NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A7584
SPONSOR: Lentol TITLE OF BILL: An act to amend the criminal procedure law, in
relation to sealing petty offenses
This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of his Advisory
Committee on Criminal Law and Procedure.
This measure would amend section 160.55 of the Criminal Procedure Law to
clarify that cases that result in a conviction only for a petty offense
fall within the meaning of that statute regardless of the original
arrest charge.
There is an unusual and unintended anomaly in how executive agencies
apply the sealing provisions of CPL 160.55 to convictions where the
original arrest charge is a petty offense (e.g., a traffic infraction or
violation offense), as distinguished from cases where the original
arrest charge is a misdemeanor or felony but later ends only in a
conviction for a petty offense. To understand how this anomaly has aris-
en, it is necessary to understand the history of the statute, which, in
relevant part, currently provides that
"(u)pon the termination of a criminal action or proceeding against a
person by the conviction of such person of a traffic infraction or a
violation
other than loitering or DWAI, unless the court decides to not
seal in the interest of justice . . . all official records and papers
relating to the arrest or prosecution . . . on file with the division of
criminal justice services, police agency, or prosecutor's office shall
be sealed and not made available to any person or public or private
agency" (CPL 160.55(1)).
Despite this unequivocal language, most law enforcement agencies,
including the Division of Criminal Justice Services and local police
departments, distinguish between cases where an accused is arrested on a
top charge that is a violation or traffic infraction and those where the
top charge of a misdemeanor or felony offense, but the accused is later
convicted only of a traffic infraction or violation. In the latter, all
agree that the case should be sealed; in the former, law enforcement
records consistently are not sealed.
The reasons for this result are found in the history of the statute as
reflected in a decades- old, but never updated, McKinney's commentary on
the topic. CPL 160.55 was enacted in 1980 and was originally designed to
seal non-criminal dispositions that appeared on an accused's criminal
history report (the "rap sheet"). At the time, and still today, a
conviction for a noncriminal offense could only be reflected on a DCJS
rap sheet if the accused was initially arrested on a fingerprintable
offense (see CPL 160.10(1)). Where an accused is arrested for a non-
printable offense, DCJS does not reflect the arrest and thus the case,
regardless of disposition, is not reflected on a defendant's rap sheet.
Based on the original reach of the statute, it was understood that seal-
ing convictions for a petty offense at DCJS involved only fingerprinta-
ble arrests. The practice commentary written at the time of the original
statute accurately reflects this state of the law:
"This section, added to the CPL in 1980, complements the provisions of
the preceding section (160.50), which apply where the entire criminal
action or proceeding is terminated in the defendant's favor. The situ-
ation covered here is where defendant, having been arrested or charged
with a printable offense (CPL § 160.10), ultimately is convicted of a
petty offense, except the three specifically excluded." (emphasis added)
The statute operated, as reflected in the commentary, until 1994, when
the Legislature expanded CPL 160.55 to include sealing not only petty
offenses that would be reflected on an accused's rap sheet, but also
records of law enforcement, including police and DA records (L. 1994, c.
169 § 81). Obviously, law enforcement agencies possess all arrest
records, regardless of whether a defendant is charged with a finger-
printable offense. Thus, the distinction that was critical when the
statute was first enacted - whether DCJS had any record to seal - became
irrelevant to law enforcement records. At that point, a glaring incon-
sistency arose that made the sealing of petty offenses at the local law
enforcement level dependent on whether the arrest carried a top-count
charge of a crime. Ironically, the current application of the statute
results in more favorable treatment for those accused of misdemeanors
and felonies over those who are initially accused only of a petty
offense, an outcome the Legislature surely could not have intended.
This measure amends CPL 160.55(1) by adding language to clarify that the
statute's scope is gauged solely on the conviction charges as reflected
in the final disposition of the case; the arrest charge is irrelevant.
The measure retains the prefatory language that the section applies to a
"criminal action or proceeding" because petty offense charges, although
not criminal, are still part of a criminal action or proceeding when
adjudicated in the Unified Court System (see CPL 1.20(16)).
This measure, which would have no meaningful fiscal impact on the State,
would take effect 90 days after it shall have become law.
LEGISLATIVE HISTORY
2017-2018 (Sen Lanza) (Committed to Rules)
STATE OF NEW YORK
________________________________________________________________________
7584
2019-2020 Regular Sessions
IN ASSEMBLY
May 10, 2019
___________
Introduced by M. of A. LENTOL -- (at request of the Office of Court
Administration) -- read once and referred to the Committee on Codes
AN ACT to amend the criminal procedure law, in relation to sealing petty
offenses
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The opening paragraph of subdivision 1 of section 160.55 of
2 the criminal procedure law, as amended by chapter 169 of the laws of
3 1994, is amended to read as follows:
4 [Upon] Regardless of the class of offense for which a person is
5 initially charged, upon the termination of a criminal action or proceed-
6 ing against a person by the conviction of such person of a traffic
7 infraction or a violation, other than a violation of loitering as
8 described in paragraph (d) [or (e)] of subdivision one of section 160.10
9 of this [chapter] article or the violation of operating a motor vehicle
10 while ability impaired as described in subdivision one of section eleven
11 hundred ninety-two of the vehicle and traffic law, unless the district
12 attorney upon motion with not less than five [days] days' notice to such
13 person or his or her attorney demonstrates to the satisfaction of the
14 court that the interests of justice require otherwise, or the court on
15 its own motion with not less than five [days] days' notice to such
16 person or his or her attorney determines that the interests of justice
17 require otherwise and states the reasons for such determination on the
18 record, the clerk of the court wherein such criminal action or proceed-
19 ing was terminated shall immediately notify the commissioner of the
20 division of criminal justice services and the heads of all appropriate
21 police departments and other law enforcement agencies that the action
22 has been terminated by such conviction. Upon receipt of notification of
23 such termination:
24 § 2. This act shall take effect on the ninetieth day after it shall
25 have become a law.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD11521-01-9
