Bill Text: NY S03281 | 2025-2026 | General Assembly | Introduced

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Bill Title: Provides that certain applicants be eligible for conviction sealing.

Spectrum: Partisan Bill (Democrat 2-0)

Status: (Introduced) 2025-01-24 - REFERRED TO CODES [S03281 Detail]

Download: New_York-2025-S03281-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                          3281

                               2025-2026 Regular Sessions

                    IN SENATE

                                    January 24, 2025
                                       ___________

        Introduced  by  Sens. MYRIE, BRISPORT -- read twice and ordered printed,
          and when printed to be committed to the Committee on Codes

        AN ACT to amend the criminal procedure law, in relation  to  eligibility
          for conviction sealing for certain applicants

          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:

     1    Section 1. Section 160.59 of the criminal procedure law, as  added  by
     2  section  48  of part WWW of chapter 59 of the laws of 2017 and paragraph
     3  (a) of subdivision 2 and subdivision 11 as amended by chapter 60 of  the
     4  laws of 2017, is amended to read as follows:
     5  § 160.59 Sealing of certain convictions.
     6    1.  Definitions:  As  used  in this section, the following terms shall
     7  have the following meanings:
     8    (a) "Eligible offense" shall mean a violation of  subdivision  one  of
     9  section  eleven hundred ninety-two of the vehicle and traffic law or any
    10  crime defined in the laws of this state other than a sex offense defined
    11  in article one hundred thirty of the penal law, an  offense  defined  in
    12  article  two  hundred  sixty-three  of  the  penal law, a felony offense
    13  defined in article one hundred twenty-five of the penal law,  a  violent
    14  felony  offense  defined  in  section  70.02 of the penal law, a class A
    15  felony offense defined in the penal law, a  felony  offense  defined  in
    16  article  one  hundred five of the penal law where the underlying offense
    17  is not an eligible offense, an attempt to commit an offense that is  not
    18  an  eligible offense if the attempt is a felony, or an offense for which
    19  registration as a sex offender is required pursuant to article six-C  of
    20  the  correction  law.    For  the  purposes  of  this section, where the
    21  [defendant] applicant is convicted of more than  one  eligible  offense,
    22  [committed as part of the same criminal transaction as defined in subdi-
    23  vision  two  of  section  40.10 of this chapter, those offenses shall be
    24  considered one eligible offense] charged in more than one count  in  the
    25  same  indictment,  information  or complaint, or where the applicant was

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD07724-01-5
        S. 3281                             2

     1  convicted of more than one eligible offense charged in multiple  indict-
     2  ments,  informations  or complaints filed in the same court prior to the
     3  entry  of  judgment  on  any  of  such  indictments,   informations   or
     4  complaints, all such offenses shall be considered one eligible offense.
     5    (b)  "Sentencing  judge"  shall mean the judge who pronounced sentence
     6  upon the conviction under consideration, or if that judge is  no  longer
     7  sitting  in  a  court  in  the  jurisdiction in which the conviction was
     8  obtained, any other judge who is sitting in the criminal court where the
     9  judgment of conviction was entered.
    10    (c) "Prosecutor" shall mean the prosecutor's  office  that  prosecuted
    11  the eligible offense.
    12    1-a.  The chief administrator of the courts shall, pursuant to section
    13  10.40 of this chapter, prescribe a form application which may be used by
    14  a defendant to apply for sealing pursuant to  this  section.  Such  form
    15  application  shall  include  all the essential elements required by this
    16  section to be included in an application for sealing.  Nothing  in  this
    17  subdivision shall be read to require a defendant to use such form appli-
    18  cation to apply for sealing.
    19    2.  (a)  [A  defendant]  An individual who has been convicted of up to
    20  [two] five eligible criminal offenses but not more than [one] two felony
    21  [offense] offenses may apply to the court in  which  [he  or  she]  such
    22  individual  was  convicted  of the most serious eligible offense to have
    23  such conviction or convictions sealed. If all offenses are offenses with
    24  the same classification, the application shall be made to the  court  in
    25  which the [defendant] applicant was last convicted.
    26    (b) An application shall contain (i) a copy of a certificate of dispo-
    27  sition  or  other  similar  documentation  for any offense for which the
    28  [defendant] applicant has been convicted, or an explanation of why  such
    29  certificate or other documentation is not available; (ii) a sworn state-
    30  ment  of the [defendant] applicant as to whether [he or she] such appli-
    31  cant has filed, or then intends to file, any application for sealing  of
    32  any  other  eligible offense; (iii) a copy of any other such application
    33  that has been filed; and (iv) a sworn statement as to the conviction  or
    34  convictions  for which relief is being sought[; and (v)]. Applicants may
    35  submit a sworn statement of the reason or reasons why the court  should,
    36  in  its  discretion,  grant  such  sealing,  along  with  any supporting
    37  documentation.
    38    (c) A copy of any application for such sealing shall  be  served  upon
    39  the  [district  attorney  of  the county in which the conviction, or, if
    40  more than one, the convictions, was or were  obtained]  prosecutor  that
    41  prosecuted  the  eligible  offense  for which a conviction was obtained.
    42  The [district attorney] prosecutor shall notify the court within  forty-
    43  five  days if [he or she] such prosecutor objects to the application for
    44  sealing. Failure to object within this period shall indicate consent  to
    45  the application.
    46    (d)  When  such  application  is  filed  with  the  court, it shall be
    47  assigned to the sentencing judge unless more  than  one  application  is
    48  filed  in  which  case  the  application  shall be assigned to the local
    49  court, county court or the supreme court of  the  county  in  which  the
    50  criminal  court is located, who shall request and receive from the divi-
    51  sion of criminal justice services a fingerprint based  criminal  history
    52  record  of the [defendant] applicant, including any sealed or suppressed
    53  records. The division of criminal justice services also shall include  a
    54  criminal  history  report,  if  any, from the federal bureau of investi-
    55  gation regarding any criminal history information that occurred in other
    56  jurisdictions. The division is hereby authorized to receive such  infor-
        S. 3281                             3

     1  mation from the federal bureau of investigation for this purpose, and to
     2  make such information available to the court, which may make this infor-
     3  mation available to the district attorney and the [defendant] applicant.
     4    3.  The  sentencing  judge,  or  local,  county or supreme court shall
     5  summarily deny the [defendant's] applicant's application when:
     6    (a) the [defendant] applicant is required to register as a sex  offen-
     7  der pursuant to article six-C of the correction law; or
     8    (b)  the  [defendant] applicant has previously obtained sealing of the
     9  maximum number of convictions allowable under  section  160.58  of  [the
    10  criminal procedure law] this article; or
    11    (c)  the  [defendant] applicant has previously obtained sealing of the
    12  maximum number of convictions allowable under subdivision four  of  this
    13  section; or
    14    (d)  the time period specified in subdivision five of this section has
    15  not yet been satisfied; or
    16    (e) the [defendant] applicant has an undisposed arrest or charge pend-
    17  ing; or
    18    (f) the [defendant] applicant was convicted of any crime that  is  not
    19  eligible  for  sealing under this section after the date of the entry of
    20  [judgement] judgment of the last conviction for which sealing is sought;
    21  or
    22    (g) [the defendant has failed to provide the court with  the  required
    23  sworn  statement  of  the  reasons why the court should grant the relief
    24  requested; or
    25    (h)] the [defendant] applicant has been convicted of  [two]  three  or
    26  more felonies or more than [two] five crimes.
    27    4.  Provided  that  the  application  is  not summarily denied for the
    28  reasons set forth in subdivision three of this section, [a defendant] an
    29  applicant who stands convicted of up to  [two]  five  eligible  criminal
    30  offenses[,]  may  obtain  sealing  of  a violation of subdivision one of
    31  section eleven hundred ninety-two of the vehicle and traffic law and  no
    32  more than [two] five eligible offenses but not more than [one] two felo-
    33  ny [offense] offenses.
    34    5.  Any  eligible offense may be sealed only after [at least ten years
    35  have passed since the imposition of  the  sentence  on  the  defendant's
    36  latest  conviction  or,  if  the  defendant was sentenced to a period of
    37  incarceration, including a period of incarceration imposed  in  conjunc-
    38  tion  with  a sentence of probation, the defendant's latest release from
    39  incarceration. In calculating the ten year period  under  this  subdivi-
    40  sion,  any  period  of  time  the defendant spent incarcerated after the
    41  conviction for which the application for sealing  is  sought,  shall  be
    42  excluded and such ten year period shall be extended by a period or peri-
    43  ods equal to the time served under such incarceration.]:
    44    (a)  at least one year has passed since the date of applicant's latest
    45  conviction if the applicant was  last  convicted  of  a  misdemeanor  or
    46  violation  offense.   In calculating this period, any period of time the
    47  applicant spent incarcerated for this conviction, including a period  of
    48  incarceration imposed in conjunction with a sentence of probation, shall
    49  be excluded and such one year period shall be extended by a period equal
    50  to the time served under such incarceration; or
    51    (b)  at  least  three  years have passed since the date of applicant's
    52  latest conviction if the  applicant  was  last  convicted  of  a  felony
    53  offense.    In calculating this period, any period of time the applicant
    54  spent incarcerated for this conviction, including a period of incarcera-
    55  tion imposed in conjunction with  a  sentence  of  probation,  shall  be
        S. 3281                             4

     1  excluded  and such three year period shall be extended by a period equal
     2  to the time served under such incarceration.
     3    6.  Upon  determining that the application is not subject to mandatory
     4  denial pursuant to subdivision three of this section and that the appli-
     5  cation is opposed by the [district attorney] prosecutor, the  sentencing
     6  judge  or local, county or supreme court shall [conduct a hearing on the
     7  application in order to consider any evidence offered  by  either  party
     8  that  would  aid  the sentencing judge in his or her decision whether to
     9  seal the records of the defendant's convictions. No hearing is  required
    10  if  the  district  attorney  does not oppose the application] inform the
    11  applicant of such applicant's right to supplement their application with
    12  additional materials that would aid the sentencing judge in such judge's
    13  decision or to a hearing on the application in order to  consider  argu-
    14  ments  by  either  party  that  would  aid  the sentencing judge in such
    15  judge's decision. Once the applicant indicates  whether  such  applicant
    16  intends  to  proceed  with  or without supplementation or a hearing, the
    17  sentencing judge or local, county or supreme court, may proceed.
    18    7. [In considering any such application, the sentencing judge or coun-
    19  ty or supreme court shall consider any relevant factors,  including  but
    20  not limited to:
    21    (a)  the  amount  of  time that has elapsed since the defendant's last
    22  conviction;
    23    (b) the circumstances and seriousness of the  offense  for  which  the
    24  defendant is seeking relief, including whether the arrest charge was not
    25  an eligible offense;
    26    (c)  the circumstances and seriousness of any other offenses for which
    27  the defendant stands convicted;
    28    (d) the character of the defendant, including any  measures  that  the
    29  defendant  has  taken  toward  rehabilitation,  such as participating in
    30  treatment programs, work, or schooling, and participating  in  community
    31  service or other volunteer programs;
    32    (e)  any  statements  made  by the victim of the offense for which the
    33  defendant is seeking relief;
    34    (f) the impact of sealing the defendant's record upon his or her reha-
    35  bilitation and upon his or her successful  and  productive  reentry  and
    36  reintegration into society; and
    37    (g)  the impact of sealing the defendant's record on public safety and
    38  upon the public's confidence in and respect for the law] Upon  determin-
    39  ing  that the application is not subject to mandatory denial pursuant to
    40  subdivision three of this section, the sentencing judge or local, county
    41  or supreme court shall order sealing, unless  the  prosecutor  shows  by
    42  clear  and  convincing  evidence  that  exceptional  circumstances weigh
    43  against such relief. In determining  whether  exceptional  circumstances
    44  exist  the court shall consider if the sealing would create an unreason-
    45  able risk to public safety, balanced against the benefit of sealing  the
    46  record  upon the applicant's successful and productive reentry and rein-
    47  tegration into society.
    48    8. When a sentencing judge or local, county or  supreme  court  orders
    49  sealing  pursuant  to  this  section,  all  official records and papers,
    50  including judgments and orders of a court but  not  including  published
    51  court decisions or opinions or records and briefs on appeal, relating to
    52  the arrests, prosecutions, and convictions, including all duplicates and
    53  copies  thereof,  on file with the division of criminal justice services
    54  or any court, police agency or prosecutor's office shall be  sealed  and
    55  not  made  available to any person or public or private agency except as
    56  provided for in subdivision nine of this section; provided, however, the
        S. 3281                             5

     1  division shall retain any fingerprints, palmprints and  photographs,  or
     2  digital  images  of the same.  The clerk of such court shall immediately
     3  notify the commissioner of the division of  criminal  justice  services,
     4  the  heads  of all appropriate police departments and other law enforce-
     5  ment agencies, regarding the records that shall be  sealed  pursuant  to
     6  this  section.  The  clerk  also  shall  notify  any  court in which the
     7  [defendant] applicant has stated, pursuant to paragraph (b) of  subdivi-
     8  sion  two  of this section, that [he or she] such applicant has filed or
     9  intends to file  an  application  for  sealing  of  any  other  eligible
    10  offense.
    11    9. Records sealed pursuant to this section shall be made available to:
    12    (a)  the [defendant] applicant or the [defendant's] applicant's desig-
    13  nated agent;
    14    (b) qualified agencies, as defined  in  subdivision  nine  of  section
    15  eight  hundred  thirty-five  of the executive law, and federal and state
    16  law enforcement agencies, when acting within  the  scope  of  their  law
    17  enforcement duties; or
    18    (c)  any  state or local officer or agency with responsibility for the
    19  issuance of licenses to possess guns, when the person has made  applica-
    20  tion for such a license; or
    21    (d)  any  prospective employer of a police officer or peace officer as
    22  those terms are defined in subdivisions thirty-three and thirty-four  of
    23  section  1.20 of this chapter, in relation to an application for employ-
    24  ment as a police officer or peace officer; provided, however, that every
    25  person who is an applicant for the position of police officer  or  peace
    26  officer  shall  be  furnished  with a copy of all records obtained under
    27  this paragraph and afforded an opportunity to make an explanation there-
    28  to; or
    29    (e) the criminal justice information services division of the  federal
    30  bureau  of  investigation,  for the purposes of responding to queries to
    31  the national instant criminal background check system regarding attempts
    32  to purchase or otherwise take possession of firearms, as defined  in  18
    33  USC 921 (a) (3).
    34    10. [A conviction which is sealed pursuant to this section is included
    35  within  the  definition of a conviction for the purposes of any criminal
    36  proceeding in which the fact of  a  prior  conviction  would  enhance  a
    37  penalty or is an element of the offense charged.
    38    11.]  No [defendant] applicant shall be required or permitted to waive
    39  eligibility for sealing pursuant to this section as part of  a  plea  of
    40  guilty,  sentence or any agreement related to a conviction for an eligi-
    41  ble offense and any such waiver shall be deemed void  and  wholly  unen-
    42  forceable.
    43    11.  Denial  under  this  section  is  without prejudice to subsequent
    44  relief under this section.
    45    12. An application under this section, and all  pertinent  papers  and
    46  documents,  shall  be  confidential and may not be made available to any
    47  person or public or private agency except where specifically  authorized
    48  by the court.
    49    § 2. This act shall take effect immediately.