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A04038 Summary:

BILL NOA04038A
 
SAME ASSAME AS S03205-A
 
SPONSORWeprin
 
COSPNSRO'Donnell, Aubry, Perry, Abinanti, Sepulveda
 
MLTSPNSR
 
Amd 296, Exec L; amd 170.55 & 170.56, CP L
 
Prohibits employment discrimination against persons whose criminal charges have been adjourned in contemplation of dismissal.
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A04038 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A4038A
 
SPONSOR: Weprin
  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 contemplation 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 noncriminal 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 n of 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: Passed Assembly 2013. Ordered to Third Reading 2014. Referred to Correction in 2015 and 2016.   FISCAL IMPLICATIONS: None.   EFFECTIVE DATE: 90 days after it shall have become a law; provided however that section two of this act shall take effect on the same day and in the same manner as section 48-a of part WWW of chapter 59 of the laws of 2017 takes effect.
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A04038 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         4038--A
 
                               2017-2018 Regular Sessions
 
                   IN ASSEMBLY
 
                                    January 31, 2017
                                       ___________
 
        Introduced by M. of A. WEPRIN, O'DONNELL, AUBRY, PERRY, ABINANTI -- read
          once  and  referred  to  the  Committee  on  Correction  --  committee
          discharged, bill amended, ordered reprinted as amended and recommitted
          to said committee
 
        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 contemplation of dismissal
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. Subdivision 16 of section 296  of  the  executive  law,  as
     2  separately  amended by section 3 of part N and section 14 of part AAA of
     3  chapter 56 of the laws of 2009, is amended to read as follows:
     4    16. It shall be an unlawful discriminatory  practice,  unless  specif-
     5  ically required or permitted by statute, for any person, agency, bureau,
     6  corporation or association, including the state and any political subdi-
     7  vision thereof, to make any inquiry about, whether in any form of appli-
     8  cation  or  otherwise,  or  to  act  upon  adversely  to  the individual
     9  involved, any arrest or criminal accusation of such individual not  then
    10  pending  against  that individual which was followed by a termination of
    11  that criminal action or proceeding  in  favor  of  such  individual,  as
    12  defined  in  subdivision two of section 160.50 of the criminal procedure
    13  law, or by an order adjourning the criminal action in  contemplation  of
    14  dismissal, pursuant to section 170.55, 170.56, 210.46, 210.47, or 215.10
    15  of  the  criminal procedure law, or by a youthful offender adjudication,
    16  as defined in subdivision one of section 720.35 of the  criminal  proce-
    17  dure  law, or by a conviction for a violation sealed pursuant to section
    18  160.55 of the criminal procedure law or by a conviction which is  sealed
    19  pursuant  to section 160.58 of the criminal procedure law, in connection
    20  with the licensing, employment or providing of credit  or  insurance  to
    21  such  individual; provided, further, that no person shall be required to
    22  divulge information pertaining to any arrest or criminal  accusation  of
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD04923-02-7

        A. 4038--A                          2
 
     1  such  individual  not  then  pending  against  that individual which was
     2  followed by a termination of that criminal action or proceeding in favor
     3  of such individual, as defined in subdivision two of section  160.50  of
     4  the  criminal  procedure  law,  or  by  an order adjourning the criminal
     5  action in contemplation of dismissal,  pursuant  to  section  170.55  or
     6  170.56  of the criminal procedure law, or by a youthful offender adjudi-
     7  cation, as defined in subdivision one of section 720.35 of the  criminal
     8  procedure  law,  or  by  a conviction for a violation sealed pursuant to
     9  section 160.55 of the criminal procedure law, or by a  conviction  which
    10  is  sealed pursuant to section 160.58 of the criminal procedure law. The
    11  provisions of this subdivision shall not apply to the  licensing  activ-
    12  ities  of  governmental  bodies  in  relation to the regulation of guns,
    13  firearms and other deadly weapons or in relation to an  application  for
    14  employment  as  a  police  officer  or  peace officer as those terms are
    15  defined in subdivisions thirty-three and thirty-four of section 1.20  of
    16  the criminal procedure law; provided further that the provisions of this
    17  subdivision  shall not apply to an application for employment or member-
    18  ship in any law enforcement agency with respect to any arrest or  crimi-
    19  nal  accusation  which was followed by a youthful offender adjudication,
    20  as defined in subdivision one of section 720.35 of the  criminal  proce-
    21  dure  law, or by a conviction for a violation sealed pursuant to section
    22  160.55 of the criminal procedure law, or by a conviction which is sealed
    23  pursuant to section 160.58 of the criminal procedure law.  For  purposes
    24  of this subdivision, an action which has been adjourned in contemplation
    25  of  dismissal,  pursuant  to  section  170.55  or 170.56 of the criminal
    26  procedure law, shall not be considered a pending action, unless the case
    27  has been restored to the calendar.
    28    § 2. Subdivision 16 of section 296 of the executive law, as amended by
    29  section 48-a of part WWW of chapter 59 of the laws of 2017,  is  amended
    30  to read as follows:
    31    16.  It  shall  be an unlawful discriminatory practice, unless specif-
    32  ically required or permitted by statute, for any person, agency, bureau,
    33  corporation or association, including the state and any political subdi-
    34  vision thereof, to make any inquiry about, whether in any form of appli-
    35  cation or  otherwise,  or  to  act  upon  adversely  to  the  individual
    36  involved,  any arrest or criminal accusation of such individual not then
    37  pending against that individual which was followed by a  termination  of
    38  that  criminal  action  or  proceeding  in  favor of such individual, as
    39  defined in subdivision two of section 160.50 of the  criminal  procedure
    40  law,  or  by an order adjourning the criminal action in contemplation of
    41  dismissal, pursuant to section 170.55, 170.56, 210.46, 210.47, or 215.10
    42  of the criminal procedure law, or by a youthful  offender  adjudication,
    43  as  defined  in subdivision one of section 720.35 of the criminal proce-
    44  dure law, or by a conviction for a violation sealed pursuant to  section
    45  160.55  of the criminal procedure law or by a conviction which is sealed
    46  pursuant to section 160.59 or 160.58 of the criminal procedure  law,  in
    47  connection  with  the  licensing,  employment  or providing of credit or
    48  insurance to such individual; provided, further, that no person shall be
    49  required to divulge information pertaining to  any  arrest  or  criminal
    50  accusation  of  such individual not then pending against that individual
    51  which was followed by a termination of that criminal action or  proceed-
    52  ing  in  favor  of  such  individual,  as  defined in subdivision two of
    53  section 160.50 of the criminal procedure law, or by an order  adjourning
    54  the  criminal  action in contemplation of dismissal, pursuant to section
    55  170.55 or 170.56 of the criminal procedure law, or by a youthful  offen-
    56  der adjudication, as defined in subdivision one of section 720.35 of the

        A. 4038--A                          3
 
     1  criminal procedure law, or by a conviction for a violation sealed pursu-
     2  ant  to section 160.55 of the criminal procedure law, or by a conviction
     3  which is sealed pursuant to section 160.58 or  160.59  of  the  criminal
     4  procedure law. The provisions of this subdivision shall not apply to the
     5  licensing  activities  of  governmental  bodies in relation to the regu-
     6  lation of guns, firearms and other deadly weapons or in relation  to  an
     7  application for employment as a police officer or peace officer as those
     8  terms  are  defined  in  subdivisions  thirty-three  and  thirty-four of
     9  section 1.20 of the criminal procedure law; provided  further  that  the
    10  provisions  of  this  subdivision  shall not apply to an application for
    11  employment or membership in any law enforcement agency with  respect  to
    12  any  arrest  or  criminal  accusation  which  was followed by a youthful
    13  offender adjudication, as defined in subdivision one of  section  720.35
    14  of the criminal procedure law, or by a conviction for a violation sealed
    15  pursuant  to  section  160.55  of  the  criminal  procedure law, or by a
    16  conviction which is sealed pursuant to section 160.58 or 160.59  of  the
    17  criminal  procedure  law.  For  purposes  of this subdivision, an action
    18  which has been adjourned in  contemplation  of  dismissal,  pursuant  to
    19  section  170.55  or  170.56  of the criminal procedure law, shall not be
    20  considered a pending action, unless the case has been  restored  to  the
    21  calendar.
    22    § 3. Subdivision 8 of section 170.55 of the criminal procedure law, as
    23  added  by  chapter  134 of the laws of 1982 and as renumbered by chapter
    24  683 of the laws of 1990, is amended to read as follows:
    25    8. The granting of an adjournment in contemplation of dismissal  shall
    26  not  be  deemed  to  be a conviction or an admission of guilt. No person
    27  shall suffer any disability or forfeiture as a result of such an  order.
    28  Upon  granting  the order of adjournment, the action shall be considered
    29  terminated in the defendant's favor for the  purpose  of  employment  as
    30  defined  by  subdivision  five  of  section  seven  hundred fifty of the
    31  correction law or license as defined  by  subdivision  four  of  section
    32  seven  hundred  fifty  of  the correction law. Upon the dismissal of the
    33  accusatory instrument pursuant to this section, the  arrest  and  prose-
    34  cution shall be deemed a nullity and the defendant shall be restored, in
    35  contemplation of law, to the status he or she occupied before his or her
    36  arrest and prosecution.
    37    § 4. Subdivision 4 of section 170.56 of the criminal procedure law, as
    38  added  by  chapter  1042  of  the  laws  of  1971, is amended to read as
    39  follows:
    40    4. Upon the granting of an order pursuant to subdivision two  of  this
    41  section,  the  action  shall be considered terminated in the defendant's
    42  favor for the purpose of employment as defined by  subdivision  five  of
    43  section  seven  hundred  fifty  of  the  correction  law or a license as
    44  defined by subdivision four  of  section  seven  hundred  fifty  of  the
    45  correction  law.  Upon  the granting of an order pursuant to subdivision
    46  three, the arrest and prosecution shall be  deemed  a  nullity  and  the
    47  defendant  shall  be restored, in contemplation of law, to the status he
    48  or she occupied before his or her arrest and prosecution.
    49    § 5. No provision of this act shall be construed to impair or diminish
    50  any rights an employee or licensee, or an applicant for employment or  a
    51  license, may already possess pursuant to section 170.55 or 170.56 of the
    52  criminal procedure law.
    53    §  6.  This  act shall take effect on the ninetieth day after it shall
    54  have become a law; provided however that section two of this  act  shall
    55  take  effect  on the same date and in the same manner as section 48-a of
    56  part WWW of chapter 59 of the laws of 2017, takes effect.
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