Bill Text: NY S03417 | 2023-2024 | General Assembly | Introduced

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

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced) 2024-01-03 - REFERRED TO CODES [S03417 Detail]

Download: New_York-2023-S03417-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                          3417

                               2023-2024 Regular Sessions

                    IN SENATE

                                    January 31, 2023
                                       ___________

        Introduced  by  Sen.  MYRIE  -- 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] for which they were charged in separate
    25  counts of one indictment, information or complaint, or  for  which  they

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD00748-01-3
        S. 3417                             2

     1  were  charged  in  two  or more indictments, informations or complaints,
     2  filed in the same court prior to entry of judgment under  any  of  them,
     3  those offenses shall be considered one eligible offense.
     4    (b)  "Sentencing  judge"  shall mean the judge who pronounced sentence
     5  upon the conviction under consideration, or if that judge is  no  longer
     6  sitting  in  a  court  in  the  jurisdiction in which the conviction was
     7  obtained, any other judge who is sitting in the criminal court where the
     8  judgment of conviction was entered.
     9    (c) "Prosecutor" shall mean the prosecutor's  office  that  prosecuted
    10  the eligible offense.
    11    1-a.  The chief administrator of the courts shall, pursuant to section
    12  10.40 of this chapter, prescribe a form application which may be used by
    13  a defendant to apply for sealing pursuant to  this  section.  Such  form
    14  application  shall  include  all the essential elements required by this
    15  section to be included in an application for sealing.  Nothing  in  this
    16  subdivision shall be read to require a defendant to use such form appli-
    17  cation to apply for sealing.
    18    2.  (a)  [A  defendant]  An individual who has been convicted of up to
    19  [two] four eligible criminal offenses  but  not  more  than  one  felony
    20  offense  may  apply  to  the  court  in  which [he or she was] they were
    21  convicted of [the] their most serious  eligible  offense  to  have  such
    22  conviction  or convictions sealed. If all offenses are offenses with the
    23  same classification, the application shall be made to the court in which
    24  the [defendant] applicant was last convicted.
    25    (b) An application shall contain (i) a copy of a certificate of dispo-
    26  sition or other similar documentation for  any  offense  for  which  the
    27  [defendant]  applicant has been convicted, or an explanation of why such
    28  certificate or other documentation is not available; (ii) a sworn state-
    29  ment of the [defendant] applicant as to whether [he  or  she  has]  they
    30  have  filed, or then intends to file, any application for sealing of any
    31  other eligible offense; (iii) a copy of any other such application  that
    32  has  been  filed;  and  (iv)  a  sworn statement as to the conviction or
    33  convictions for which relief is being sought[; and (v)]. Applicants  may
    34  submit  a sworn statement of the reason or reasons why the court should,
    35  in its  discretion,  grant  such  sealing,  along  with  any  supporting
    36  documentation.
    37    (c)  A  copy  of any application for such sealing shall be served upon
    38  the [district attorney of the county in which  the  conviction,  or,  if
    39  more  than  one, the convictions, was or were obtained] prosecutor which
    40  prosecuted the eligible offense for which  a  conviction  was  obtained.
    41  The  [district attorney] prosecutor shall notify the court within forty-
    42  five days if [he or she objects] they  object  to  the  application  for
    43  sealing.  If the prosecutor has not notified the court within forty-five
    44  days  of their objection to the application for sealing, the court shall
    45  proceed with decision on 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. 3417                             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 or more felo-
    26  nies or more than [two] four 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] four 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] four eligible offenses but  not  more  than  one  felony
    33  offense.
    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    6.  Upon  determining that the application is not subject to mandatory
    45  denial pursuant to subdivision three of this section and that the appli-
    46  cation is opposed by the [district attorney] prosecutor, the  sentencing
    47  judge  or local, county or supreme court shall [conduct a hearing on the
    48  application in order to consider any evidence offered  by  either  party
    49  that  would  aid  the sentencing judge in his or her decision whether to
    50  seal the records of the defendant's convictions. No hearing is  required
    51  if  the  district  attorney  does not oppose the application] inform the
    52  applicant of their right to supplement their application with additional
    53  materials that would aid the sentencing judge in their decision or to  a
    54  hearing  on  the  application  in  order to consider arguments by either
    55  party that would aid the sentencing judge in their  decision.  Once  the
    56  applicant  indicates  whether  they  intend  to  proceed with or without
        S. 3417                             4

     1  supplementation or a hearing, the sentencing judge or local,  county  or
     2  supreme  court,  may proceed.  The court may hold a hearing upon request
     3  of the prosecutor.
     4    7. [In considering any such application, the sentencing judge or coun-
     5  ty  or  supreme court shall consider any relevant factors, including but
     6  not limited to:
     7    (a) the amount of time that has elapsed  since  the  defendant's  last
     8  conviction;
     9    (b)  the  circumstances  and  seriousness of the offense for which the
    10  defendant is seeking relief, including whether the arrest charge was not
    11  an eligible offense;
    12    (c) the circumstances and seriousness of any other offenses for  which
    13  the defendant stands convicted;
    14    (d)  the  character  of the defendant, including any measures that the
    15  defendant has taken toward  rehabilitation,  such  as  participating  in
    16  treatment  programs,  work, or schooling, and participating in community
    17  service or other volunteer programs;
    18    (e) any statements made by the victim of the  offense  for  which  the
    19  defendant is seeking relief;
    20    (f) the impact of sealing the defendant's record upon his or her reha-
    21  bilitation  and  upon  his  or her successful and productive reentry and
    22  reintegration into society; and
    23    (g) the impact of sealing the defendant's record on public safety  and
    24  upon  the public's confidence in and respect for the law] Upon determin-
    25  ing that the application is not subject to mandatory denial pursuant  to
    26  subdivision three of this section, the sentencing judge or local, county
    27  or  supreme  court shall order sealing, unless the prosecutor shows that
    28  exceptional circumstances weigh  against  such  relief.  In  determining
    29  whether  exceptional circumstances exist the court shall consider if the
    30  sealing would create an unreasonable risk  to  public  safety,  balanced
    31  against  the benefit of sealing the record upon the applicant's success-
    32  ful and productive reentry and reintegration into society.
    33    8. When a sentencing judge or local, county or  supreme  court  orders
    34  sealing  pursuant  to  this  section,  all  official records and papers,
    35  including judgments and orders of a court but  not  including  published
    36  court decisions or opinions or records and briefs on appeal, relating to
    37  the arrests, prosecutions, and convictions, including all duplicates and
    38  copies  thereof,  on file with the division of criminal justice services
    39  or any court, police agency or prosecutor's office shall be  sealed  and
    40  not  made  available to any person or public or private agency except as
    41  provided for in subdivision nine of this section; provided, however, the
    42  division shall retain any fingerprints, palmprints and  photographs,  or
    43  digital  images  of the same.  The clerk of such court shall immediately
    44  notify the commissioner of the division of  criminal  justice  services,
    45  the  heads  of all appropriate police departments and other law enforce-
    46  ment agencies, regarding the records that shall be  sealed  pursuant  to
    47  this  section.  The  clerk  also  shall  notify  any  court in which the
    48  [defendant] applicant has stated, pursuant to paragraph (b) of  subdivi-
    49  sion  two  of  this  section,  that  [he  or she has] they have filed or
    50  [intends] intend to file an application for sealing of any other  eligi-
    51  ble offense.
    52    9. Records sealed pursuant to this section shall be made available to:
    53    (a)  the [defendant] applicant or the [defendant's] applicant's desig-
    54  nated agent;
    55    (b) qualified agencies, as defined  in  subdivision  nine  of  section
    56  eight  hundred  thirty-five  of the executive law, and federal and state
        S. 3417                             5

     1  law enforcement agencies, when acting within  the  scope  of  their  law
     2  enforcement duties; or
     3    (c)  any  state or local officer or agency with responsibility for the
     4  issuance of licenses to possess guns, when the person has made  applica-
     5  tion for such a license; or
     6    (d)  any  prospective employer of a police officer or peace officer as
     7  those terms are defined in subdivisions thirty-three and thirty-four  of
     8  section  1.20 of this chapter, in relation to an application for employ-
     9  ment as a police officer or peace officer; provided, however, that every
    10  person who is an applicant for the position of police officer  or  peace
    11  officer  shall  be  furnished  with a copy of all records obtained under
    12  this paragraph and afforded an opportunity to make an explanation there-
    13  to; or
    14    (e) the criminal justice information services division of the  federal
    15  bureau  of  investigation,  for the purposes of responding to queries to
    16  the national instant criminal background check system regarding attempts
    17  to purchase or otherwise take possession of firearms, as defined  in  18
    18  USC 921 (a) (3).
    19    10.  A conviction which is sealed pursuant to this section is included
    20  within the definition of a conviction for the purposes of  any  criminal
    21  proceeding  in  which  the  fact  of  a prior conviction would enhance a
    22  penalty or is an element of the offense charged.
    23    11. No [defendant] person shall be  required  or  permitted  to  waive
    24  eligibility  for  sealing  pursuant to this section as part of a plea of
    25  guilty, sentence or any agreement related to a conviction for an  eligi-
    26  ble  offense  and  any such waiver shall be deemed void and wholly unen-
    27  forceable.
    28    12. Denial under this  section  is  without  prejudice  to  subsequent
    29  relief under this section.
    30    13.  An  application  under this section, and all pertinent papers and
    31  documents, shall be confidential and may not be made  available  to  any
    32  person  or public or private agency except where specifically authorized
    33  by the court.
    34    § 2. This act shall take effect on the ninetieth day  after  it  shall
    35  have  become  a  law and shall apply to all offenses committed prior to,
    36  on, or after such date.