Bill Text: NY A02699 | 2015-2016 | General Assembly | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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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-Introduced.html

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                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         2699
                              2015-2016 Regular Sessions
                                 I N  A S S E M B L Y
                                   January 20, 2015
                                      ___________
       Introduced by M. of A. LENTOL -- Multi-Sponsored by -- M. of A. FARRELL,
         GOTTFRIED,  HEVESI,  HOOPER, LAVINE, O'DONNELL, ORTIZ, PEOPLES-STOKES,
         PERRY, PRETLOW, ROBINSON, SCARBOROUGH, SCHIMEL, TITUS -- read once and
         referred to the Committee on Codes
       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    S 2. The criminal procedure law is amended by  adding  a  new  section
    4  160.65 to read as follows:
    5  S 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 AN OFFENSE DURING THE LAST
   19  FIVE 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
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD02961-01-5
       A. 2699                             2
    1  OFFICIAL RECORDS AND PAPERS RELATING  TO  THE  ARREST,  PROSECUTION  AND
    2  CONVICTION  RECORDS  FOR  NO  MORE  THAN  THREE OF THE DEFENDANT'S PRIOR
    3  ELIGIBLE MISDEMEANORS BE CONDITIONALLY SEALED.  THE COURT MAY ONLY  SEAL
    4  THE  RECORDS  OF  THE  DEFENDANT'S ARRESTS, PROSECUTIONS AND CONVICTIONS
    5  WHEN:
    6    (A) THE SENTENCING COURT HAS REQUESTED AND RECEIVED FROM THE  DIVISION
    7  OF  CRIMINAL  JUSTICE  SERVICES OR THE FEDERAL BUREAU OF INVESTIGATION A
    8  FINGERPRINT BASED CRIMINAL HISTORY RECORD OF  THE  DEFENDANT,  INCLUDING
    9  ANY  SEALED  OR SUPPRESSED INFORMATION. THE DIVISION OF CRIMINAL JUSTICE
   10  SERVICES SHALL ALSO INCLUDE A CRIMINAL HISTORY REPORT, IF ANY, FROM  THE
   11  FEDERAL  BUREAU OF INVESTIGATION REGARDING ANY CRIMINAL HISTORY INFORMA-
   12  TION THAT OCCURRED  IN  OTHER  JURISDICTIONS.  THE  DIVISION  IS  HEREBY
   13  AUTHORIZED TO RECEIVE SUCH INFORMATION FROM THE FEDERAL BUREAU OF INVES-
   14  TIGATION  FOR  THIS  PURPOSE.  THE PARTIES SHALL BE PERMITTED TO EXAMINE
   15  THESE RECORDS;
   16    (B) THE DEFENDANT OR COURT HAS IDENTIFIED THE  MISDEMEANOR  CONVICTION
   17  OR CONVICTIONS FOR WHICH RELIEF MAY BE GRANTED;
   18    (C) THE COURT HAS RECEIVED DOCUMENTATION THAT THE SENTENCES IMPOSED ON
   19  THE  ELIGIBLE MISDEMEANOR CONVICTIONS HAVE BEEN COMPLETED, OR IF NO SUCH
   20  DOCUMENTATION IS  REASONABLY  AVAILABLE,  A  SWORN  AFFIDAVIT  THAT  THE
   21  SENTENCES IMPOSED ON THE PRIOR MISDEMEANORS HAVE BEEN COMPLETED; AND
   22    (D)  THE COURT HAS NOTIFIED THE DISTRICT ATTORNEY OF EACH JURISDICTION
   23  IN WHICH THE DEFENDANT HAS BEEN CONVICTED OF AN OFFENSE WITH RESPECT  TO
   24  WHICH  SEALING  IS  SOUGHT,  AND  THE COURT OR COURTS OF RECORD FOR SUCH
   25  OFFENSES, THAT THE COURT IS  CONSIDERING  SEALING  THE  RECORDS  OF  THE
   26  DEFENDANT'S ELIGIBLE MISDEMEANOR CONVICTIONS. BOTH THE DISTRICT ATTORNEY
   27  AND  THE  COURT SHALL BE GIVEN A REASONABLE OPPORTUNITY, WHICH SHALL NOT
   28  BE LESS THAN THIRTY DAYS, IN WHICH TO COMMENT AND  SUBMIT  MATERIALS  TO
   29  AID  THE COURT IN MAKING SUCH A DETERMINATION. WHEN THE COURT NOTIFIES A
   30  DISTRICT ATTORNEY OF A SEALING APPLICATION, THE DISTRICT ATTORNEY  SHALL
   31  PROVIDE  NOTICE  TO  THE  VICTIM,  IF ANY, OF THE SEALING APPLICATION BY
   32  MAILING WRITTEN NOTICE TO THE VICTIM'S LAST-KNOWN ADDRESS. FOR  PURPOSES
   33  OF  THIS SECTION "VICTIM" MEANS ANY PERSON WHO HAS SUSTAINED PHYSICAL OR
   34  FINANCIAL INJURY TO PERSON OR TO PROPERTY AS  A  DIRECT  RESULT  OF  THE
   35  MISDEMEANOR CRIME OR MISDEMEANOR CRIMES FOR WHICH SEALING IS APPLIED.
   36    4. AT THE REQUEST OF THE DEFENDANT OR THE DISTRICT ATTORNEY OF A COUN-
   37  TY  IN  WHICH THE DEFENDANT COMMITTED A CRIME THAT IS THE SUBJECT OF THE
   38  SEALING APPLICATION, THE COURT MAY CONDUCT A  HEARING  TO  CONSIDER  AND
   39  REVIEW  ANY RELEVANT EVIDENCE OFFERED BY EITHER PARTY THAT WOULD AID THE
   40  COURT IN ITS DECISION WHETHER TO SEAL THE  RECORDS  OF  THE  DEFENDANT'S
   41  ARRESTS,  PROSECUTIONS AND CONVICTIONS.  IN MAKING SUCH A DETERMINATION,
   42  THE COURT SHALL CONSIDER ANY RELEVANT FACTORS, INCLUDING BUT NOT LIMITED
   43  TO:
   44    (A) THE CIRCUMSTANCES AND SERIOUSNESS OF THE OFFENSE OR OFFENSES  THAT
   45  RESULTED IN THE CONVICTION OR CONVICTIONS;
   46    (B) THE CHARACTER OF THE DEFENDANT, INCLUDING WHAT STEPS THE PETITION-
   47  ER  HAS  TAKEN  SINCE  THE TIME OF THE OFFENSE TOWARD PERSONAL REHABILI-
   48  TATION, INCLUDING TREATMENT, WORK, SCHOOL,  OR  OTHER  PERSONAL  HISTORY
   49  THAT DEMONSTRATES REHABILITATION;
   50    (C) THE DEFENDANT'S CRIMINAL HISTORY;
   51    (D)  THE  IMPACT  OF  SEALING  THE DEFENDANT'S RECORDS UPON HIS OR HER
   52  REHABILITATION AND HIS OR HER  SUCCESSFUL  AND  PRODUCTIVE  REENTRY  AND
   53  REINTEGRATION INTO SOCIETY, AND ON PUBLIC SAFETY; AND
   54    (E) ANY STATEMENTS MADE BY THE VICTIM OF THE OFFENSE WHERE THERE IS IN
   55  FACT A VICTIM OF THE CRIME.
       A. 2699                             3
    1    5.  AFTER  A  COURT  DECLARES ITS WILLINGNESS TO GRANT THE DEFENDANT'S
    2  REQUEST FOR CONDITIONAL SEALING PURSUANT TO THIS SECTION, BUT BEFORE THE
    3  COURT ORDERS SEALING PURSUANT TO THIS SECTION, THE DEFENDANT SHALL PAY A
    4  MANDATORY CONDITIONAL SEALING FEE. THE MANDATORY CONDITIONAL SEALING FEE
    5  WILL  BE  A  FEE  OF  EIGHTY  DOLLARS, HOWEVER, SUCH FILING FEE SHALL BE
    6  WAIVED IN CASES OF INDIGENCE. THE MANDATORY FILING FEE SHALL BE PAID  TO
    7  THE  CLERK  OF  THE  COURT  OR ADMINISTRATIVE TRIBUNAL THAT RENDERED THE
    8  CONVICTION. WITHIN THE FIRST TEN DAYS OF THE MONTH FOLLOWING  COLLECTION
    9  OF THE MANDATORY FILING FEE, THE COLLECTING AUTHORITY IF IT IS AN ADMIN-
   10  ISTRATIVE  TRIBUNAL,  OR A TOWN OR VILLAGE JUSTICE COURT, SHALL THEN PAY
   11  SUCH MONEY TO THE STATE COMPTROLLER WHO SHALL DEPOSIT SUCH MONEY IN  THE
   12  STATE  TREASURY  PURSUANT TO SECTION ONE HUNDRED TWENTY-ONE OF THE STATE
   13  FINANCE LAW TO THE CREDIT OF THE INDIGENT LEGAL SERVICES FUND.  IF  SUCH
   14  COLLECTING  AUTHORITY IS ANY OTHER COURT OF THE UNIFIED COURT SYSTEM, IT
   15  SHALL, WITHIN SUCH PERIOD, PAY SUCH MONEY ATTRIBUTABLE TO THE  MANDATORY
   16  FILING  FEE  TO  THE  STATE  COMMISSIONER OF TAXATION AND FINANCE TO THE
   17  CREDIT OF THE INDIGENT LEGAL SERVICES FUND ESTABLISHED BY SECTION  NINE-
   18  TY-EIGHT-B OF THE STATE FINANCE LAW.
   19    6.  WHEN A COURT ORDERS SEALING PURSUANT TO THIS SECTION, ALL OFFICIAL
   20  RECORDS  AND  PAPERS  RELATING  TO  THE   ARRESTS,   PROSECUTIONS,   AND
   21  CONVICTIONS,  INCLUDING  ALL DUPLICATES AND COPIES THEREOF, ON FILE WITH
   22  THE DIVISION OF CRIMINAL JUSTICE SERVICES OR ANY COURT SHALL  BE  SEALED
   23  AND  NOT  MADE  AVAILABLE  TO  ANY  PERSON  OR PUBLIC OR PRIVATE AGENCY;
   24  PROVIDED, HOWEVER, THE DIVISION SHALL  RETAIN  ANY  FINGERPRINTS,  PALM-
   25  PRINTS, PHOTOGRAPHS, OR DIGITAL IMAGES OF THE SAME.
   26    7.  WHEN  THE COURT ORDERS SEALING PURSUANT TO THIS SECTION, THE CLERK
   27  OF SUCH COURT SHALL IMMEDIATELY NOTIFY THE COMMISSIONER OF THE  DIVISION
   28  OF CRIMINAL JUSTICE SERVICES, AND ANY COURT THAT SENTENCED THE DEFENDANT
   29  FOR  AN  OFFENSE  WHICH  HAS  BEEN  CONDITIONALLY  SEALED, REGARDING THE
   30  RECORDS THAT SHALL BE SEALED PURSUANT TO THIS SECTION.
   31    8. RECORDS SEALED PURSUANT TO THIS SUBDIVISION SHALL BE MADE AVAILABLE
   32  TO:
   33    (A) THE DEFENDANT OR THE DEFENDANT'S DESIGNATED AGENT;
   34    (B) QUALIFIED AGENCIES, AS DEFINED  IN  SUBDIVISION  NINE  OF  SECTION
   35  EIGHT  HUNDRED  THIRTY-FIVE  OF THE EXECUTIVE LAW, AND FEDERAL AND STATE
   36  LAW ENFORCEMENT AGENCIES, WHEN ACTING WITHIN  THE  SCOPE  OF  THEIR  LAW
   37  ENFORCEMENT DUTIES;
   38    (C)  ANY  STATE OR LOCAL OFFICER OR AGENCY WITH RESPONSIBILITY FOR THE
   39  ISSUANCE OF LICENSES TO POSSESS GUNS, WHEN THE PERSON HAS MADE  APPLICA-
   40  TION FOR SUCH A LICENSE; OR
   41    (D)  ANY  PROSPECTIVE EMPLOYER OF A POLICE OFFICER OR PEACE OFFICER AS
   42  THOSE TERMS ARE DEFINED IN SUBDIVISIONS THIRTY-THREE AND THIRTY-FOUR  OF
   43  SECTION  1.20 OF THIS CHAPTER, IN RELATION TO AN APPLICATION FOR EMPLOY-
   44  MENT AS A POLICE OFFICER OR PEACE OFFICER; PROVIDED, HOWEVER, THAT EVERY
   45  PERSON WHO IS AN APPLICANT FOR THE POSITION OF POLICE OFFICER  OR  PEACE
   46  OFFICER  SHALL  BE  FURNISHED  WITH A COPY OF ALL RECORDS OBTAINED UNDER
   47  THIS PARAGRAPH AND AFFORDED AN OPPORTUNITY TO MAKE AN EXPLANATION THERE-
   48  TO.
   49    9. THE COURT SHALL NOT SEAL THE DEFENDANT'S RECORD  PURSUANT  TO  THIS
   50  SECTION WHILE ANY CHARGED OFFENSE IS PENDING.
   51    10. IF, SUBSEQUENT TO THE SEALING OF RECORDS PURSUANT TO THIS SUBDIVI-
   52  SION,  THE  PERSON WHO IS THE SUBJECT OF SUCH RECORDS IS ARRESTED FOR OR
   53  FORMALLY CHARGED WITH ANY MISDEMEANOR OR FELONY  OFFENSE,  SUCH  RECORDS
   54  SHALL  BE  UNSEALED  IMMEDIATELY AND REMAIN UNSEALED; PROVIDED, HOWEVER,
   55  THAT IF SUCH NEW MISDEMEANOR OR FELONY ARREST RESULTS IN  A  TERMINATION
   56  IN  FAVOR  OF  THE  ACCUSED  AS  DEFINED IN SUBDIVISION THREE OF SECTION
       A. 2699                             4
    1  160.50 OF THIS ARTICLE OR BY CONVICTION FOR A  NON-CRIMINAL  OFFENSE  AS
    2  DESCRIBED IN SECTION 160.55 OF THIS ARTICLE, SUCH UNSEALED RECORDS SHALL
    3  BE CONDITIONALLY SEALED PURSUANT TO THIS SECTION.
    4    S 3. Subdivision 16 of section 296 of the executive law, as separately
    5  amended  by section 3 of part N and section 14 of part AAA of chapter 56
    6  of the laws of 2009, is amended to read as follows:
    7    16. It shall be an unlawful discriminatory  practice,  unless  specif-
    8  ically required or permitted by statute, for any person, agency, bureau,
    9  corporation or association, including the state and any political subdi-
   10  vision thereof, to make any inquiry about, whether in any form of appli-
   11  cation  or  otherwise,  or  to  act  upon  adversely  to  the individual
   12  involved, any arrest or criminal accusation of such individual not  then
   13  pending  against  that individual which was followed by a termination of
   14  that criminal action or proceeding  in  favor  of  such  individual,  as
   15  defined  in  subdivision two of section 160.50 of the criminal procedure
   16  law, or by a youthful offender adjudication, as defined  in  subdivision
   17  one  of section 720.35 of the criminal procedure law, or by a conviction
   18  for a violation sealed pursuant to section 160.55 of the criminal proce-
   19  dure law or by a conviction which is sealed pursuant to  section  160.58
   20  of the criminal procedure law, OR BY A CONVICTION WHICH IS SEALED PURSU-
   21  ANT  TO SECTION 160.65 OF THE CRIMINAL PROCEDURE LAW, in connection with
   22  the licensing, employment or providing of credit or  insurance  to  such
   23  individual;  provided,  further,  that  no  person  shall be required to
   24  divulge information pertaining to any arrest or criminal  accusation  of
   25  such  individual  not  then  pending  against  that individual which was
   26  followed by a termination of that criminal action or proceeding in favor
   27  of such individual, as defined in subdivision two of section  160.50  of
   28  the  criminal  procedure law, or by a youthful offender adjudication, as
   29  defined in subdivision one of section 720.35 of the  criminal  procedure
   30  law,  or  by  a  conviction  for  a violation sealed pursuant to section
   31  160.55 of the criminal procedure law, or by a conviction which is sealed
   32  pursuant to section 160.58 of  the  criminal  procedure  law,  OR  BY  A
   33  CONVICTION  WHICH  IS  SEALED PURSUANT TO SECTION 160.65 OF THE CRIMINAL
   34  PROCEDURE LAW. The provisions of this subdivision shall not apply to the
   35  licensing activities of governmental bodies in  relation  to  the  regu-
   36  lation  of  guns, firearms and other deadly weapons or in relation to an
   37  application for employment as a police officer or peace officer as those
   38  terms are  defined  in  subdivisions  thirty-three  and  thirty-four  of
   39  section  1.20  of  the criminal procedure law; provided further that the
   40  provisions of this subdivision shall not apply  to  an  application  for
   41  employment  or  membership in any law enforcement agency with respect to
   42  any arrest or criminal accusation  which  was  followed  by  a  youthful
   43  offender  adjudication,  as defined in subdivision one of section 720.35
   44  of the criminal procedure law, or by a conviction for a violation sealed
   45  pursuant to section 160.55 of  the  criminal  procedure  law,  or  by  a
   46  conviction  which  is  sealed pursuant to section 160.58 of the criminal
   47  procedure law, OR BY A CONVICTION WHICH IS SEALED  PURSUANT  TO  SECTION
   48  160.65 OF THE CRIMINAL PROCEDURE LAW.
   49    S 4. This act shall take effect on the one hundred eightieth day after
   50  it  shall have become a law and shall apply to all convictions occurring
   51  prior to, on, and after such date.