STATE OF NEW YORK ________________________________________________________________________ 3193 2017-2018 Regular Sessions IN ASSEMBLY January 27, 2017 ___________ Introduced by M. of A. RAIA, ARROYO, JAFFEE -- Multi-Sponsored by -- M. of A. McLAUGHLIN -- 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 § 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 offenses. 6 1. For the purposes of this section, the term "eligible offense" shall 7 be: (a) a misdemeanor offense defined in the penal law, provided that an 8 eligible offense shall not mean a misdemeanor offense defined in article 9 one hundred twenty except assault in the third degree as defined by 10 section 120.00, unless committed in the course of a domestic violence 11 incident, one hundred twenty-one, one hundred thirty, one hundred thir- 12 ty-five, one hundred fifty, two hundred thirty-five, two hundred forty- 13 five, two hundred sixty, two hundred sixty-three, two hundred sixty-five 14 or article four hundred of the penal law. An eligible offense shall also 15 not include any one or more of the following: criminal solicitation in 16 the fourth degree as defined by subdivision two of section 100.05; 17 conspiracy in the fifth degree as defined in section 105.05, punishment 18 as defined in subdivision seven of section 110.05, criminal facilitation 19 in the fourth degree as defined by section 115.00, criminal obstruction 20 of breathing or blood circulation as defined in section 121.11, issuing 21 abortional articles as defined in section 125.60, criminal mischief in 22 the fourth degree as defined in section 145.00, criminal tampering in 23 the second degree as defined in section 145.15, tampering with a consum- 24 er product in the second degree as defined in section 145.40, welfare EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD05443-01-7A. 3193 2 1 fraud in the fifth degree as defined in section 158.05, criminal use of 2 a public benefit card in the second degree as defined in section 158.30, 3 unlawful use of a credit card, debit card or public benefit card as 4 defined in section 165.17, fraudulent obtaining a signature as defined 5 in section 165.20, fraudulently accosting as defined in section 165.30, 6 forgery in the third degree as defined in section 170.05, criminal 7 possession of an anti-security item as defined in section 170.47, falsi- 8 fying business records in the second degree as defined in section 9 175.05, tampering with public records in the second degree as defined in 10 section 175.20, offering a false instrument for filing in the second 11 degree as defined in section 175.30, issuing a false financial statement 12 as defined in section 175.45, insurance fraud in the fifth degree as 13 defined in section 176.10, health care fraud in the fifth degree as 14 defined in section 177.05, commercial bribing in the second degree as 15 defined in section 180.00, commercial bribe receiving in the second 16 degree as defined in section 180.05, rent gouging in the third degree as 17 defined in section 180.55, rent gouging in the second degree as defined 18 in section 180.56, fraud in insolvency as defined in section 185.00, 19 fraud involving a security interest as defined in section 185.05, frau- 20 dulent disposition of mortgaged property as defined in section 185.10, 21 fraudulent disposition of property subject to a conditional sale 22 contract as defined in section 185.15, residential mortgage fraud in the 23 fifth degree as defined in section 187.05, issuing a bad check as 24 defined in section 190.05, criminal sale of a police uniform as defined 25 in section 190.27, misconduct by corporate official as defined in 26 section 190.35, making a false statement of credit terms as defined in 27 section 190.55, scheme to defraud in the second degree as defined in 28 section 190.60, scheme to defraud the state by unlawfully selling 29 prescriptions as defined in section 190.70, criminal use of an access 30 device in the second degree as defined in section 190.75, identity theft 31 in the third degree as defined in section 190.78, unlawful possession of 32 a skimmer device in the second degree as defined in section 190.85, 33 official misconduct as defined in section 195.00, killing or injuring a 34 police animal as defined in section 195.06, refusing to aid a peace or 35 police officer as defined in section 195.10, harming an animal trained 36 to aid a person with a disability in the second degree as defined in 37 section 195.11, harming an animal trained to aid a person with a disa- 38 bility in the first degree as defined in section 195.12, escape in the 39 third degree as defined in section 205.05, absconding from temporary 40 release in the second degree as defined in section 205.16, absconding 41 from a furlough program as defined in section 205.18, promoting prison 42 contraband in the second degree as defined in section 205.20, hindering 43 prosecution in the third degree as defined in section 205.55, making an 44 apparently false sworn statement in the second degree as defined in 45 section 210.35, making a punishable false written statement as defined 46 in section 210.45, tampering with a witness in the forth degree as 47 defined in section 215.10, criminal contempt in the second degree as 48 defined in section 215.50, criminal possession of methamphetamine manu- 49 facturing material in the second degree as defined in section 220.70, 50 promoting prostitution in the fourth degree as defined in section 51 230.20, riot in the second degree as defined in section 240.05, inciting 52 to riot as defined in section 240.08, disruption or disturbance of a 53 religious service, funeral, burial or memorial service as defined in 54 section 240.21, harassment in the first degree as defined in section 55 240.25, criminal nuisance in the second degree as defined by section 56 240.45, disseminating a false registered sex offender notice as definedA. 3193 3 1 in section 240.48, criminal interference with health care services or 2 religious worship in the second degree as defined in section 240.70, 3 interference, harassment or intimidation of a service animal as defined 4 in section 242.05, harming a service animal in the second degree as 5 defined in section 242.10, dissemination of an unlawful surveillance 6 image in the second degree as defined in section 250.55, non-support of 7 a child in the second degree as defined in section 260.05, misrepresen- 8 tation by a child day care provider as defined in section 260.31, unlaw- 9 ful fleeing a police officer in a motor vehicle in the third degree as 10 defined in section 270.25 or any specified offense subject to the 11 provision relating to hate crimes as defined in section 485.05 of the 12 penal law. Additionally, an eligible offense shall not include criminal 13 solicitation, conspiracy, attempt, or criminal facilitation to commit 14 any violent felony offense as defined in section 70.02 of the penal law, 15 or any sex offense as defined under subdivision two of section one 16 hundred sixty-eight-a of the correction law. "Eligible offense" shall 17 also include reckless driving, as defined by section twelve hundred 18 twelve of the vehicle and traffic law; 19 (b) any non-criminal offense; or 20 (c) any youthful offender adjudication. 21 2. A person having a conviction for no more than three offenses, who 22 does not stand convicted of any felony, and who is not required to main- 23 tain registration under article six-C of the correction law, may peti- 24 tion the court which issued the conviction to conditionally seal up to 25 three eligible offenses when: 26 (a) at least five years have passed since the completion of a sentence 27 on an eligible offense; and 28 (b) such person has not been convicted of a penal law offense during 29 the last seven years and is not the subject of an undisposed arrest. 30 3. The petition authorized by this section shall be filed in the court 31 of record that imposed the sentence upon petitioner for the eligible 32 offense. On the defendant's motion, the court which imposed the sentence 33 for the eligible offense may order that the official records and papers 34 relating to the arrest, prosecution and conviction records for the 35 matter which they disposed of be conditionally sealed. Any sealing 36 ordered pursuant to this section shall also render the associated arrest 37 a nullity. Prior to sealing any arrest records, prosecutions, or 38 convictions: 39 (a) the sentencing court must request and receive from the division of 40 criminal justice services or the federal bureau of investigation a fing- 41 erprint based criminal history record of the defendant, including any 42 sealed or suppressed information. The division of criminal justice 43 services shall also include a criminal history report, if any, from the 44 federal bureau of investigation regarding any criminal history informa- 45 tion that occurred in other jurisdictions. The division is hereby 46 authorized to receive such information from the federal bureau of inves- 47 tigation for this purpose. The parties shall be permitted to examine 48 these records; 49 (b) the defendant or court must identify the eligible offense or 50 offenses for which relief may be granted; 51 (c) the court must receive documentation that the sentence imposed on 52 the eligible offense or eligible offenses has been completed, or if no 53 such documentation is reasonably available, a sworn affidavit that the 54 sentences imposed on the prior offenses have been completed;A. 3193 4 1 (d) the defendant must pay a two hundred dollar filing fee. The filing 2 fee may be waived in cases of indigence as determined by the presiding 3 judge. 4 4. At the request of the defendant or the district attorney the court 5 may conduct a hearing to consider and review any relevant evidence 6 offered by either party that would aid the court in its decision whether 7 to seal the records of the defendant's arrests, prosecutions and 8 convictions. In making such a determination, the court shall consider 9 any relevant factors, including but not limited to: 10 (a) the circumstances and seriousness of the offense or offenses that 11 resulted in the conviction or convictions; 12 (b) the character of the defendant, including what steps the petition- 13 er has taken since the time of the offense toward personal rehabili- 14 tation, including treatment, work, school, or other personal history 15 that demonstrates rehabilitation; 16 (c) the defendant's criminal history; 17 (d) the defendant's civic service record; 18 (e) the impact of sealing the defendant's records upon his or her 19 rehabilitation and his or her successful and productive reentry and 20 reintegration into society, and on public safety; and 21 (f) any statements made by the victim of the offense where there is in 22 fact a victim of the crime. 23 5. A decision granting or denying a motion under this section shall be 24 made in writing and shall state the reasons for the court's ruling, 25 unless the court grants the motion without objection or written response 26 by the prosecutor, in which case the court may issue an order without a 27 written decision. If sealing is denied, the applicant may appeal the 28 decision in accordance with subdivision six of this section, or the 29 applicant may reapply after three years. 30 6. Either party may appeal as of right from the court's order. The 31 appealing party must serve notice of appeal upon the court and the 32 opposing party within thirty days of the issuance of the court order. If 33 the order is appealed by the prosecutor, such notice of appeal shall be 34 deemed a stay of the order to seal the records. The prosecutor shall 35 perfect the appeal within sixty days, or the sealing order shall imme- 36 diately take effect unless the court grants an extension of the time to 37 perfect the appeal upon good cause shown by the prosecutor. The appeal 38 shall be taken to the same court to which the appeal of the original 39 conviction could have been brought. The standard of review at the inter- 40 mediary appellate court shall be abuse of discretion. The decision of an 41 intermediary appellate court shall be appealable to the court of appeals 42 upon leave of the court. 43 7. When a court orders sealing pursuant to this section, all official 44 records and papers relating to the arrests, prosecutions, and 45 convictions, including all duplicates and copies thereof, on file with 46 the division of criminal justice services or any court shall be sealed 47 and not made available to any person or public or private agency; 48 provided, however, the division shall retain any fingerprints, palm- 49 prints, photographs, or digital images of the same. 50 8. When the court orders sealing pursuant to this section, the clerk 51 of such court shall immediately notify the commissioner of the division 52 of criminal justice services and the defendant regarding the records 53 that shall be sealed pursuant to this section. 54 9. Records sealed pursuant to this subdivision shall be made available 55 to: 56 (a) the defendant or the defendant's designated agent;A. 3193 5 1 (b) qualified agencies, as defined in subdivision nine of section 2 eight hundred thirty-five of the executive law, and federal and state 3 law enforcement agencies, when acting within the scope of their law 4 enforcement duties except that records may not be used solely for liti- 5 gation purposes; 6 (c) any state or local officer or agency with responsibility for the 7 issuance of licenses to possess guns, when the person has made applica- 8 tion for such a license; or 9 (d) any prospective employer of a police officer or peace officer as 10 those terms are defined in subdivisions thirty-three and thirty-four of 11 section 1.20 of this chapter, in relation to an application for employ- 12 ment as a police officer or peace officer; provided, however, that every 13 person who is an applicant for the position of police officer or peace 14 officer shall be furnished with a copy of all records obtained under 15 this paragraph and afforded an opportunity to make an explanation there- 16 to. 17 10. The court shall not seal the defendant's record pursuant to this 18 section while any charged offense is pending. 19 11. If, subsequent to the sealing of records pursuant to this subdivi- 20 sion, a person who is the subject of such records is found guilty of any 21 misdemeanor or felony offense, such records shall be unsealed immediate- 22 ly and remain unsealed. 23 12. The right to make an application under this section may not be 24 waived at the time a guilty plea is entered on any case in New York 25 state. 26 § 3. Subdivision 16 of section 296 of the executive law, as separately 27 amended by section 3 of part N and section 14 of part AAA of chapter 56 28 of the laws of 2009, is amended to read as follows: 29 16. It shall be an unlawful discriminatory practice, unless specif- 30 ically required or permitted by statute, for any person, agency, bureau, 31 corporation or association, including the state and any political subdi- 32 vision thereof, to make any inquiry about, whether in any form of appli- 33 cation or otherwise, or to act upon adversely to the individual 34 involved, any arrest or criminal accusation of such individual not then 35 pending against that individual which was followed by a termination of 36 that criminal action or proceeding in favor of such individual, as 37 defined in subdivision two of section 160.50 of the criminal procedure 38 law, or by a youthful offender adjudication, as defined in subdivision 39 one of section 720.35 of the criminal procedure law, or by a conviction 40 for a violation sealed pursuant to section 160.55 of the criminal proce- 41 dure law or by a conviction which is sealed pursuant to section 160.58 42 of the criminal procedure law, or by a conviction which is sealed pursu- 43 ant to section 160.65 of the criminal procedure law, in connection with 44 the licensing, employment or providing of credit or insurance to such 45 individual; provided, further, that no person shall be required to 46 divulge information pertaining to any arrest or criminal accusation of 47 such individual not then pending against that individual which was 48 followed by a termination of that criminal action or proceeding in favor 49 of such individual, as defined in subdivision two of section 160.50 of 50 the criminal procedure law, or by a youthful offender adjudication, as 51 defined in subdivision one of section 720.35 of the criminal procedure 52 law, or by a conviction for a violation sealed pursuant to section 53 160.55 of the criminal procedure law, or by a conviction which is sealed 54 pursuant to section 160.58 of the criminal procedure law, or by a 55 conviction which is sealed pursuant to section 160.65 of the criminal 56 procedure law. The provisions of this subdivision shall not apply to theA. 3193 6 1 licensing activities of governmental bodies in relation to the regu- 2 lation of guns, firearms and other deadly weapons or in relation to an 3 application for employment as a police officer or peace officer as those 4 terms are defined in subdivisions thirty-three and thirty-four of 5 section 1.20 of the criminal procedure law; provided further that the 6 provisions of this subdivision shall not apply to an application for 7 employment or membership in any law enforcement agency with respect to 8 any arrest or criminal accusation which was followed by a youthful 9 offender adjudication, as defined in subdivision one of section 720.35 10 of the criminal procedure law, or by a conviction for a violation sealed 11 pursuant to section 160.55 of the criminal procedure law, or by a 12 conviction which is sealed pursuant to section 160.58 of the criminal 13 procedure law, or by a conviction which is sealed pursuant to section 14 160.65 of the criminal procedure law. 15 § 4. This act shall take effect on the one hundred eightieth day after 16 it shall have become a law and shall apply to all convictions occurring 17 prior to, on, and after such date.