senate Bill S6814

Amended

Relates to the sealing and expungement of records in persons in need of supervision cases in family court

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Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
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actions

  • 12 / Mar / 2014
    • REFERRED TO CHILDREN AND FAMILIES
  • 28 / May / 2014
    • 1ST REPORT CAL.1002
  • 29 / May / 2014
    • 2ND REPORT CAL.
  • 02 / Jun / 2014
    • ADVANCED TO THIRD READING
  • 12 / Jun / 2014
    • AMENDED ON THIRD READING 6814A
  • 20 / Jun / 2014
    • COMMITTED TO RULES

Summary

Relates to the sealing and expungement of records in persons in need of supervision cases in family court.

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Bill Details

See Assembly Version of this Bill:
A9916
Versions:
S6814
S6814A
Legislative Cycle:
2013-2014
Current Committee:
Senate Rules
Law Section:
Family Court Act
Laws Affected:
Amd §§783 & 784, Fam Ct Act

Votes

5
0
5
Aye
0
Nay
1
aye with reservations
0
absent
0
excused
0
abstained
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Sponsor Memo

BILL NUMBER:S6814

TITLE OF BILL: An act to amend the family court act, in relation to
sealing and expungement of records in persons in need of supervision
cases in the family court

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of her Family
Court Advisory and Rules Committee.

When Article 3 of the Family Court Act, the juvenile delinquency
procedure statute, was enacted over three decades ago (L. 1982, c.
920), applicable provisions of the Criminal Procedure Law (CPL) deemed
essential for due process and fairness were incorporated into its
text. However, similar provisions were not introduced in the remaining
provisions of Article 7 of the Family Court Act, which from that point
onward applied only to Persons in Need of Supervision (PINS) cases.
One of the most glaring omissions is the provision regarding
confidentiality of records. Article 3, modeled after CPL 160.50, has
afforded youth who are accused of juvenile delinquency, like adults
accused of crimes, far more protections than those who are the
subjects of PINS proceedings.

Professor Merril Sobie noted this disparity in his Practice
Commentaries to Family Court Act § 751:

(Family Court Act) Article 7, unlike Article 3 (the juvenile
delinquency statute), does not provide for the automatic sealing of
records when a petition is dismissed or withdrawn (see Section 375.1).
Hence, the records remain relatively open, subject only to the
generalized, imprecise (Family Court Act) Section 166 stipulation that
"(t)he records of any proceeding in the family court shall not be open
to indiscriminate public inspection". Ironically, children who are
falsely accused of non-criminal "status offense" conduct are afforded
less protection than youths who are accused of engaging in criminal
activities.

We submit this measure to correct that imbalance. First, closely
tracking section 375.1 of the Family Court Act and CPL 160.50, the
measure would amend section 783 of the Family Court Act to provide
that court records in actions terminated favorably for the accused -
that is, cases that had been adjusted (diverted without petition),
withdrawn or dismissed -- would automatically be sealed. Notices would
be required to be sent to probation departments, designated lead
agencies for PINS diversion and, if either presentment or law
enforcement agencies have been involved, to such agencies, directing
them to seal their records as well. Youth whose cases had been
favorably terminated prior to the effective date of the statute would
be permitted to move for sealing upon twenty days' notice.

Second, in cases in which a juvenile has been adjudicated as a PINS,
the juvenile would be permitted to make a motion for sealing of the
record in the interests of justice. If granted, notices would likewise
be sent to the agencies involved in the case to seal their records. As
in section 375.3 of the Family Court Act, Family Court would retain
its inherent authority to expunge, rather than simply seal, its
records. See Matter of Dorothy D. v. New York City Probation


Department, 49 N.Y.2d 212 (1980)(juvenile delinquency); Matter of
Richard S. v. City of New York, 32 N.Y.2d 592 (1973)(PINS); Matter of
Daniel PP., 224 A.D.2d 906 (3d Dept., 1996)(PINS). As the Court of
Appeals held in Matter of Dorothy D., supra:

That the very existence of such records, despite provisions for
confidentiality, may constitute a substantial impediment to entry into
institutions of higher learning, government or private employment, the
armed services, or the professions, cannot be seriously questioned.
For this reason it would be antithetical to the purpose of the Family
Court Act to maintain records which would not benefit society and
would result in bringing unwarranted discrimination to a child's
future. (Matter of Richard S. v. City of New York, 32 N.Y.2d 592,
595-596, 347 N.Y.S.2d 54, 56, 300 N.E.2d 426, 427).

Many states, in fact, include expungement, not simply sealing, as
their mechanism for ensuring the confidentiality of juvenile records.
See, e.g., West's Colorado Revised Statutes § 19-1-306; Illinois
Compiled Statutes § 405/5-915 (juvenile delinquency) and § 405/1-9
(juvenile court records other than juvenile delinquency); Ohio Revised
Code §§ 2151.355, 2151.356, 2151.358 (juvenile delinquency and "unruly
children" records); Revised Code of Washington § 13.50.050; Delaware
Code §§ 1014-1018; North Carolina General Statutes §§ 7B3200, 3201
(juvenile delinquency and "undisciplined" children); Arizona Revised
Statutes § 13-921; Arkansas Code § 9-27-309(b)(1)(A), (b)(2); West's
California Code, Div. 2, C. 2, Art. 22, § 826(a)); Connecticut General
Statutes §§ 46b-133a,46b-146; West's Florida Statutes § 943,0582;
Minnesota Statutes § 26013.235(9)); Pennsylvania Consolidated Statutes
§ 9123); West's Code of Virginia § 16-1-306).

Finally, recognizing that PINS behavior consists of conduct that would
not be criminal if committed by adults, sections 783 and 784 of the
Family Court Act would be amended to preclude use of PINS records in
other courts. The language in section 783, permitting utilization of
such records in criminal sentencing proceedings, as well as the
reference in section 784 to criminal courts taking action regarding
police records, are vestiges of the days when juvenile delinquency and
PINS proceedings were both covered by Article 7 of the Family Court
Act and are more appropriately applied solely to juvenile delinquency
records. Indeed, these provisions have been incorporated into Article
3. See Family Court Act §§ 381.2, 381.3(2). This measure appropriately
deletes these provisions from Family Court Act Article 7.

The need to keep records of juvenile misbehavior, both criminal and
noncriminal in nature, confidential has long been a central feature of
the juvenile justice system. As former Chief Justice Rehnquist noted,
in his concurring opinion in Smith v. Daily Mail, 443 U.S. 97, 107
(1979):

It is a hallmark of our juvenile justice system in the United States
that, virtually from its inception at the end of the last century, its
proceedings have been conducted outside of the public's full gaze and
the youths brought before our juvenile courts have been shielded from
publicity. See H. Lou, Juvenile Courts in the United States 131-133
(1927); Geis, Publicity and Juvenile Court Proceedings, 30 Rocky
Mt.L.Rev. 101, 102, 116 (1958). This insistence on confidentiality is
born of a tender concern for the welfare of the child, to hide his


youthful errors and "bury them in the graveyard of the forgotten
past." In re Gault, 387 U. S. 1, 387 U. S. 24-25 (1967).

This proposal recognizes that non-criminal conduct, the gravamen of
PINS cases, no less than the criminal conduct underlying juvenile
delinquency proceedings, requires the protections that have long been
deemed essential to fulfilling the goals of the juvenile justice
system.

This measure, which would have no fiscal impact upon the State, would
take effect 90 days after it shall have become a law.

Legislative History:

None, New proposal.

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

                                  6814

                            I N  S E N A T E

                             March 12, 2014
                               ___________

Introduced by Sen. FELDER -- (at request of the Office of Court Adminis-
  tration)  --  read  twice  and ordered printed, and when printed to be
  committed to the Committee on Children and Families

AN ACT to amend the  family  court  act,  in  relation  to  sealing  and
  expungement  of records in persons in need of supervision cases in the
  family court

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

  Section  1.  Section 783 of the family court act is amended to read as
follows:
  S 783. Use of [record] RECORDS in other court; SEALING AND EXPUNGEMENT
OF RECORDS.  (A) Neither the fact that a person was  before  the  family
court  under this article for a hearing nor any confession, admission or
statement made by him OR HER to the court or to any officer  thereof  in
any stage of the proceeding is admissible as evidence against him or HER
OR his OR HER interests in any other court.  [Another court, in imposing
sentence  upon  an  adult after conviction, may receive and consider the
records and information on file with the family  court  concerning  such
person when he was a child.]
  (B)  FOR PURPOSES OF THIS SECTION, "SEALING" SHALL MEAN THAT ALL OFFI-
CIAL RECORDS AND PAPERS, INCLUDING JUDGMENTS AND ORDERS  OF  THE  COURT,
BUT  NOT  INCLUDING  PUBLIC  COURT  DECISIONS OR OPINIONS OR RECORDS AND
BRIEFS ON APPEAL, RELATING TO THE ARREST, THE PROSECUTION AND RECORDS OF
THE PROBATION SERVICE AND DESIGNATED LEAD AGENCY, INCLUDING  ALL  DUPLI-
CATES  OR  COPIES  THEREOF, ON FILE WITH THE COURT, POLICE DEPARTMENT OR
LAW ENFORCEMENT AGENCY, PROBATION SERVICE, DESIGNATED  LEAD  AGENCY  AND
PRESENTMENT  AGENCY,  IF  ANY, SHALL BE PROTECTED FROM PUBLIC INSPECTION
AND SHALL NOT BE MADE AVAILABLE TO ANY PERSON OR PUBLIC OR PRIVATE AGEN-
CY. SUCH RECORDS SHALL ONLY BE MADE AVAILABLE TO THE RESPONDENT  OR  HIS
OR HER DESIGNATED AGENT.
  (C)  AUTOMATIC  SEALING  OF  A  PROCEEDING  UNDER THIS ARTICLE THAT IS
TERMINATED IN FAVOR  OF  THE  RESPONDENT.  (I)  UPON  TERMINATION  OF  A
PROCEEDING  UNDER  THIS ARTICLE IN FAVOR OF THE RESPONDENT, THE CLERK OF
THE COURT SHALL IMMEDIATELY NOTIFY  THE  DIRECTORS  OF  THE  APPROPRIATE

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD13718-01-4

S. 6814                             2

PROBATION  DEPARTMENT,  DESIGNATED LEAD AGENCY PURSUANT TO SECTION SEVEN
HUNDRED THIRTY-FIVE OF THIS ARTICLE AND, IF A PRESENTMENT AGENCY REPRES-
ENTED THE PETITIONER IN THE PROCEEDING, SUCH AGENCY, THAT THE PROCEEDING
HAS  TERMINATED  IN FAVOR OF THE RESPONDENT AND THAT THE RECORDS OF SUCH
ACTION OR PROCEEDING IN THEIR POSSESSION, IF ANY, SHALL  BE  SEALED.  IF
THE  RESPONDENT  HAD  BEEN  THE  SUBJECT  OF  A  WARRANT OR AN ARREST IN
CONNECTION WITH THE PROCEEDING, THE NOTICE SHALL ALSO  BE  SENT  TO  THE
APPROPRIATE POLICE DEPARTMENT OR LAW ENFORCEMENT AGENCY. UPON RECEIPT OF
SUCH NOTIFICATION, THE RECORDS SHALL BE SEALED IN ACCORDANCE WITH SUBDI-
VISION (B) OF THIS SECTION.
  (II) FOR THE PURPOSES OF THIS SECTION, A PROCEEDING UNDER THIS ARTICLE
SHALL  BE  CONSIDERED  TERMINATED  IN  FAVOR  OF  A RESPONDENT WHERE THE
PROCEEDING HAS BEEN:
  (A) ADJUSTED PRIOR TO THE FILING OF A PETITION PURSUANT TO SUBDIVISION
(G) OF SECTION SEVEN HUNDRED THIRTY-FIVE OF THIS ARTICLE  OR  SUBSEQUENT
TO THE FILING OF A PETITION PURSUANT TO SUBDIVISION (B) OF SECTION SEVEN
HUNDRED FORTY-TWO OF THIS ARTICLE;
  (B) WITHDRAWN OR DISMISSED FOR FAILURE TO PROSECUTE;
  (C)  DISMISSED  FOLLOWING AN ADJOURNMENT IN CONTEMPLATION OF DISMISSAL
PURSUANT TO SUBDIVISION (A) OF SECTION SEVEN HUNDRED FORTY-NINE OF  THIS
ARTICLE; OR
  (D)  DISMISSED  PURSUANT  TO  SECTION SEVEN HUNDRED FIFTY-ONE OR SEVEN
HUNDRED SIXTY-TWO OF THIS ARTICLE.
  (III) IF, WITH RESPECT TO A RESPONDENT WHO HAD BEEN THE SUBJECT  OF  A
WARRANT  OR  AN ARREST IN CONNECTION WITH THE PROCEEDING, THE DESIGNATED
LEAD AGENCY ADJUSTS A CASE EITHER PRIOR OR SUBSEQUENT TO THE FILING OF A
PETITION UNDER THIS ARTICLE, THE DESIGNATED LEAD AGENCY  SHALL  SERVE  A
CERTIFICATION  OF SUCH ADJUSTMENT UPON THE APPROPRIATE PROBATION SERVICE
AND POLICE DEPARTMENT OR LAW ENFORCEMENT AGENCY. UPON  RECEIPT  OF  SUCH
CERTIFICATION,  THE  RECORDS SHALL BE SEALED IN ACCORDANCE WITH SUBDIVI-
SION (B) OF THIS SECTION IN THE SAME MANNER AS  IS  REQUIRED  THEREUNDER
WITH RESPECT TO AN ORDER OF A COURT.
  (IV) IF, FOLLOWING THE REFERRAL OF A PROCEEDING UNDER THIS ARTICLE FOR
THE  FILING  OF  A  PETITION,  THE  PETITIONER  OR,  IF REPRESENTED BY A
PRESENTMENT AGENCY, SUCH AGENCY, ELECTS NOT TO  FILE  A  PETITION  UNDER
THIS  ARTICLE, THE PETITIONER OR, IF APPLICABLE, THE PRESENTMENT AGENCY,
SHALL SERVE A CERTIFICATION OF SUCH DETERMINATION UPON  THE  APPROPRIATE
PROBATION SERVICE AND DESIGNATED LEAD AGENCY. IF THE RESPONDENT HAD BEEN
THE SUBJECT OF A WARRANT OR AN ARREST IN CONNECTION WITH THE PROCEEDING,
THE  CERTIFICATION  SHALL ALSO BE SENT TO THE APPROPRIATE POLICE DEPART-
MENT OR LAW ENFORCEMENT AGENCY. UPON RECEIPT OF SUCH CERTIFICATION,  THE
RECORDS  SHALL  BE  SEALED  IN  ACCORDANCE  WITH SUBDIVISION (B) OF THIS
SECTION IN THE SAME MANNER AS IS REQUIRED THEREUNDER WITH RESPECT TO  AN
ORDER OF A COURT.
  (V)  A  RESPONDENT IN WHOSE FAVOR A PROCEEDING WAS TERMINATED PRIOR TO
THE EFFECTIVE DATE OF THIS PARAGRAPH MAY,  UPON  MOTION,  APPLY  TO  THE
COURT, UPON NOT LESS THAN TWENTY DAYS NOTICE TO THE PETITIONER OR (WHERE
THE  PETITIONER IS REPRESENTED BY A PRESENTMENT AGENCY) SUCH AGENCY, FOR
AN ORDER GRANTING THE RELIEF SET FORTH IN PARAGRAPH (I) OF THIS SUBDIVI-
SION. WHERE A PROCEEDING UNDER THIS ARTICLE WAS TERMINATED IN  FAVOR  OF
THE RESPONDENT IN ACCORDANCE WITH PARAGRAPH (III) OR (IV) OF THIS SUBDI-
VISION PRIOR TO THE EFFECTIVE DATE OF THIS PARAGRAPH, THE RESPONDENT MAY
APPLY  TO  THE DESIGNATED LEAD AGENCY, PETITIONER OR PRESENTMENT AGENCY,
AS APPLICABLE, FOR A  CERTIFICATION  AS  DESCRIBED  IN  SUCH  PARAGRAPHS
GRANTING  THE  RELIEF  SET FORTH THEREIN AND SUCH CERTIFICATION SHALL BE
GRANTED.

S. 6814                             3

  (D) MOTION TO SEAL AFTER AN ADJUDICATION AND DISPOSITION.  (I)  IF  AN
ACTION  HAS RESULTED IN AN ADJUDICATION AND DISPOSITION UNDER THIS ARTI-
CLE, THE COURT MAY, IN THE INTEREST OF JUSTICE AND UPON  MOTION  OF  THE
RESPONDENT, ORDER THE SEALING OF THE RECORDS AND PROCEEDINGS.
  (II)  SUCH  MOTION  MUST  BE  IN  WRITING AND MAY BE FILED AT ANY TIME
SUBSEQUENT TO THE ENTERING OF THE DISPOSITION.  NOTICE  OF  SUCH  MOTION
SHALL BE SERVED NOT LESS THAN EIGHT DAYS PRIOR TO THE RETURN DATE OF THE
MOTION  UPON  THE  PETITIONER OR, IF THE PETITIONER WAS REPRESENTED BY A
PRESENTMENT AGENCY, SUCH AGENCY. ANSWERING AFFIDAVITS SHALL BE SERVED AT
LEAST TWO DAYS BEFORE THE RETURN DATE.
  (III) THE COURT SHALL STATE, ON THE RECORD, ITS REASONS  FOR  GRANTING
OR  DENYING  THE  MOTION.  IF  THE  COURT  GRANTS  THE MOTION, ALL COURT
RECORDS, AS WELL AS ALL RECORDS IN THE POSSESSION OF THE DESIGNATED LEAD
AGENCY, THE PROBATION SERVICE, THE PRESENTMENT AGENCY, IF ANY,  AND,  IF
THE  RESPONDENT  HAD  BEEN  THE  SUBJECT  OF  A  WARRANT OR AN ARREST IN
CONNECTION WITH THE PROCEEDING, THE POLICE OR  LAW  ENFORCEMENT  AGENCY,
SHALL BE SEALED IN ACCORDANCE WITH SUBDIVISION (B) OF THIS SECTION.
  (E)  EXPUNGEMENT  OF  COURT RECORDS. NOTHING CONTAINED IN THIS ARTICLE
SHALL PRECLUDE THE COURT'S USE  OF  ITS  INHERENT  POWER  TO  ORDER  THE
EXPUNGEMENT OF COURT RECORDS.
  S  2.  Section  784  of  the  family  court  act is amended to read as
follows:
  S 784. Use of police records.  All  police  records  relating  to  the
arrest and disposition of any person under this article shall be kept in
files  separate  and apart from the arrests of adults and shall be with-
held  from  public  inspection,  but  such  records  shall  be  open  to
inspection upon good cause shown by the parent, guardian, next friend or
attorney  of that person upon the written order of a judge of the family
court in the county in which the order was made [or, if  the  person  is
subsequently  convicted  of a crime, of a judge of the court in which he
was convicted].
  S 3. This act shall take effect on the ninetieth day  after  it  shall
have become a law.

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