NY State Senate Bill 2009-S5958

Senate Bill S5958

2009-2010 Legislative Session

Provides for the sealing of the court records involving convictions of violations and traffic infractions

download bill text pdf

Archive: Last Bill Status - In Senate Committee Codes Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 06, 2010	referred to codes
Jun 19, 2009	referred to rules

2009-S5958 (ACTIVE) - Details

Current Committee:: Senate Codes
Law Section:: Criminal Procedure Law
Laws Affected:: Add §160.57, amd §160.50, CP L

2009-S5958 (ACTIVE) - Summary

Provides for the sealing of the court records involving convictions of violations and traffic infractions, except loitering, loitering for the purpose of engaging in prostitution and driving while ability impaired.

2009-S5958 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S5958

 TITLE OF BILL :
An act to amend the criminal procedure law, in relation to sealing
court records involving convictions for certain petty offenses


This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of her Local
Courts Advisory Committee.

This measure would add a new section 160.57 to the Criminal Procedure
Law to authorize the sealing of court records relating to convictions
for petty offenses.

Currently, section 160.55 of the Criminal Procedure Law authorizes the
sealing of records relating to convictions for non-criminal petty
offenses such as disorderly conduct or trespass, except for the petty
offenses of loitering (Penal Law § 240.35(3)), loitering for the
purpose of engaging in prostitution (Penal Law § 240.37(2)) and
driving while ability impaired (Vehicle and Traffic Law § 1192(1)),
which are expressly exempt from the scope of this provision. The
records that are sealed under this provision are the files of the
police department, the District Attorney's Office, and fingerprints on
file with the Division of Criminal Justice Services. The official
records and papers of such cases on file with the court, however, are

not sealed.

The availability to the public of court records of a conviction for a
petty offense can have an adverse collateral consequence for the
defendant, who having pled guilty to the petty offense as part of a
plea bargain that avoids a conviction for a crime and who is otherwise
living a law-abiding life, finds that he or she cannot secure
employment or purchase a home because of the conviction for a petty
offense.

The sealing procedure authorized by this proposal is as follows: A
person who has been convicted of a petty offense must wait one year
from the date of sentence before he or she can apply to the court,
with notice to the District Attorney, for an order sealing his or her
court record. In connection with the application, the District
Attorney may consent to the sealing or oppose it, whereupon the court
would hold a summary hearing to determine whether the application
should be granted. The District Attorney need not wait for the
defendant's application and can apply for an order keeping the court
record unsealed. In the absence of an application by the defendant or
the District Attorney, the court records are automatically sealed 36
months from the date of sentence.

The procedure authorized by this measure seeks to address a
prosecutor's public safety concern that a particular defendant not
have the benefit of a sealing and the operational concerns of courts
facing the prospect of having to process numerous sealing
applications. First, unlike the automatic sealing requirements
currently in place under the Criminal Procedure Law, this measure
would allow the sealing procedure to proceed unless the District
Attorney's Office objects and has an opportunity to be heard. Second,
the 12- and 36- month deadlines are intended to create cooling off
periods that would prevent a deluge of sealing applications to the
local criminal court that would otherwise be made were applications to
seal permitted at the time of sentence. The 12- and 36- month periods
also would provide adequate time for the District Attorney to
determine whether the defendant has fully complied with the terms of
his or her sentence.


This measure, which would have no fiscal impact upon the State, would
take effect on the first day of November after becoming a law.

 2008 LEGISLATIVE HISTORY :

None. New measure.

2009-S5958 (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  5958

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                              June 19, 2009
                               ___________

Introduced  by  Sen.  SCHNEIDERMAN -- (at request of the Office of Court
  Administration) -- read twice and ordered printed, and when printed to
  be committed to the Committee on Rules

AN ACT to amend the criminal procedure law, in relation to sealing court
  records involving convictions for certain petty offenses

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  The  criminal  procedure  law  is amended by adding a new
section 160.57 to read as follows:
S 160.57 APPLICATION FOR SEALING OF COURT RECORDS FOLLOWING  TERMINATION
           OF CRIMINAL ACTION BY CONVICTION FOR NONCRIMINAL OFFENSE.
  1.  A  PERSON  CONVICTED OF A TRAFFIC INFRACTION OR A VIOLATION, OTHER
THAN LOITERING AS DESCRIBED IN PARAGRAPH (D) OR (E) OF  SUBDIVISION  ONE
OF  SECTION  160.10  OF  THIS CHAPTER OR OPERATING A MOTOR VEHICLE WHILE
ABILITY IMPAIRED AS DESCRIBED  IN  SUBDIVISION  ONE  OF  SECTION  ELEVEN
HUNDRED  NINETY-TWO  OF  THE VEHICLE AND TRAFFIC LAW, AND WHOSE CASE WAS
SEALED PURSUANT TO SECTION 160.55 OF THIS ARTICLE, MAY MOVE  IN  ACCORD-
ANCE  WITH THE PROVISIONS OF THIS SECTION FOR AN ORDER SEALING THE COURT
RECORD OF SUCH ACTION OR PROCEEDING. IN THE ABSENCE OF AN EARLIER APPLI-
CATION FOR AN ORDER TO SEAL, THE RECORD OF A  CONVICTION  OF  A  TRAFFIC
INFRACTION OR A VIOLATION PURSUANT TO THIS SUBDIVISION SHALL BE AUTOMAT-
ICALLY  SEALED  BY  OPERATION  OF LAW THIRTY-SIX MONTHS FROM THE DATE OF
SENTENCE, UNLESS THE PEOPLE FILE A NOTICE OF OPPOSITION UPON  NOTICE  TO
THE DEFENDANT, NO LESS THAN TWENTY DAYS PRIOR TO THE SEALING DATE AND NO
LATER THAN NINETY DAYS PRIOR TO THE EXPIRATION OF THIRTY-SIX MONTHS.
  2.  A  MOTION  TO SEAL MAY BE FILED IN WRITING WITH THE LOCAL CRIMINAL
COURT OR SUPERIOR COURT IN WHICH THE CONVICTION  AND  SENTENCE  OCCURRED
NOT  EARLIER  THAN  TWELVE  MONTHS FOLLOWING THE DATE OF SENTENCE.  SUCH
MOTION MUST BE MADE UPON  NOT  LESS  THAN  TWENTY  DAYS  NOTICE  TO  THE
DISTRICT ATTORNEY.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10475-01-9

S. 5958                             2

  3.  UPON  MOTION  TO  SEAL  THE COURT RECORD PURSUANT TO THIS SECTION,
WHERE BOTH PARTIES CONSENT TO SUCH SEALING, THE  COURT  SHALL  ENTER  AN
ORDER  SEALING  THE COURT RECORD UNLESS THE INTERESTS OF JUSTICE REQUIRE
OTHERWISE. FOR PURPOSES OF THIS SUBDIVISION, A PARTY WHO IS GIVEN  WRIT-
TEN  NOTICE OF A MOTION TO SEAL PURSUANT TO THIS SECTION SHALL BE DEEMED
TO CONSENT TO SUCH APPLICATION UNLESS, PRIOR TO THE RETURN DATE OF  SUCH
MOTION, SUCH PARTY FILES A NOTICE OF OPPOSITION THERETO WITH THE COURT.
  4.  WHERE  THE  PEOPLE FILE A NOTICE OF OPPOSITION PRIOR TO THE RETURN
DATE OR THE PROPOSED SEALING DATE PURSUANT TO SUBDIVISION ONE, THE COURT
SHALL CONDUCT A HEARING ON THE RETURN DATE IN WHICH IT MAY  RECEIVE  ANY
RELEVANT  EVIDENCE.  UPON  REQUEST,  THE  COURT  MUST GRANT A REASONABLE
ADJOURNMENT TO EITHER PARTY TO ENABLE SUCH  PARTY  TO  PREPARE  FOR  THE
HEARING.  FOLLOWING  SUCH  HEARING,  AN  ORDER  TO SEAL PURSUANT TO THIS
SECTION SHALL BE GRANTED UNLESS THE DISTRICT  ATTORNEY  DEMONSTRATES  TO
THE  SATISFACTION  OF  THE  COURT  THAT THE INTERESTS OF JUSTICE REQUIRE
OTHERWISE. WHERE THE COURT HAS DETERMINED THAT SEALING PURSUANT TO  THIS
SECTION  IS  NOT  IN THE INTERESTS OF JUSTICE, THE COURT SHALL PUT FORTH
ITS REASONS ON THE RECORD.
  5. UPON ENTRY OF AN ORDER TO SEAL, THE COURT RECORD OF SUCH ACTION  OR
PROCEEDING  SHALL  BE  SEALED  AND THE CLERK OF THE   COURT WHEREIN SUCH
CRIMINAL ACTION OR PROCEEDING WAS TERMINATED  SHALL  IMMEDIATELY  NOTIFY
THE  COMMISSIONER  OF  THE DIVISION OF CRIMINAL JUSTICE SERVICES AND THE
HEADS OF ALL APPROPRIATE POLICE DEPARTMENTS AND  OTHER  LAW  ENFORCEMENT
AGENCIES THAT THE ACTION SHALL BE SEALED AS IF IT HAS BEEN TERMINATED IN
FAVOR  OF  THE  ACCUSED AND THAT THE RECORD OF SUCH ACTION OR PROCEEDING
SHALL BE SEALED.
  6. UPON THE ENTRY OF AN ORDER TO SEAL OR THE EXPIRATION OF  THIRTY-SIX
MONTHS  FROM  THE DATE OF SENTENCE WITHOUT OPPOSITION BY THE PEOPLE, ALL
OFFICIAL RECORDS AND PAPERS, INCLUDING JUDGEMENTS AND ORDERS OF A  COURT
BUT  NOT INCLUDING PUBLISHED COURT  DECISIONS OR OPINIONS OR RECORDS AND
BRIEFS ON APPEAL, RELATING TO THE ARREST OR PROSECUTION,  INCLUDING  ALL
DUPLICATES  AND  COPIES  THEREOF, ON FILE WITH ANY COURT SHALL BE SEALED
AND NOT MADE AVAILABLE TO ANY PERSON OR PUBLIC OR PRIVATE AGENCY.
  7. UPON THE GRANTING OF A MOTION TO SEAL PURSUANT TO THIS SECTION,  OR
UPON  THE  EXPIRATION  OF  THIRTY-SIX MONTHS FROM THE DATE OF SENTENCING
WITHOUT OPPOSITION, SUCH RECORDS SHALL BE MADE AVAILABLE TO  THE  PERSON
ACCUSED  OR  TO SUCH PERSON'S DESIGNATED AGENT, AND SHALL BE MADE AVAIL-
ABLE TO:
  (A) A PROSECUTOR IN ANY PROCEEDING IN WHICH THE ACCUSED HAS MOVED  FOR
AN ORDER PURSUANT TO SECTION 170.56 OR 210.46 OF THIS CHAPTER, OR
  (B)  A  LAW  ENFORCEMENT  AGENCY  UPON EX PARTE MOTION IN ANY SUPERIOR
COURT, IF SUCH AGENCY DEMONSTRATES TO THE SATISFACTION OF THE COURT THAT
JUSTICE REQUIRES THAT SUCH RECORDS BE MADE AVAILABLE TO IT, OR
  (C) ANY STATE OR LOCAL OFFICER OR AGENCY WITH RESPONSIBILITY  FOR  THE
ISSUANCE OF LICENSES TO POSSESS GUNS, WHEN THE ACCUSED HAS MADE APPLICA-
TION FOR SUCH A LICENSE, OR
  (D)  THE  DIVISION OF PAROLE WHEN THE ACCUSED IS ON PAROLE SUPERVISION
AS A RESULT OF CONDITIONAL RELEASE OR A PAROLE RELEASE  GRANTED  BY  THE
STATE  BOARD  OF  PAROLE,  AND  THE  ARREST  WHICH IS THE SUBJECT OF THE
INQUIRY IS ONE WHICH OCCURRED WHILE THE ACCUSED WAS  UNDER  SUPERVISION,
OR
  (E)  ANY  PROSPECTIVE EMPLOYER OF A POLICE OFFICER OR PEACE OFFICER AS
THOSE TERMS ARE DEFINED IN SUBDIVISIONS THIRTY-THREE AND THIRTY-FOUR  OF
SECTION  1.20 OF THIS CHAPTER, IN RELATION TO AN APPLICATION FOR EMPLOY-
MENT AS A POLICE OFFICER OR PEACE OFFICER; PROVIDED, HOWEVER, THAT EVERY
PERSON WHO IS AN APPLICANT FOR THE POSITION OF POLICE OFFICER  OR  PEACE

S. 5958                             3

OFFICER  SHALL  BE  FURNISHED  WITH A COPY OF ALL RECORDS OBTAINED UNDER
THIS PARAGRAPH AND AFFORDED AN OPPORTUNITY TO MAKE AN EXPLANATION THERE-
TO, OR
  (F)  THE  PROBATION  DEPARTMENT  RESPONSIBLE  FOR  SUPERVISION  OF THE
ACCUSED WHEN THE ARREST WHICH IS THE SUBJECT OF THE INQUIRY IS ONE WHICH
OCCURRED WHILE THE ACCUSED WAS UNDER SUCH SUPERVISION.
  8. THE CHIEF ADMINISTRATOR OF THE COURTS,  IN  CONSULTATION  WITH  THE
COMMISSIONER  OF CRIMINAL JUSTICE SERVICES AND REPRESENTATIVES OF APPRO-
PRIATE PROSECUTORIAL AND CRIMINAL DEFENSE ORGANIZATIONS  IN  THE  STATE,
SHALL  ADOPT  FORMS  FOR THE MOTION TO SEAL, THE NOTICE OF OPPOSITION TO
SEALING, AND THE ORDER GRANTING SEALING PURSUANT TO THIS SECTION.
  S 2. Subdivision 3 of section 160.50 of the criminal procedure law  is
amended by adding a new paragraph (m) to read as follows:
  (M)  A  SEALING  ORDER  PURSUANT TO SECTION 160.57 OF THIS ARTICLE WAS
ENTERED.
  S 3. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law, and shall apply to all
qualifying criminal actions for which the sentence date  occurred  after
such effective date.

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