Provides for automatic sealing of certain convictions after a certain passage of time from either imposition of sentence, release from parole or probation, and if the defendant does not have a current charge pending; excludes certain offenses; permits access by certain persons.
STATE OF NEW YORK
________________________________________________________________________
1553--D
2021-2022 Regular Sessions
IN SENATE
January 13, 2021
___________
Introduced by Sens. MYRIE, BAILEY, BIAGGI, BRESLIN, BRISPORT, BROUK,
CLEARE, COMRIE, COONEY, GIANARIS, GOUNARDES, HINCHEY, HOYLMAN, JACK-
SON, KAVANAGH, KENNEDY, LIU, MAY, MAYER, RAMOS, RIVERA, SALAZAR,
SANDERS, SEPULVEDA, SERRANO -- read twice and ordered printed, and
when printed to be committed to the Committee on Codes -- committee
discharged, bill amended, ordered reprinted as amended and recommitted
to said committee -- reported favorably from said committee and
committed to the Committee on Finance -- committee discharged, bill
amended, ordered reprinted as amended and recommitted to said commit-
tee -- committee discharged, bill amended, ordered reprinted as
amended and recommitted to said committee -- recommitted to the
Committee on Codes in accordance with Senate Rule 6, sec. 8 --
reported favorably from said committee and committed to the Committee
on Finance -- committee discharged, bill amended, ordered reprinted as
amended and recommitted to said committee
AN ACT to amend the criminal procedure law, the executive law and the
correction law, in relation to automatic sealing of certain
convictions
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The criminal procedure law is amended by adding a new
2 section 160.57 to read as follows:
3 § 160.57 Automatic sealing of convictions.
4 1. Convictions for certain traffic infractions and violations or any
5 crime defined in the laws of this state shall be sealed in accordance
6 with paragraph (c) of this subdivision as follows:
7 (a) Convictions for subdivision one of section eleven hundred ninety-
8 two of the vehicle and traffic law shall be sealed after three years.
9 (b) Criminal convictions for misdemeanors and felonies shall be sealed
10 upon satisfaction of the following conditions:
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD07615-12-2
S. 1553--D 2
1 (i) at least three years have passed from the imposition of sentence
2 on the defendant's most recent misdemeanor conviction in this state and
3 at least seven years have passed since the imposition of sentence on the
4 defendant's most recent felony conviction in this state;
5 (ii) the defendant does not have a subsequent criminal charge pending
6 in this state;
7 (iii) the defendant is not currently under the supervision of any
8 probation or parole department for the eligible conviction; and
9 (iv) the conviction is not defined as a sex offense under section one
10 hundred sixty-eight-a of the correction law.
11 (c) Where a conviction is eligible for sealing pursuant to this
12 section before, on, or after the effective date of this section, the
13 division of criminal justice services shall immediately notify the
14 office of court administration, the court of conviction, and the heads
15 of all appropriate police and sheriff departments that the conviction is
16 sealed.
17 (d) Records of convictions sealed pursuant to this section including
18 photographs, photographic plates or proofs, palmprints, fingerprints or
19 retina scans shall not be accessed by or made available to any person or
20 public or private agency, or used by any entity covered by subdivision
21 three of this section except for:
22 (i) the defendant and such defendant's counsel;
23 (ii) any court, defense counsel or prosecutor for the purposes of a
24 pending criminal proceeding or proceedings brought in a criminal court
25 pursuant to article six-C of the correction law;
26 (iii) qualified agencies, as defined in subdivision nine of section
27 eight hundred thirty-five of the executive law, federal and state law
28 enforcement agencies, and interstate and international authorities as
29 defined in subdivision three of section two of the public authorities
30 law, when acting within the scope of their law enforcement duties;
31 (iv) the court, prosecutor, and defense counsel if the defendant
32 becomes a witness in a criminal proceeding, or the claimant and respond-
33 ent if the defendant becomes a witness in a civil proceeding;
34 (v) when an individual is a defendant in a criminal proceeding or
35 proceedings brought in a criminal court pursuant to article six-C of the
36 corrections law and the sealed records of conviction of a third party
37 are integral to their defense. In such instances, use of sealed records
38 of conviction shall be requested upon ex parte motion in any superior
39 court, or in any district court, city court or the criminal court of the
40 city of New York provided that such court is where the action is pend-
41 ing. The applicant must demonstrate to the satisfaction of the court
42 that the records will be used for the purpose of this subparagraph;
43 (vi) entities that are required by state or federal law to request and
44 receive a fingerprint-based check of criminal history information,
45 provided, however, that a person whose criminal history information is
46 retrieved pursuant to this paragraph shall be furnished with a copy of
47 such information, together with a copy of article twenty-three-A of the
48 correction law, and informed of his or her right to seek correction of
49 any incorrect information contained in such criminal history information
50 pursuant to regulations and procedures established by the division of
51 criminal justice services;
52 (vii) pursuant to applicable regulations promulgated by the commis-
53 sioner of the division of criminal justice services, specified entities
54 that are authorized by state or federal law to request and receive a
55 fingerprint-based check of criminal history information in relation to
56 the provision of care or services to children, as defined in subdivision
S. 1553--D 3
1 one of section three hundred seventy-one of the social services law, and
2 vulnerable persons, as defined in subdivision fifteen of section four
3 hundred eighty-eight of the social services law, provided, however, that
4 a person whose criminal history information is retrieved pursuant to
5 this paragraph shall be provided with a copy of such criminal history
6 information, together with a copy of article twenty-three-A of the
7 correction law, and informed of his or her right to seek correction of
8 any incorrect information contained in such criminal history information
9 pursuant to regulations and procedures established by the division of
10 criminal justice services;
11 (viii) any prospective employer of a police officer or peace officer
12 as those terms are defined in subdivisions thirty-three and thirty-four
13 of section 1.20 of this chapter, in relation to an application for
14 employment as a police officer, provided, however, that every person who
15 is an applicant shall be furnished with a copy of all records obtained
16 under this paragraph and afforded an opportunity to make an explanation
17 thereto;
18 (ix) any federal, state or local officer or agency with responsibility
19 for the issuance of licenses to possess a firearm, rifle or shotgun or
20 with responsibility for conducting background checks before transfer or
21 sale of a firearm or explosive, when the officer or agency is acting
22 pursuant to such responsibility. This includes the criminal justice
23 information services division of the federal bureau of investigation,
24 for the purposes of responding to queries to the national instant back-
25 ground check system regarding attempts to purchase or otherwise take
26 possession of firearms, rifles or shotguns, as defined in 18 U.S.C. §
27 921 (A)(3);
28 (x) for the purposes of civilian investigation or evaluation of a
29 civilian complaint or civil action concerning law enforcement or prose-
30 cution actions, upon ex parte motion in any superior court, or in any
31 district court, city court or the criminal court of the city of New York
32 provided that such court sealed the record; the applicant must demon-
33 strate to the satisfaction of the court that the records will be used
34 for the purposes of this subparagraph;
35 (xi) for information provided to an individual or entity pursuant to
36 paragraph (e) of subdivision four of section eight hundred thirty-seven
37 of the executive law or for bona fide research purposes provided all
38 identifying information is removed;
39 (xii) when an individual seeks to avail themselves of a public program
40 or benefit, including but not limited to an immigration benefit, for
41 which the sealed records of conviction of a third party are integral to
42 their application for such program or benefit. In such instances, the
43 individual or their attorney shall request the use of sealed records
44 pursuant to a form as prescribed in subdivision twenty-three of section
45 eight hundred thirty-seven of the executive law;
46 (xiii) for the purpose of collection of restitution ordered pursuant
47 to section 60.27 of the penal law. In such instances, use of sealed
48 records shall be requested upon ex parte motion in any superior court,
49 or in any district court, city court or criminal court of the city of
50 New York provided that such court is where the action is pending. The
51 applicant must demonstrate to the satisfaction of the court that the
52 records will be used for the purpose of this subparagraph; and
53 (xiv) transportation network companies that are required or authorized
54 by state law to request criminal history information pursuant to section
55 sixteen hundred ninety-nine of the vehicle and traffic law.
S. 1553--D 4
1 (e) Where the sealing required by this paragraph has not taken place,
2 or where supporting court records cannot be located or have been
3 destroyed, and a defendant or their attorney submits notification of
4 such fact to the division of criminal justice services, as prescribed in
5 subdivision twenty-three of section eight hundred thirty-seven of the
6 executive law, within thirty days of such notice to the division, the
7 conviction shall be sealed as set forth in this subdivision.
8 2. In calculating the time periods under this section, any period of
9 time during which the defendant was incarcerated on a determinate or
10 indeterminate sentence for a period of at least one year shall be
11 excluded and such time period shall be extended by a period equal to the
12 time served under such incarceration. This period shall be calculated
13 from the original sentencing date, notwithstanding any modification or
14 vacatur of the original judgment or sentence.
15 3. Where a conviction is eligible for sealing pursuant to this section
16 before, on, or after the effective date of this section, the commission-
17 er of the division of criminal justice services shall immediately notify
18 the office of court administration, the court of conviction and the
19 heads of all appropriate police departments, prosecutors' offices and
20 law enforcement agencies that the conviction is sealed. Upon receipt of
21 such notification, records of or relating to such conviction shall be
22 immediately sealed pursuant to this section. Where conviction records
23 are sealed pursuant to section 160.50 or 160.59 of this article, the
24 requirements of such sections shall apply.
25 (a) Any such entity that possesses information, records, documents or
26 papers related to the eligible conviction shall seal them as follows:
27 (i) Every photograph of such defendant and photographic plates or
28 proof, and all palmprints, fingerprints and retina scans taken or made
29 of such individual pursuant to the provisions of this article in regard
30 to the eligible conviction, and all duplicates, reproductions, and
31 copies thereof, except a digital fingerprint that is on file with the
32 division of criminal justice services for a conviction that has not been
33 sealed pursuant to this section shall be marked as sealed by the divi-
34 sion of criminal justice services and by any police department,
35 prosecutor's office or law enforcement agency having any such photo-
36 graph, photographic plate or proof, palmprint, fingerprints or retina
37 scan in its possession or under its control by conspicuously indicating
38 on the face of the record or at the beginning of the digitized file of
39 the record that the record has been designated as sealed. Where finger-
40 prints subject to the provisions of this section have been received by
41 the division of criminal justice services and have been filed by the
42 division as digital images, such images may remain unsealed, provided
43 that a fingerprint card of the individual is on file with the division
44 which was not sealed pursuant to this section.
45 (ii) Every official record and paper and duplicates and copies there-
46 of, including, but not limited to, judgments and orders of a court but
47 not including published court decisions or opinions or records and
48 briefs on appeal, relating to the conviction, on file with the agency
49 shall be marked as sealed by conspicuously indicating on the face of the
50 record or at the beginning of the digitized file of the record that the
51 record has been designated as sealed.
52 (b) Third-party agencies shall seal information and all records, docu-
53 ments and papers relating to the eligible conviction as follows:
54 (i) Every police department, prosecutor's office or law enforcement
55 agency, including the division of criminal justice services, which tran-
56 smitted or otherwise forwarded to any agency of the United States or of
S. 1553--D 5
1 any other state or jurisdiction outside of this state copies of any such
2 photographs, photographic plates or proofs, palmprints, fingerprints or
3 retina scans, shall forthwith formally inform such agency in writing
4 that the matter has been sealed and request in writing that all such
5 copies be marked as sealed by conspicuously indicating on the face of
6 the record or at the beginning of the digitized file of the record that
7 the record has been designated as sealed.
8 (ii) Every official record and paper and duplicates and copies there-
9 of, including, but not limited to, judgments and orders of a court but
10 not including published court decisions or opinions or records and
11 briefs on appeal, relating to the conviction, on file with the agency
12 shall be marked as sealed by conspicuously indicating on the face of the
13 record or at the beginning of the digitized file of the record that the
14 record has been designated as sealed.
15 4. (a) Nothing in this section requires the sealing or destruction of
16 DNA information maintained in the New York state DNA database of such
17 individual pursuant to the provisions of the executive law in regard to
18 the eligible conviction.
19 (b) Nothing in this section requires the sealing or destruction of
20 records maintained by the department of motor vehicles, and nothing in
21 this section shall be construed to contravene the vehicle and traffic
22 law, the federal driver's privacy protection act (18 U.S.C 2721 et.
23 seq.), the REAL ID Act of 2005 (Public Law 109-13; 49 U.S.C. 30301
24 note), section 7209 of the Intelligence Reform and Terrorism Prevention
25 Act of 1986 (49 U.S.C. 31311), or regulations promulgated pursuant to
26 any such chapter or act.
27 (c) The division of criminal justice services is authorized to
28 disclose a conviction that is sealed pursuant to this section to enti-
29 ties that are required by federal law, or by rules and regulations
30 promulgated by a self-regulatory organization created under federal law,
31 to consider sealed convictions. Such entities must certify to the divi-
32 sion that they are required by federal law, or by rules and regulations
33 promulgated by a self-regulatory organization that has been created
34 under federal law, to make an inquiry about or consider records sealed
35 pursuant to this section for purposes of employment, licensing, or
36 clearance. To the extent permitted by federal law, a record sealed
37 pursuant to this section may not be considered a conviction that would
38 prohibit the employment, licensing or clearance of the defendant.
39 (d) Nothing in this section shall prohibit entities required by feder-
40 al law, or by rules and regulations promulgated by a self-regulatory
41 organization that has been created under federal law, from making an
42 inquiry about or considering an applicant's criminal history for
43 purposes of employment, licensing, or clearance from inquiring into
44 convictions sealed pursuant to this section.
45 (e) In any civil action, an official record of a conviction that has
46 been sealed pursuant to this section may not be introduced as evidence
47 of negligence against a person or entity that provided employment,
48 contract labor or services, volunteer work, licensing, tenancy, a home
49 purchase, a mortgage, an education, a loan, or insurance if such record
50 was sealed and was not provided to the person or entity by or on behalf
51 of a governmental entity in accordance with this section in response to
52 such person's or entity's authorized and timely request for conviction
53 history information.
54 (f) A person or entity described in this subdivision, acting reason-
55 ably and in good faith, may not have a duty to investigate the fact of a
56 prior conviction that has been sealed pursuant to this section.
S. 1553--D 6
1 (g) The division of criminal justice services is authorized to
2 disclose a conviction that is sealed pursuant to this section to the
3 state department of education office of professional discipline for
4 purposes of investigating professional misconduct as defined by subpara-
5 graph (i) of paragraph (a) of subdivision five of section sixty-five
6 hundred nine of the education law. The office of professional discipline
7 must certifiy to the division that it is investigating an individual
8 licensed to practice a profession pursuant to article one hundred thirty
9 of the education law for professional misconduct as defined by subpara-
10 graph (i) of paragraph (a) of subdivison five of section sixty-five
11 hundred nine of the education law. Nothing in this section shall prohib-
12 it the office of professional discipline from inquiring about or consid-
13 ering convictions sealed pursuant to this section in such proceedings.
14 5. No defendant shall be required or permitted to waive eligibility
15 for sealing pursuant to this section as part of a plea of guilty,
16 sentence or any agreement related to a conviction for a violation of the
17 laws of this state. Any such waiver is void and unenforceable.
18 6. Sealing as set forth in subdivision three of this section is with-
19 out prejudice to a defendant or their attorney seeking further relief
20 pursuant to section 440.10 of this chapter. Nothing in this section
21 shall diminish or abrogate any rights or remedies otherwise available to
22 the defendant.
23 7. All records for a conviction subject to sealing under this section
24 where the conviction was entered on or before the effective date of this
25 section shall receive the appropriate relief promptly and, in any event,
26 no later than two years after such effective date.
27 8. A conviction which is sealed pursuant to this section is included
28 within the definition of a conviction for the purposes of any criminal
29 proceeding in which the fact of a prior conviction would enhance a
30 penalty or is an element of the offense charged.
31 9. Any defendant claiming to be aggrieved by a violation of this
32 section shall have a cause of action in any court of appropriate juris-
33 diction for damages, including punitive damages, and such other remedies
34 as may be appropriate. The provisions of this article shall also be
35 enforceable by the division of human rights pursuant to the powers and
36 procedures set forth in article fifteen of the executive law.
37 § 2. Section 845-d of the executive law is amended by adding new
38 subdivision 4 to read as follows:
39 4. Nothing in this section shall authorize the division to provide
40 criminal history information that is sealed pursuant to section 160.57
41 of the criminal procedure law to any entity other than those explicitly
42 authorized by that section to receive or access such information.
43 § 3. Section 837 of the executive law is amended by adding three new
44 subdivisions 23, 24 and 25 to read as follows:
45 23. Promulgate a standardized form for use by individuals to notify
46 the division of criminal justice services of convictions subject to
47 sealing under section 160.57 of the criminal procedure law, but for
48 which the division has not taken the requisite action for related
49 records.
50 24. Promulgate a certification process whereby individuals seeking use
51 of sealed records pursuant to subparagraph (xii) of paragraph (d) of
52 subdivision one of section 160.57 of the criminal procedure law may
53 request and access records.
54 25. Adopt, amend and rescind such regulations as may be necessary to
55 effectuate the provisions of subparagraph (vii) of paragraph (d) of
56 subdivision one of section 160.57 of the criminal procedure law to
S. 1553--D 7
1 determine entities authorized to receive sealed records for purposes of
2 occupations that involve regular and substantial unsupervised or unre-
3 stricted physical contact with children as defined in subdivision one of
4 section three hundred seventy-one of the social services law, and
5 vulnerable persons, as defined in subdivision fifteen of section four
6 hundred eighty-eight of the social services law.
7 § 4. Subdivision 16 of section 296 of the executive law, as amended by
8 section 2 of subpart O of part II of chapter 55 of the laws of 2019, is
9 amended to read as follows:
10 16. It shall be an unlawful discriminatory practice, unless specif-
11 ically required or permitted by statute, for any person, agency, bureau,
12 corporation or association, including the state and any political subdi-
13 vision thereof, to make any inquiry about, whether in any form of appli-
14 cation or otherwise, or to act upon adversely to the individual
15 involved, any arrest or criminal accusation of such individual not then
16 pending against that individual which was followed by a termination of
17 that criminal action or proceeding in favor of such individual, as
18 defined in subdivision two of section 160.50 of the criminal procedure
19 law, or by an order adjourning the criminal action in contemplation of
20 dismissal, pursuant to section 170.55, 170.56, 210.46, 210.47, or 215.10
21 of the criminal procedure law, or by a youthful offender adjudication,
22 as defined in subdivision one of section 720.35 of the criminal proce-
23 dure law, or by a conviction for a violation sealed pursuant to section
24 160.55 of the criminal procedure law or by a conviction which is sealed
25 pursuant to section 160.59 or 160.58 of the criminal procedure law, or
26 by a conviction which is sealed pursuant to section 160.57 of the crimi-
27 nal procedure law, except where such conviction record is accessed
28 pursuant to subparagraph (vi) or (vii) of paragraph (d) of subdivision
29 one of section 160.57 of the criminal procedure law, in connection with
30 the licensing, housing, employment, including volunteer positions, or
31 providing of credit or insurance to such individual; provided, further,
32 that no person shall be required to divulge information pertaining to
33 any arrest or criminal accusation of such individual not then pending
34 against that individual which was followed by a termination of that
35 criminal action or proceeding in favor of such individual, as defined in
36 subdivision two of section 160.50 of the criminal procedure law, or by
37 an order adjourning the criminal action in contemplation of dismissal,
38 pursuant to section 170.55 or 170.56, 210.46, 210.47 or 215.10 of the
39 criminal procedure law, or by a youthful offender adjudication, as
40 defined in subdivision one of section 720.35 of the criminal procedure
41 law, or by a conviction for a violation sealed pursuant to section
42 160.55 of the criminal procedure law, or by a conviction which is sealed
43 pursuant to section 160.58 or 160.59 of the criminal procedure law, or
44 by a conviction which is sealed pursuant to section 160.57 of the crimi-
45 nal procedure law, except where such conviction record is accessed
46 pursuant to subparagraph (vi) or (vii) of paragraph (d) of subdivision
47 one of section 160.57 of the criminal procedure law. An individual
48 required or requested to provide information in violation of this subdi-
49 vision may respond as if the arrest, criminal accusation, or disposition
50 of such arrest or criminal accusation did not occur. The provisions of
51 this subdivision shall not apply to the licensing activities of govern-
52 mental bodies in relation to the regulation of guns, firearms and other
53 deadly weapons or in relation to an application for employment as a
54 police officer or peace officer as those terms are defined in subdivi-
55 sions thirty-three and thirty-four of section 1.20 of the criminal
56 procedure law; provided further that the provisions of this subdivision
S. 1553--D 8
1 shall not apply to an application for employment or membership in any
2 law enforcement agency with respect to any arrest or criminal accusation
3 which was followed by a youthful offender adjudication, as defined in
4 subdivision one of section 720.35 of the criminal procedure law, or by a
5 conviction for a violation sealed pursuant to section 160.55 of the
6 criminal procedure law, or by a conviction which is sealed pursuant to
7 section 160.58 or 160.59 of the criminal procedure law, or by a
8 conviction which is sealed pursuant to section 160.57 of the criminal
9 procedure law. For purposes of this subdivision, an action which has
10 been adjourned in contemplation of dismissal, pursuant to section 170.55
11 or 170.56, 210.46, 210.47 or 215.10 of the criminal procedure law, shall
12 not be considered a pending action, unless the order to adjourn in
13 contemplation of dismissal is revoked and the case is restored to the
14 calendar for further prosecution.
15 § 5. Section 9 of the correction law, as added by section 2 of part OO
16 of chapter 56 of the laws of 2010, the section heading as amended by
17 chapter 322 of the laws of 2021, is amended to read as follows:
18 § 9. Access to information of incarcerated individuals via the inter-
19 net. Notwithstanding any provision of law to the contrary, any informa-
20 tion relating to the conviction of a person[, except for a person
21 convicted of an offense that would make such person ineligible for merit
22 time under section eight hundred three of this chapter or an offense for
23 which registration as a sex offender is required as set forth in subdi-
24 vision two or three of section one hundred sixty-eight-a of this chap-
25 ter,] that is posted on a website maintained by or for the department,
26 under article six of the public officers law, may be posted on such
27 website for a period not to exceed [five] three years after the expira-
28 tion of such person's sentence of imprisonment and at the conclusion of
29 any period of parole or post-release supervision[; provided, however,
30 that in the case of a person who has been committed to the department on
31 more than one occasion, the department may post conviction information
32 relating to any prior commitment on such website for a period not to
33 exceed five years after the expiration of such person's sentence of
34 imprisonment and any period of parole or post-release supervision aris-
35 ing from the most recent commitment to the department].
36 § 6. Severability. If any provision of this act or the application
37 thereof to any person, corporation or circumstances is held invalid,
38 such invalidity shall not affect other provisions or applications of the
39 act which can be given effect without the invalid provision or applica-
40 tion, and to this end the provisions of this act are declared to be
41 severable.
42 § 7. This act shall take effect on the one hundred twentieth day after
43 it shall have become a law.
