Bill Text: NY A02699 | 2015-2016 | General Assembly | Amended
Bill Title: Permits the sealing of records of certain nonviolent misdemeanor or non-sexual misdemeanor criminal offenses; defines the term "eligible misdemeanor"; excludes certain misdemeanor offenses as eligible misdemeanors for the purposes of conditional sealing; lists certain eligibility requirements for sealing; provides an order granting sealing under this section shall restore the individual concerned, in the contemplation of the laws, to the status such individual occupied before the arrest or institution of criminal proceedings for the crime that was the subject of the sealing.
Spectrum: Partisan Bill (Democrat 16-0)
Status: (Engrossed - Dead) 2016-05-03 - amended on third reading 2699a [A02699 Detail]
Download: New_York-2015-A02699-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 2699--A Cal. No. 123 2015-2016 Regular Sessions IN ASSEMBLY January 20, 2015 ___________ Introduced by M. of A. LENTOL -- Multi-Sponsored by -- M. of A. FARRELL, GOTTFRIED, HARRIS, HEVESI, HOOPER, LAVINE, O'DONNELL, ORTIZ, PEOPLES- STOKES, PERRY, PRETLOW, ROBINSON, SCHIMEL, TITUS -- read once and referred to the Committee on Codes -- advanced to a third reading, amended and ordered reprinted, retaining its place on the order of third reading AN ACT to amend the criminal procedure law and the executive law, in relation to permitting the sealing of records of certain nonviolent misdemeanor or non-sexual misdemeanor offenses The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. This act shall be known and may be cited as the "second 2 chance for ex-offenders act". 3 § 2. The criminal procedure law is amended by adding a new section 4 160.65 to read as follows: 5 § 160.65 Conditional sealing of certain misdemeanor offenses. 6 1. For the purposes of this section, the term "eligible misdemeanor" 7 shall be a misdemeanor offense defined in the penal law, provided that 8 an eligible misdemeanor shall not include any sex offense as defined 9 under subdivision two of section one hundred sixty-eight-a of the 10 correction law. 11 2. A person having a conviction for no more than three misdemeanors, 12 who does not stand convicted of any felony, or who is not required to 13 maintain registration under article six-C of the correction law, may 14 petition the court to conditionally seal up to three eligible misdemea- 15 nors when: 16 (a) at least five years have passed since the completion of a sentence 17 on an eligible misdemeanor; and 18 (b) such person has not been convicted of a crime during the last five 19 years and is not the subject of an undisposed arrest. 20 3. The petition authorized by this section shall be filed in the court 21 of record that last imposed a sentence upon petitioner for an eligible 22 misdemeanor. On the defendant's motion, the court may order that all 23 official records and papers relating to the arrest, prosecution and EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD02961-03-6A. 2699--A 2 1 conviction records for no more than three of the defendant's prior 2 eligible misdemeanors be conditionally sealed. The court may only seal 3 the records of the defendant's arrests, prosecutions and convictions 4 when: 5 (a) the sentencing court has requested and received from the division 6 of criminal justice services or the federal bureau of investigation a 7 fingerprint based criminal history record of the defendant, including 8 any sealed or suppressed information. The division of criminal justice 9 services shall also include a criminal history report, if any, from the 10 federal bureau of investigation regarding any criminal history informa- 11 tion that occurred in other jurisdictions. The division is hereby 12 authorized to receive such information from the federal bureau of inves- 13 tigation for this purpose. The parties shall be permitted to examine 14 these records; 15 (b) the defendant or court has identified the misdemeanor conviction 16 or convictions for which relief may be granted; 17 (c) the court has received documentation that the sentences imposed on 18 the eligible misdemeanor convictions have been completed, or if no such 19 documentation is reasonably available, a sworn affidavit that the 20 sentences imposed on the prior misdemeanors have been completed; and 21 (d) the court has notified the district attorney of each jurisdiction 22 in which the defendant has been convicted of an offense with respect to 23 which sealing is sought, and the court or courts of record for such 24 offenses, that the court is considering sealing the records of the 25 defendant's eligible misdemeanor convictions. Both the district attorney 26 and the court shall be given a reasonable opportunity, which shall not 27 be less than thirty days, in which to comment and submit materials to 28 aid the court in making such a determination. When the court notifies a 29 district attorney of a sealing application, the district attorney shall 30 provide notice to the victim, if any, of the sealing application by 31 mailing written notice to the victim's last-known address. For purposes 32 of this section "victim" means any person who has sustained physical or 33 financial injury to person or to property as a direct result of the 34 misdemeanor crime or misdemeanor crimes for which sealing is applied. 35 4. At the request of the defendant or the district attorney of a coun- 36 ty in which the defendant committed a crime that is the subject of the 37 sealing application, the court may conduct a hearing to consider and 38 review any relevant evidence offered by either party that would aid the 39 court in its decision whether to seal the records of the defendant's 40 arrests, prosecutions and convictions. In making such a determination, 41 the court shall consider any relevant factors, including but not limited 42 to: 43 (a) the circumstances and seriousness of the offense or offenses that 44 resulted in the conviction or convictions; 45 (b) the character of the defendant, including what steps the petition- 46 er has taken since the time of the offense toward personal rehabili- 47 tation, including treatment, work, school, or other personal history 48 that demonstrates rehabilitation; 49 (c) the defendant's criminal history; 50 (d) the impact of sealing the defendant's records upon his or her 51 rehabilitation and his or her successful and productive reentry and 52 reintegration into society, and on public safety; and 53 (e) any statements made by the victim of the offense where there is in 54 fact a victim of the crime. 55 5. After a court declares its willingness to grant the defendant's 56 request for conditional sealing pursuant to this section, but before theA. 2699--A 3 1 court orders sealing pursuant to this section, the defendant shall pay a 2 mandatory conditional sealing fee. The mandatory conditional sealing fee 3 will be a fee of eighty dollars, however, such filing fee shall be 4 waived in cases of indigence. The mandatory filing fee shall be paid to 5 the clerk of the court or administrative tribunal that rendered the 6 conviction. Within the first ten days of the month following collection 7 of the mandatory filing fee, the collecting authority if it is an admin- 8 istrative tribunal, or a town or village justice court, shall then pay 9 such money to the state comptroller who shall deposit such money in the 10 state treasury pursuant to section one hundred twenty-one of the state 11 finance law to the credit of the indigent legal services fund. If such 12 collecting authority is any other court of the unified court system, it 13 shall, within such period, pay such money attributable to the mandatory 14 filing fee to the state commissioner of taxation and finance to the 15 credit of the indigent legal services fund established by section nine- 16 ty-eight-b of the state finance law. 17 6. When a court orders sealing pursuant to this section, all official 18 records and papers relating to the arrests, prosecutions, and 19 convictions, including all duplicates and copies thereof, on file with 20 the division of criminal justice services or any court shall be sealed 21 and not made available to any person or public or private agency; 22 provided, however, the division shall retain any fingerprints, palm- 23 prints, photographs, or digital images of the same. 24 7. When the court orders sealing pursuant to this section, the clerk 25 of such court shall immediately notify the commissioner of the division 26 of criminal justice services, and any court that sentenced the defendant 27 for an offense which has been conditionally sealed, regarding the 28 records that shall be sealed pursuant to this section. 29 8. Records sealed pursuant to this subdivision shall be made available 30 to: 31 (a) the defendant or the defendant's designated agent; 32 (b) qualified agencies, as defined in subdivision nine of section 33 eight hundred thirty-five of the executive law, and federal and state 34 law enforcement agencies, when acting within the scope of their law 35 enforcement duties; 36 (c) any state or local officer or agency with responsibility for the 37 issuance of licenses to possess guns, when the person has made applica- 38 tion for such a license; or 39 (d) any prospective employer of a police officer or peace officer as 40 those terms are defined in subdivisions thirty-three and thirty-four of 41 section 1.20 of this chapter, in relation to an application for employ- 42 ment as a police officer or peace officer; provided, however, that every 43 person who is an applicant for the position of police officer or peace 44 officer shall be furnished with a copy of all records obtained under 45 this paragraph and afforded an opportunity to make an explanation there- 46 to. 47 9. The court shall not seal the defendant's record pursuant to this 48 section while any charged offense is pending. 49 10. If, subsequent to the sealing of records pursuant to this subdivi- 50 sion, the person who is the subject of such records is arrested for or 51 formally charged with any misdemeanor or felony offense, such records 52 shall be unsealed immediately and remain unsealed; provided, however, 53 that if such new misdemeanor or felony arrest results in a termination 54 in favor of the accused as defined in subdivision three of section 55 160.50 of this article or by conviction for a non-criminal offense asA. 2699--A 4 1 described in section 160.55 of this article, such unsealed records shall 2 be conditionally sealed pursuant to this section. 3 11. No defendant shall be required or permitted to waive eligibility 4 for conditional sealing pursuant to this section as part of a plea of 5 guilty, sentence or any agreement related to a conviction for an eligi- 6 ble offense and any such waiver shall be deemed void and wholly unen- 7 forceable. 8 § 3. Subdivision 16 of section 296 of the executive law, as separately 9 amended by section 3 of part N and section 14 of part AAA of chapter 56 10 of the laws of 2009, is amended to read as follows: 11 16. It shall be an unlawful discriminatory practice, unless specif- 12 ically required or permitted by statute, for any person, agency, bureau, 13 corporation or association, including the state and any political subdi- 14 vision thereof, to make any inquiry about, whether in any form of appli- 15 cation or otherwise, or to act upon adversely to the individual 16 involved, any arrest or criminal accusation of such individual not then 17 pending against that individual which was followed by a termination of 18 that criminal action or proceeding in favor of such individual, as 19 defined in subdivision two of section 160.50 of the criminal procedure 20 law, or by a youthful offender adjudication, as defined in subdivision 21 one of section 720.35 of the criminal procedure law, or by a conviction 22 for a violation sealed pursuant to section 160.55 of the criminal proce- 23 dure law or by a conviction which is sealed pursuant to section 160.58 24 of the criminal procedure law, or by a conviction which is sealed pursu- 25 ant to section 160.65 of the criminal procedure law, in connection with 26 the licensing, employment or providing of credit or insurance to such 27 individual; provided, further, that no person shall be required to 28 divulge information pertaining to any arrest or criminal accusation of 29 such individual not then pending against that individual which was 30 followed by a termination of that criminal action or proceeding in favor 31 of such individual, as defined in subdivision two of section 160.50 of 32 the criminal procedure law, or by a youthful offender adjudication, as 33 defined in subdivision one of section 720.35 of the criminal procedure 34 law, or by a conviction for a violation sealed pursuant to section 35 160.55 of the criminal procedure law, or by a conviction which is sealed 36 pursuant to section 160.58 of the criminal procedure law, or by a 37 conviction which is sealed pursuant to section 160.65 of the criminal 38 procedure law. The provisions of this subdivision shall not apply to the 39 licensing activities of governmental bodies in relation to the regu- 40 lation of guns, firearms and other deadly weapons or in relation to an 41 application for employment as a police officer or peace officer as those 42 terms are defined in subdivisions thirty-three and thirty-four of 43 section 1.20 of the criminal procedure law; provided further that the 44 provisions of this subdivision shall not apply to an application for 45 employment or membership in any law enforcement agency with respect to 46 any arrest or criminal accusation which was followed by a youthful 47 offender adjudication, as defined in subdivision one of section 720.35 48 of the criminal procedure law, or by a conviction for a violation sealed 49 pursuant to section 160.55 of the criminal procedure law, or by a 50 conviction which is sealed pursuant to section 160.58 of the criminal 51 procedure law, or by a conviction which is sealed pursuant to section 52 160.65 of the criminal procedure law. 53 § 4. This act shall take effect on the one hundred eightieth day after 54 it shall have become a law and shall apply to all convictions occurring 55 prior to, on, and after such date.
