represented the petitioner in the proceeding, such  agency,  that
     6  the  proceeding  has  terminated in favor of the respondent and that the
     7  records, if any, of such action or proceeding on file with such  offices
     8  shall  be  expunged. If the respondent had been the subject of a warrant
     9  or an arrest in connection with the proceeding, or law  enforcement  was
    10  the  referring  agency  or  petitioner pursuant to section seven hundred
    11  thirty-three of this article, the notice  shall  also  be  sent  to  the
    12  appropriate police department or law enforcement agency. Upon receipt of
    13  such  notification,  the  records  shall  be expunged in accordance with
    14  subdivision (b) of this section. The attorney for the  respondent  shall
    15  be  notified  by the clerk of the court in writing of the date and agen-
    16  cies and departments to which such notifications were sent.
    17    (ii) For the purposes of this section, a proceeding under this article
    18  shall be considered terminated  in  favor  of  a  respondent  where  the
    19  proceeding has been:
    20    (A) diverted prior to the filing of a petition pursuant to subdivision
    21  (g)  of  section seven hundred thirty-five of this article or subsequent
    22  to the filing of a petition pursuant to subdivision (b) of section seven
    23  hundred forty-two of this article; or
    24    (B) withdrawn or dismissed for failure to prosecute, or for any  other
    25  reason at any stage; or
    26    (C)  dismissed  following an adjournment in contemplation of dismissal
    27  pursuant to subdivision (a) of section seven hundred forty-nine of  this
    28  article; or
    29    (D)  resulted  in  an  adjudication  where  the only finding was for a
    30  violation of former section 221.05 or section 230.00 of the  penal  law;
    31  provided,  however,  that with respect to findings under this paragraph,
    32  the expungement required by this section shall not take place until  the
    33  conclusion  of  the  period  of  any disposition or extension under this
    34  article.
    35    (iii) If, with respect to a respondent who had been the subject  of  a
    36  warrant  or an arrest in connection with the proceeding, or law enforce-
    37  ment was the referring agency, the designated lead agency diverts a case
    38  either prior to or subsequent to the filing of  a  petition  under  this
    39  article,  the  designated  lead  agency  shall  notify  the  appropriate
    40  probation service and police department or  law  enforcement  agency  in
    41  writing  of  such  diversion.    Such  notification  may  be  on  a form
    42  prescribed by the chief administrator of the courts.   Upon  receipt  of
    43  such  notification,  the  probation service and police department or law
    44  enforcement agency shall expunge any records in accordance with subdivi-
    45  sion (b) of this section in the same manner as  is  required  thereunder
    46  with respect to an order of a court.
    47    (iv) If, following the referral of a proceeding under this article for
    48  the  filing  of  a  petition,  the  petitioner  or,  if represented by a
    49  presentment agency, such agency, elects not to  file  a  petition  under
    50  this  article, the petitioner or, if applicable, the presentment agency,
    51  shall notify the appropriate probation service and designated lead agen-
    52  cy of such determination. Such notification may be on a form  prescribed
    53  by the chief administrator of the courts and may be transmitted by elec-
    54  tronic  means. If the respondent had been the subject of a warrant or an
    55  arrest in connection with the proceeding, or  law  enforcement  was  the
    56  referring agency, the notification shall also be sent to the appropriate
        A. 6544                             3
 
     1  police  department  or  law  enforcement  agency.  Upon  receipt of such
     2  notification, the records shall be expunged in accordance with  subdivi-
     3  sion  (b)  of  this section in the same manner as is required thereunder
     4  with  respect to an order of a court, provided, however, that the desig-
     5  nated lead agency may have access to its own records in accordance  with
     6  paragraph (v) of this subdivision.
     7    (v)  Where a proceeding has been diverted pursuant to subparagraph (A)
     8  of paragraph (ii) of this subdivision or where  a  proceeding  has  been
     9  referred  for  the filing of a petition but the potential petitioner or,
    10  if represented by a presentment agency, such agency, elects not to  file
    11  a  petition  in  accordance with paragraph (iv) of this subdivision, the
    12  designated lead agency shall seal its records under  this  section,  but
    13  shall have access to its own records solely for the following purposes:
    14    (A)  where  there  is  continuing or subsequent contact with the child
    15  under this article; or
    16    (B) where the information is necessary for such department  to  deter-
    17  mine  what services had been arranged or provided to the family or where
    18  the commissioner determines that the information is necessary  in  order
    19  for  the  commissioner  of  such  department to comply with section four
    20  hundred twenty-two-a of the social services law.
    21    (vi) Records expunged or sealed  under  this  section  shall  be  made
    22  available  to the juvenile or his or her agent and, where the petitioner
    23  or potential petitioner is a parent or other person legally  responsible
    24  for  the juvenile's care, such parent or other person. No statement made
    25  to a designated lead agency by the juvenile or  his  or  her  parent  or
    26  other  person legally responsible that is contained in a record expunged
    27  or sealed under this section shall be admissible in any  court  proceed-
    28  ing,  except  upon  the  consent or at the request, respectively, of the
    29  juvenile or his or her parent or other person  legally  responsible  for
    30  the juvenile's care.
    31    (vii) A respondent in whose favor a proceeding was terminated prior to
    32  the  effective  date  of  this  paragraph may, upon motion, apply to the
    33  court, upon not less than twenty days notice to the petitioner or (where
    34  the petitioner is represented by a presentment agency) such agency,  for
    35  an order granting the relief set forth in paragraph (i) of this subdivi-
    36  sion.  Where  a proceeding under this article was terminated in favor of
    37  the respondent in accordance with paragraph (iii) or (iv) of this subdi-
    38  vision prior to the effective date of this paragraph, the respondent may
    39  apply to the designated lead agency, petitioner or  presentment  agency,
    40  as applicable, for a notification as described in such paragraphs grant-
    41  ing the relief set forth therein and such notification shall be granted.
    42    (d) Motion to expunge after an adjudication and disposition. (i) If an
    43  action  has resulted in an adjudication and disposition under this arti-
    44  cle, the court may, in the interest of justice and upon  motion  of  the
    45  respondent, order the expungement of the records and proceedings.
    46    (ii)  Such  motion  must  be  in  writing and may be filed at any time
    47  subsequent to the conclusion of  the  disposition,  including,  but  not
    48  limited  to,  the expiration of the period of placement, suspended judg-
    49  ment, order of protection or probation or any extension thereof.  Notice
    50  of  such  motion  shall  be served not less than eight days prior to the
    51  return date of the motion upon the petitioner or, if the petitioner  was
    52  represented  by  a presentment agency, such agency. Answering affidavits
    53  shall be served at least two days before the return date.
    54    (iii) The court shall set forth in a written  order  its  reasons  for
    55  granting  or  denying  the  motion.  If the court grants the motion, all
    56  court records, as well as all records in the possession  of  the  desig-
        A. 6544                             4
 
     1  nated  lead  agency,  the  probation service, the presentment agency, if
     2  any, and, if the respondent had been the subject  of  a  warrant  or  an
     3  arrest  in  connection  with  the  proceeding,  or  if the police or law
     4  enforcement  agency  was  the referring agency or petitioner pursuant to
     5  section seven hundred thirty-three  of  this  article,  the  appropriate
     6  police  or  law enforcement agency, shall be expunged in accordance with
     7  subdivision (b) of this section.
     8    (e) Automatic expungement of court records.   All records  under  this
     9  article  shall  be  automatically expunged upon the respondent's twenty-
    10  first birthday unless earlier expunged under this section, provided that
    11  expungement under this paragraph shall not take place until the  conclu-
    12  sion of the period of any disposition or extension under this article.
    13    (f)  Expungement  of court records; inherent power.  Nothing contained
    14  in this article shall preclude the court's use of its inherent power  to
    15  order the expungement of court records.
    16    §  2.  Section  784  of  the  family  court  act is amended to read as
    17  follows:
    18    § 784. Use of police records.  All  police  records  relating  to  the
    19  arrest and disposition of any person under this article shall be kept in
    20  files  separate  and apart from the arrests of adults and shall be with-
    21  held  from  public  inspection,  but  such  records  shall  be  open  to
    22  inspection upon good cause shown by the parent, guardian, next friend or
    23  attorney  of that person upon the written order of a judge of the family
    24  court in the county in which the order was made [or, if  the  person  is
    25  subsequently  convicted  of a crime, of a judge of the court in which he
    26  was convicted].
    27    § 3. This act shall take effect on the ninetieth day  after  it  shall
    28  have become a law.

A06544 LFIN:

 
NO LFIN

A06544 Chamber Video/Transcript: