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A04925 Summary:

BILL NOA04925
 
SAME ASNo Same As
 
SPONSORO'Donnell
 
COSPNSRWeprin, Seawright
 
MLTSPNSR
 
Amd 160.50, 160.55, 160.58 & 720.35, CP L
 
Clarifies lawful uses of sealed records.
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A04925 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A4925
 
SPONSOR: O'Donnell
  TITLE OF BILL: An act to amend the criminal procedure law, in relation to the use of sealed records   PURPOSE OR GENERAL IDEA OF BILL: This bill would amend the Criminal Procedure Law (CPL) to clarify that no record sealed under these statutes may be used for any purpose unless authorized by law.   SUMMARY OF SPECIFIC PROVISIONS: Section one of the bill amends paragraphs (c) and (d) of subdivision 160.50(1) of the CPL. Section two of the bill amends paragraphs (c) and (d) of subdivision 160.55(1) of the CPL. Section three of the bill amends paragraph 4 of subdivision 160.58 of the CPL. Section four of the bill amends paragraph 6 of subdivision 160.58 of the CPL. Section five of the bill amends subdivision 720.35(2) of the CPL. Section six of the bill is the effective date.   DIFFERENCE BETWEEN ORIGINAL AND AMENDED VERSION (IF APPLICABLE): None.   JUSTIFICATION: New York State has long provided for the sealing of information about certain arrests, convictions and adjudications, because of the recogni- tion that access to that information by employers and others would unfairly prejudice decisions that could have a significant impact on the life of the individuals who had that arrest, conviction or adjudication. The State recognized that this impact would be counterproductive because it would undermine the ability of these individuals to access employ- ment, licensing and other benefits, thereby leaving these individuals unable to be productive, tax paying members of their community, and jeopardizing public safety. However, a number of employers and government agencies learn about arrests and convictions before they are sealed and then continue to use the information after it has been sealed, thereby undermining the purpose of these statutes. The amendments above would remedy this situ- ation by preventing employers, licensing and certification agencies, and others from using the information once it had been sealed, except where permitted by statute. This is a common sense amendment that ensures that the legislature's intent in passing the sealing and confidentiality statutes is fulfilled.   PRIOR LEGISLATIVE HISTORY: A.5107 (2015-16); A.7683 (2013-14)(passed Assembly 2014)   FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS: None.   EFFECTIVE DATE: This act shall take effect 90 days after it shall have become a law.
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A04925 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          4925
 
                               2017-2018 Regular Sessions
 
                   IN ASSEMBLY
 
                                    February 6, 2017
                                       ___________
 
        Introduced  by  M.  of A. O'DONNELL, WEPRIN -- read once and referred to
          the Committee on Codes
 
        AN ACT to amend the criminal procedure law, in relation to  the  use  of
          sealed records
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:

     1    Section 1. Paragraphs (c) and (d) of subdivision 1 of  section  160.50
     2  of  the  criminal procedure law, paragraph (c) as amended by chapter 169
     3  of the laws of 1994, paragraph (d) as amended by chapter 449 of the laws
     4  of 2015, are amended to read as follows:
     5    (c) all official records and papers, including judgments and orders of
     6  a court but not including  published  court  decisions  or  opinions  or
     7  records  and  briefs  on  appeal, relating to the arrest or prosecution,
     8  including all duplicates and copies thereof, on file with  the  division
     9  of  criminal justice services, any court, police agency, or prosecutor's
    10  office shall be sealed and not  made  available  to,  or  used  for  any
    11  purpose  not  specifically  authorized by law by any person or public or
    12  private agency, even if the records were  previously  obtained  by  such
    13  person or public or private agency;
    14    (d)  [such]  the records referred to in paragraph (c) of this subdivi-
    15  sion shall only be made available to, and  may  only  be  used  by,  the
    16  person  accused  or to such person's designated agent, and shall only be
    17  made available to, and may only be   used by: (i) a  prosecutor  in  any
    18  proceeding  in  which  the  accused  has  moved for an order pursuant to
    19  section 170.56 or 210.46 of this chapter,  or  (ii)  a  law  enforcement
    20  agency  upon  ex  parte motion in any superior court, or in any district
    21  court, city court or the criminal court of the city of New York provided
    22  that such court sealed the record, if such agency  demonstrates  to  the
    23  satisfaction  of  the  court  that justice requires that such records be
    24  made available to it, or (iii) any state or local officer or agency with
    25  responsibility for the issuance of licenses to possess  guns,  when  the
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD09403-01-7

        A. 4925                             2
 
     1  accused  has  made  application for such a license, or (iv) the New York
     2  state department of  corrections  and  community  supervision  when  the
     3  accused is on parole supervision as a result of conditional release or a
     4  parole  release  granted  by the New York state board of parole, and the
     5  arrest which is the subject of the inquiry is one which  occurred  while
     6  the  accused was under such supervision, or (v) any prospective employer
     7  of a police officer or peace officer  as  those  terms  are  defined  in
     8  subdivisions  thirty-three and thirty-four of section 1.20 of this chap-
     9  ter, in relation to an application for employment as a police officer or
    10  peace officer; provided, however, that every person who is an  applicant
    11  for  the  position of police officer or peace officer shall be furnished
    12  with a copy of all records obtained under this paragraph and afforded an
    13  opportunity to make  an  explanation  thereto,  or  (vi)  the  probation
    14  department  responsible  for  supervision of the accused when the arrest
    15  which is the subject of the inquiry is  one  which  occurred  while  the
    16  accused was under such supervision; and
    17    §  2. Paragraphs (c) and (d) of subdivision 1 of section 160.55 of the
    18  criminal procedure law, paragraph (c) as amended by chapter 169  of  the
    19  laws  of  1994,  paragraph  (d) as amended by chapter 449 of the laws of
    20  2015, are amended to read as follows:
    21    (c) all official records and papers relating to the arrest  or  prose-
    22  cution,  including  all  duplicates and copies thereof, on file with the
    23  division of criminal justice services, police  agency,  or  prosecutor's
    24  office  shall  be  sealed  and  not  made  available to, or used for any
    25  purpose not specifically authorized by law by any person  or  public  or
    26  private  agency,  even  if  the records were previously obtained by such
    27  person or public or private agency;
    28    (d) the records referred to in paragraph (c) of this subdivision shall
    29  be made available to, and may only be used by, the person accused or  to
    30  such person's designated agent, and shall only be made available to, and
    31  may  only  be  used  by: (i) a prosecutor in any proceeding in which the
    32  accused has moved for an order pursuant to section 170.56 or  210.46  of
    33  this  chapter,  or (ii) a law enforcement agency upon ex parte motion in
    34  any superior court, or in any district court, city court or the criminal
    35  court of the city of New  York  provided  that  such  court  sealed  the
    36  record,  if  such  agency  demonstrates to the satisfaction of the court
    37  that justice requires that such records be  made  available  to  it,  or
    38  (iii)  any  state or local officer or agency with responsibility for the
    39  issuance of licenses to possess guns, when the accused has made applica-
    40  tion for such a license, or  (iv)  the  New  York  state  department  of
    41  corrections  and  community supervision when the accused is under parole
    42  supervision as a result of conditional release or parole release granted
    43  by the New York state board of  parole  and  the  arrest  which  is  the
    44  subject of the inquiry is one which occurred while the accused was under
    45  such supervision, or (v) the probation department responsible for super-
    46  vision  of  the  accused  when  the  arrest  which is the subject of the
    47  inquiry is one which occurred while the accused was  under  such  super-
    48  vision, or (vi) a police agency, probation department, sheriff's office,
    49  district attorney's office, department of correction of any municipality
    50  and  parole  department,  for  law  enforcement purposes, upon arrest in
    51  instances in which the individual stands convicted of harassment in  the
    52  second  degree, as defined in section 240.26 of the penal law, committed
    53  against a member of the same family or household as  the  defendant,  as
    54  defined in subdivision one of section 530.11 of this chapter, and deter-
    55  mined  pursuant  to subdivision eight-a of section 170.10 of this title;
    56  and

        A. 4925                             3
 
     1    § 3. Subdivision 4 of section 160.58 of the criminal procedure law, as
     2  added by section 3 of part AAA of chapter 56 of the  laws  of  2009,  is
     3  amended to read as follows:
     4    4.  When a court orders sealing pursuant to this section, all official
     5  records  and  papers  relating  to  the   arrests,   prosecutions,   and
     6  convictions,  including  all duplicates and copies thereof, on file with
     7  the division of criminal justice services or any court shall  be  sealed
     8  and  not  made  available  to,  or used for any purpose not specifically
     9  authorized by law by, any person or public or private  agency,  even  if
    10  the records were previously obtained by such person or public or private
    11  agency;  provided,  however, the division shall retain any fingerprints,
    12  palmprints and photographs, or digital images of the same.
    13    § 4. Subdivision 6 of section 160.58 of the criminal procedure law, as
    14  added by section 3 of part AAA of chapter 56 of the  laws  of  2009,  is
    15  amended to read as follows:
    16    6.  Records  sealed  pursuant  to  this subdivision shall only be made
    17  available to, and may only be used by:
    18    (a) the defendant or the defendant's designated agent;
    19    (b) qualified agencies, as defined  in  subdivision  nine  of  section
    20  eight  hundred  thirty-five  of the executive law, and federal and state
    21  law enforcement agencies, when acting within  the  scope  of  their  law
    22  enforcement duties; or
    23    (c)  any  state or local officer or agency with responsibility for the
    24  issuance of licenses to possess guns, when the person has made  applica-
    25  tion for such a license; or
    26    (d)  any  prospective employer of a police officer or peace officer as
    27  those terms are defined in subdivisions thirty-three and thirty-four  of
    28  section  1.20 of this chapter, in relation to an application for employ-
    29  ment as a police officer or peace officer; provided, however, that every
    30  person who is an applicant for the position of police officer  or  peace
    31  officer  shall  be  furnished  with a copy of all records obtained under
    32  this paragraph and afforded an opportunity to make an explanation there-
    33  to.
    34    § 5. Subdivision 2 of section 720.35 of the criminal procedure law, as
    35  amended by section 87 of subpart B of part C of chapter 62 of  the  laws
    36  of 2011, is amended to read as follows:
    37    2.  Except where specifically required or permitted by statute or upon
    38  specific authorization of the court, all official  records  and  papers,
    39  whether on file with the court, a police agency or the division of crim-
    40  inal justice services, relating to a case involving a youth who has been
    41  adjudicated  a  youthful  offender, are confidential and may not be made
    42  available to, or used for any purpose not specifically authorized by law
    43  by, any person or public or private agency, even  if  the  records  were
    44  previously  obtained  by  such person or public or private agency, other
    45  than the designated  educational  official  of  the  public  or  private
    46  elementary  or  secondary  school  in  which  the youth is enrolled as a
    47  student provided that such local educational official  shall  only  have
    48  made  available  a notice of such adjudication and shall not have access
    49  to any other official records and papers, such  youth  or  such  youth's
    50  designated  agent (but only where the official records and papers sought
    51  are on file with a court and request therefor is made to that  court  or
    52  to a clerk thereof), an institution to which such youth has been commit-
    53  ted,  the  department  of  corrections  and  community supervision and a
    54  probation department of this state that requires such  official  records
    55  and  papers  for the purpose of carrying out duties specifically author-
    56  ized by law; provided, however, that information regarding an  order  of

        A. 4925                             4
 
     1  protection  or  temporary order of protection issued pursuant to section
     2  530.12 of this chapter or a warrant issued in connection  therewith  may
     3  be maintained on the statewide automated order of protection and warrant
     4  registry established pursuant to section two hundred twenty-one-a of the
     5  executive  law during the period that such order of protection or tempo-
     6  rary order of protection is in full force and  effect  or  during  which
     7  such  warrant may be executed. Such confidential information may be made
     8  available pursuant to law only for purposes of adjudicating or enforcing
     9  such order of protection or temporary order  of  protection  and,  where
    10  provided  to  a  designated  educational official, as defined in section
    11  380.90 of this chapter, for purposes related to  the  execution  of  the
    12  student's  educational plan, where applicable, successful school adjust-
    13  ment and reentry into the community. Such  notification  shall  be  kept
    14  separate  and  apart  from  such  student's  school records and shall be
    15  accessible only by the designated educational official.  Such  notifica-
    16  tion  shall  not  be  part of such student's permanent school record and
    17  shall not be appended to or included in any documentation regarding such
    18  student and shall be destroyed at such time as such student is no longer
    19  enrolled in the school district. At no time shall such  notification  be
    20  used for any purpose other than those specified in this subdivision.
    21    §  6.  This  act shall take effect on the ninetieth day after it shall
    22  have become a law.
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