S08113 Summary:

BILL NOS08113
 
SAME ASSAME AS A10710
 
SPONSORGALLIVAN
 
COSPNSR
 
MLTSPNSR
 
Add 160.59, CP L; amd 296, add 845-c, Exec L; amd 212, Judy L
 
Relates to the sealing of certain convictions; defines terms; relates to criminal history record searches and references to undisposed cases; directs the commissioner of criminal justice services to direct that certain records of any action or proceeding terminated be sealed; makes related provisions.
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S08113 Actions:

BILL NOS08113
 
06/13/2016REFERRED TO RULES
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S08113 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          8113
 
                    IN SENATE
 
                                      June 13, 2016
                                       ___________
 
        Introduced  by Sen. GALLIVAN -- read twice and ordered printed, and when
          printed to be committed to the Committee on Rules
 
        AN ACT to amend the criminal procedure law and  the  executive  law,  in
          relation  to  sealing  of  certain  convictions (Part A); to amend the
          executive law and the judiciary law, in relation to  certain  criminal
          history  record  searches  (Part B); and to direct the commissioner of
          the division of criminal justice  services  to  seal  certain  records
          (Part C)
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. This act enacts into law major components  of  legislation.
     2  Each  component  is  wholly  contained with a Part identified as Parts A
     3  through C. The effective date for each  particular  provision  contained
     4  within  such  Part  is  set  forth in the last section of such Part. Any
     5  provision in any section contained within a Part, including  the  effec-
     6  tive date of the Part, which makes reference to a section "of this act",
     7  when  used in connection with that particular component, shall be deemed
     8  to mean and refer to the corresponding section of the Part in  which  it
     9  is  found.  Section  three  of this act sets forth the general effective
    10  date of this act.
 
    11                                   PART A
 
    12    Section 1. The criminal procedure law  is  amended  by  adding  a  new
    13  section 160.59 to read as follows:
    14  § 160.59 Sealing of certain convictions.
    15    1.  Definitions:  As  used  in this section, the following terms shall
    16  have the following meanings;
    17    (a) "Eligible offense" shall mean any crime defined  in  the  laws  of
    18  this state other than a sex offense defined in article one hundred thir-
    19  ty  of  the  penal law, an offense defined in article two hundred sixty-
    20  three of the penal law, a felony offense defined in article one  hundred
    21  twenty-five  of  the  penal  law,  a  violent  felony offense defined in
    22  section 70.02 of the penal law, a class A felony offense defined in  the

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD15862-02-6

        S. 8113                             2
 
     1  penal  law,  a felony offense defined in article one hundred five of the
     2  penal law where the underlying offense is not an  eligible  offense,  an
     3  attempt  to  commit  an  offense  that is not an eligible offense if the
     4  attempt  is  a  felony,  or  an  offense for which registration as a sex
     5  offender is required pursuant to article six-C of the correction law.
     6    (b) "Sentencing judge" shall mean the judge  who  pronounced  sentence
     7  upon  the  conviction under consideration, or if that judge is no longer
     8  sitting in a court in the  jurisdiction  in  which  the  conviction  was
     9  obtained, any other judge who is sitting in the criminal court where the
    10  judgment of conviction was entered.
    11    2.  (a)  A  defendant  who  has  been  convicted of up to two eligible
    12  offenses but not more than one felony offense may apply to the court  in
    13  which  he  or she was convicted of the most serious offense to have such
    14  conviction sealed. If all offenses are offenses with  the  same  classi-
    15  fication,  the  application  shall  be  made  to  the court in which the
    16  defendant was last convicted.
    17    (b) An application shall contain: (i)  a  copy  of  a  certificate  of
    18  disposition or other similar documentation for any offense for which the
    19  defendant  has been convicted, or an explanation of why such certificate
    20  or other documentation is not available; (ii) a sworn statement  of  the
    21  defendant  as  to  whether he or she has filed, or then intends to file,
    22  any application for sealing of any other eligible offense; (iii) a  copy
    23  of  any  other such application that has been filed; (iv) a sworn state-
    24  ment as to the conviction or  convictions  for  which  relief  is  being
    25  sought; and (v) a sworn statement of the reason or reasons why the court
    26  should, in its discretion, grant such sealing, along with any supporting
    27  documentation.
    28    (c)  A  copy  of any application for such sealing shall be served upon
    29  the district attorney of the county in which the conviction, or, if more
    30  than one, the convictions, was or were obtained. The  district  attorney
    31  shall  notify  the  court within forty-five days if he or she objects to
    32  the application for sealing.
    33    (d) When such application  is  filed  with  the  court,  it  shall  be
    34  assigned  to  the  sentencing  judge unless more than one application is
    35  filed in which case the application shall  be  assigned  to  the  county
    36  court  or the supreme court of the county in which the criminal court is
    37  located, who shall request and receive from  the  division  of  criminal
    38  justice  services  a  fingerprint  based  criminal history record of the
    39  defendant, including any sealed or suppressed records. The  division  of
    40  criminal  justice services also shall include a criminal history report,
    41  if any, from the federal bureau of investigation regarding any  criminal
    42  history  information that occurred in other jurisdictions.  The division
    43  is hereby authorized to receive such information from the federal bureau
    44  of investigation for this purpose, and to make such  information  avail-
    45  able  to  the  court,  which  may make this information available to the
    46  district attorney and the defendant.
    47    3. The sentencing judge, or county or supreme  court  shall  summarily
    48  deny the defendant's application when:
    49    (a)  the  defendant is required to register as a sex offender pursuant
    50  to article six-C of the correction law; or
    51    (b) the defendant has  previously  obtained  sealing  of  the  maximum
    52  number  of  convictions  allowable  under section 160.58 of the criminal
    53  procedure law; or
    54    (c) the defendant has  previously  obtained  sealing  of  the  maximum
    55  number  of convictions allowable under subdivision four of this section;
    56  or

        S. 8113                             3
 
     1    (d) the time period specified in subdivision five of this section  has
     2  not yet been satisfied; or
     3    (e) the defendant has an undisposed arrest or charge pending; or
     4    (f)  the  defendant  was  convicted of any crime after the date of the
     5  imposition of the sentence on  the  defendant's  latest  conviction  for
     6  which sealing is sought; or
     7    (g)  the  defendant  has failed to provide the court with the required
     8  sworn statement of the reasons why the court  should  grant  the  relief
     9  requested; or
    10    (h)  the  defendant has been convicted of two or more felonies or more
    11  than two crimes.
    12    4. Provided that the application  is  not  summarily  denied  for  the
    13  reasons  set forth in subdivision three of this section, a defendant who
    14  stands convicted of up to two eligible offenses, may obtain  sealing  of
    15  no more than two eligible offenses but not more than one felony offense.
    16    5.  Any  eligible  offense may be sealed only after at least ten years
    17  have passed since the imposition of  the  sentence  on  the  defendant's
    18  latest  conviction,  or,  if  the defendant was sentenced to a period of
    19  incarceration, including a period of incarceration imposed  in  conjunc-
    20  tion  with  a sentence of probation, the defendant's latest release from
    21  incarceration. In calculating the ten year period  under  this  subdivi-
    22  sion,  any  period  of  time  the defendant spent incarcerated after the
    23  conviction for which the application for sealing  is  sought,  shall  be
    24  excluded and such ten year period shall be extended by a period or peri-
    25  ods equal to the time served under such incarceration.
    26    6.  Upon  determining that the application is not subject to mandatory
    27  denial pursuant to subdivision three of this section and that the appli-
    28  cation is opposed by the district  attorney,  the  sentencing  judge  or
    29  county  or  supreme  court shall conduct a hearing on the application in
    30  order to consider any evidence offered by either party  that  would  aid
    31  the  sentencing judge in his or her decision whether to seal the records
    32  of the defendant's convictions. No hearing is required if  the  district
    33  attorney  does  not oppose the application, however the court may hold a
    34  hearing at its discretion.
    35    7. In considering any such application, the sentencing judge or county
    36  or supreme court shall consider any relevant factors, including but  not
    37  limited to:
    38    (a)  the  amount  of  time that has elapsed since the defendant's last
    39  conviction;
    40    (b) the circumstances and seriousness of the  offense  for  which  the
    41  defendant is seeking relief, including whether the arrest charge was not
    42  an eligible offense;
    43    (c)  the circumstances and seriousness of any other offenses for which
    44  the defendant stands convicted;
    45    (d) the character of the defendant, including any  measures  that  the
    46  defendant  has  taken  toward  rehabilitation,  such as participating in
    47  treatment programs, work, or schooling, and participating  in  community
    48  service or other volunteer programs;
    49    (e)  any  statements  made  by the victim of the offense for which the
    50  defendant is seeking relief;
    51    (f) the impact of sealing the defendant's record upon his or her reha-
    52  bilitation and upon his or her successful  and  productive  reentry  and
    53  reintegration into society; and
    54    (g)  the impact of sealing the defendant's record on public safety and
    55  upon the public's confidence in and respect for the law.

        S. 8113                             4
 
     1    8. When a sentencing judge or county or supreme court  orders  sealing
     2  pursuant  to  this  section, all official records and papers relating to
     3  the arrests, prosecutions, and convictions, including all duplicates and
     4  copies thereof, on file with the division of criminal  justice  services
     5  or  any  court  shall  be sealed and not made available to any person or
     6  public or private agency except as provided for in subdivision  nine  of
     7  this  section;  provided, however, the division shall retain any finger-
     8  prints, palmprints and photographs, or digital images of the  same.  The
     9  clerk  of  such  court  shall immediately notify the commissioner of the
    10  division of criminal justice services regarding the records  that  shall
    11  be  sealed  pursuant  to  this  section. The clerk also shall notify any
    12  court in which the defendant has stated, pursuant to  paragraph  (b)  of
    13  subdivision  two of this section, that he or she has filed or intends to
    14  file an application for sealing of any other eligible offense.
    15    9. Records sealed pursuant to this section shall be made available to:
    16    (a) the defendant or the defendant's designated agent; or
    17    (b) qualified agencies, as defined  in  subdivision  nine  of  section
    18  eight  hundred  thirty-five  of the executive law, and federal and state
    19  law enforcement agencies, when acting within  the  scope  of  their  law
    20  enforcement duties; or
    21    (c)  any  state or local officer or agency with responsibility for the
    22  issuance of licenses to possess guns, when the person has made  applica-
    23  tion for such a license; or
    24    (d)  any  prospective employer of a police officer or peace officer as
    25  those terms are defined in subdivisions thirty-three and thirty-four  of
    26  section  1.20 of this chapter, in relation to an application for employ-
    27  ment as a police officer or peace officer; provided, however, that every
    28  person who is an applicant for the position of police officer  or  peace
    29  officer  shall  be  furnished  with a copy of all records obtained under
    30  this paragraph and afforded an opportunity to make an explanation there-
    31  to; or
    32    (e) the criminal justice information services division of the  federal
    33  bureau  of  investigation,  for the purposes of responding to queries to
    34  the national instant criminal background check system regarding attempts
    35  to purchase or otherwise take possession of firearms, as defined  in  18
    36  USC 921(a)(3).
    37    10.  A conviction which is sealed pursuant to this section is included
    38  within the definition of a conviction for the purposes of  any  criminal
    39  proceeding  in  which  the  fact  of  a prior conviction would enhance a
    40  penalty or is an element of the offense charged.
    41    11. No defendant shall be required or permitted to  waive  eligibility
    42  for  sealing  pursuant  to  this  section  as  part of a plea of guilty,
    43  sentence or any agreement  related  to  a  conviction  for  an  eligible
    44  offense and any such waiver shall be deemed void and wholly enforceable.
    45    § 2. Subdivision 16 of section 296 of the executive law, as separately
    46  amended  by section 3 of part N and section 14 of part AAA by chapter 56
    47  of the laws of 2009, is amended to read as follows:
    48    16. It shall be an unlawful discriminatory  practice,  unless  specif-
    49  ically required or permitted by statute, for any person, agency, bureau,
    50  corporation or association, including the state and any political subdi-
    51  vision thereof, to make any inquiry about, whether in any form of appli-
    52  cation  or  otherwise,  or  to  act  upon  adversely  to  the individual
    53  involved, any arrest or criminal accusation of such individual not  then
    54  pending  against  that individual which was followed by a termination of
    55  that criminal action or proceeding  in  favor  of  such  individual,  as
    56  defined  in  subdivision two of section 160.50 of the criminal procedure

        S. 8113                             5
 
     1  law, or by a youthful offender adjudication, as defined  in  subdivision
     2  one  of section 720.35 of the criminal procedure law, or by a conviction
     3  for a violation sealed pursuant to section 160.55 of the criminal proce-
     4  dure  law  or by a conviction which is sealed pursuant to section 160.58
     5  or 160.59 of the criminal procedure law, in connection with the  licens-
     6  ing,  employment or providing of credit or insurance to such individual;
     7  provided, further, that no person shall be required to divulge  informa-
     8  tion  pertaining to any arrest or criminal accusation of such individual
     9  not then pending against that individual which was followed by a  termi-
    10  nation  of  that criminal action or proceeding in favor of such individ-
    11  ual, as defined in subdivision two of section  160.50  of  the  criminal
    12  procedure  law,  or  by  a youthful offender adjudication, as defined in
    13  subdivision one of section 720.35 of the criminal procedure law, or by a
    14  conviction for a violation sealed pursuant  to  section  160.55  of  the
    15  criminal  procedure  law, or by a conviction which is sealed pursuant to
    16  section 160.58 or 160.59 of the criminal procedure law.  The  provisions
    17  of  this  subdivision  shall  not  apply  to the licensing activities of
    18  governmental bodies in relation to the regulation of guns, firearms  and
    19  other  deadly weapons or in relation to an application for employment as
    20  a police officer or peace officer as those terms are defined in subdivi-
    21  sions thirty-three and thirty-four  of  section  1.20  of  the  criminal
    22  procedure  law; provided further that the provisions of this subdivision
    23  shall not apply to an application for employment or  membership  in  any
    24  law enforcement agency with respect to any arrest or criminal accusation
    25  which  was  followed  by a youthful offender adjudication, as defined in
    26  subdivision one of section 720.35 of the criminal procedure law, or by a
    27  conviction for a violation sealed pursuant  to  section  160.55  of  the
    28  criminal  procedure  law, or by a conviction which is sealed pursuant to
    29  section 160.58 or 160.59 of the criminal procedure law.
    30    § 3. This act shall take effect on the one hundred eightieth day after
    31  it shall have become a law and  shall  apply  to  searches  of  criminal
    32  history records conducted on or after such date; provided, however, that
    33  a  defendant  may request sealing, as set forth in section 160.59 of the
    34  criminal procedure law, as added by section one  of  this  act,  for  an
    35  offense  which  was committed prior to the effective date of this act or
    36  on or after the effective date of this act.
 
    37                                   PART B
 
    38    Section 1. The executive law is amended by adding a new section  845-c
    39  to read as follows:
    40    § 845-c. Criminal history record searches; undisposed cases.  1. When,
    41  pursuant  to  statute  or  the regulations of the division, the division
    42  conducts a search of its criminal history records and returns  a  report
    43  thereon,  all  references to undisposed cases contained in such criminal
    44  history record shall be excluded from such report.
    45    2. For purposes of this section, "undisposed case" shall mean a crimi-
    46  nal action or proceeding identified in the division's  criminal  history
    47  record repository, for which there is no record of an unexecuted warrant
    48  of  arrest,  superior court warrant of arrest, or bench warrant, and for
    49  which there is no record of conviction  or  imposition  of  sentence  or
    50  other final disposition, other than the issuance of an apparently unexe-
    51  cuted  warrant, has been recorded and with respect to which no entry has
    52  been made in the division's criminal history records for a period of  at
    53  least  five years preceding the issuance of such report. When a criminal
    54  action in the division's criminal history record repository  becomes  an

        S. 8113                             6
 
     1  undisposed  case pursuant to this section, the division shall notify the
     2  district attorney in the county which has jurisdiction. If the  district
     3  attorney  notifies the division that such case is pending and should not
     4  meet  the  definition  of  an  undisposed  case,  the  case shall not be
     5  excluded from such report.
     6    3. The provisions of subdivision one of this section shall  not  apply
     7  to  criminal history record information: (a) provided by the division to
     8  qualified agencies pursuant to subdivision six of section eight  hundred
     9  thirty-seven  of  this  article,  or to federal or state law enforcement
    10  agencies, for criminal justice purposes; (b) prepared solely for a  bona
    11  fide research purpose; or (c) prepared for the internal recordkeeping or
    12  case management purposes of the division.
    13    §  2.  Subdivision 2 of section 212 of the judiciary law is amended by
    14  adding a new paragraph (u) to read as follows:
    15    (u) take such actions and adopt such measures as may be  necessary  to
    16  ensure that no written or electronic report of a criminal history record
    17  search  conducted  by  the  office of court administration, other than a
    18  search conducted solely for the internal recordkeeping or  case  manage-
    19  ment  purposes  of  the  judiciary  or for a bona fide research purpose,
    20  contains information relating to an undisposed  case.  For  purposes  of
    21  this  paragraph,  "undisposed  case"  shall  mean  a  criminal action or
    22  proceeding, or an arrest incident, appearing  in  the  criminal  history
    23  records  of  the office of court administration for which no conviction,
    24  imposition of sentence, order of removal  or  other  final  disposition,
    25  other  than  the  issuance of an apparently unexecuted warrant, has been
    26  recorded and with respect to which  no  entry  has  been  made  in  such
    27  records  for  a  period of at least five years preceding the issuance of
    28  such report. Nothing contained in this  paragraph  shall  be  deemed  to
    29  permit  or require the release, disclosure or other dissemination by the
    30  office of court administration of criminal  history  record  information
    31  that has been sealed in accordance with law.
    32    § 3. This act shall take effect on the one hundred eightieth day after
    33  it  shall  have  become  a  law  and shall apply to searches of criminal
    34  history records conducted on or after such date; provided, however, that
    35  prior to such effective date, the division of criminal justice services,
    36  in consultation with the state administrator of the unified court system
    37  as well as any other public or  private  agency,  shall  undertake  such
    38  measures  as  may  be  necessary  and appropriate to update its criminal
    39  history records with respect to criminal cases and arrest incidents  for
    40  which no final disposition has been reported.

    41                                   PART C
 
    42    Section  1.  The  commissioner  of  the  division  of criminal justice
    43  services is authorized to direct that records of any action or  proceed-
    44  ing  terminated in favor of the accused, as defined by section 160.50 of
    45  the criminal procedure law, on or after September  1,  1976  and  before
    46  November 1, 1991 maintained by the division of criminal justice services
    47  be  sealed  in the manner provided for by section 160.50 of the criminal
    48  procedure law. The commissioner of  the  division  of  criminal  justice
    49  services  is  further authorized to direct that records of any action or
    50  proceeding terminated by a conviction for  a  traffic  infraction  or  a
    51  violation, other than a violation of loitering as described in paragraph
    52  (d)  of subdivision 1 of section 160.10 of the criminal procedure law or
    53  the violation of driving while ability impaired as described in subdivi-
    54  sion 1 of section 1192 of the  vehicle  and  traffic  law  on  or  after

        S. 8113                             7
 
     1  September 1, 1980 and before November 1, 1991 maintained by the division
     2  of  criminal  justice  services  be sealed in the manner provided for by
     3  section 160.55 of the criminal procedure law.
     4    § 2. This act shall take effect on the one hundred eightieth day after
     5  it shall have become a law.
     6    §  2. Severability clause. If any provision of this act or application
     7  thereof shall for any reason be  adjudged  by  any  court  of  competent
     8  jurisdiction  to  be invalid, such judgment shall not affect, impair, or
     9  invalidate the remainder of the act, but shall be confined in its opera-
    10  tion to the provision thereof directly involved in  the  controversy  in
    11  which the judgment shall have been rendered.
    12    §  3.  This act shall take effect immediately, provided, however, that
    13  the applicable effective date of Parts A through C of this act shall  be
    14  as specifically set forth in the last section of such Parts.
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