NY State Senate Bill 2017-S4027

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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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 03, 2018	referred to codes
Feb 02, 2017	referred to codes

2017-S4027 (ACTIVE) - Details

Current Committee:: Senate Codes
Law Section:: Criminal Procedure Law
Laws Affected:: Add §160.65, CP L; amd §296, Exec L
Versions Introduced in Other Legislative Sessions:: 2011-2012: S5843
2013-2014: S3384
2015-2016: S2344

2017-S4027 (ACTIVE) - Summary

Provides for the application for sealing a record of conviction; establishes waiting periods for various convictions where such application may be made; authorizes certain agencies to maintain records; provides such records may be unsealed at the time of an arrest

2017-S4027 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S4027

 TITLE OF BILL :  An act to amend the criminal procedure law and the
executive law, in relation to applications for sealing a record of
conviction

 PURPOSE OR GENERAL IDEA OF BILL :

This bill would establish a procedure for an individual with a
criminal record, who has completed his or her sentence and has been
crime-free for a specified waiting period, to apply to the sentencing
court, on notice to the prosecutor, for an order sealing the record of
conviction. The bill's purpose is to help current law abiding
individuals keep, regain or gain employment by strengthening
mechanisms intended to prevent employment discrimination against
ex-offenders.

 SUMMARY OF SPECIFIC PROVISIONS :

Section one of the bill adds a new section 160.65 to the Criminal
Procedure Law ("CPL"), setting out the criteria and procedures for
sealing a record of conviction.

Section two makes conforming changes to Executive Law section 296, to
effectuate the bill's nondiscrimination purposes. Section three is the
effective date.

 NEW CPL 160.65'S PROVISIONS INCLUDE THE FOLLOWING :

(Subdivision 1) The application must be sworn to and accompanied by a
95-dollar application fee), An applicant must have served the full
sentence, including any supervision component, sex offender
registration requirement or order of protection, and must have
completed a waiting period which varies depending on the
classification and number of prior convictions (subdivision 2; waiting
periods set out in paragraphs a to h)

(Subdivision 3) The application is to be made to the sentencing court,
and applications may be referred to magistrates, who may grant
applications for misdemeanors and non-criminal offenses, and make
recommendations to the judge regarding felonies.

(Subdivision 4) An application must be sworn to under penalties of
perjury and must include specific information about all of the
applicant/petitioner's prior convictions, including any convictions in
other states or federal court,

(Subdivision 5) The application must be served on the original
prosecuting agency on 21 days' notice, with an opportunity for the
prosecutor to answer 7 days prior to the return date.

(Subdivision 6) For violations (non-criminal offenses), misdemeanors
and nonviolent felony convictions, there is a rebuttable presumption
that the application will be granted unless sealing will harm public
safety or would not serve the interests of justice. For violent felony
convictions, there is a rebuttable presumption that the application
will not be granted, unless the applicant establishes multiple
factors, including complete rehabilitation, that the crime was an
aberration and is not likely to recur.

(Subdivision 7) The court may order a report on the applicant's
background and circumstances.

(Subdivision 8), may conduct a hearing as to any issue of fact or law.


(Subdivision 9), and must issue a written decision stating reasons for
the decision unless the application is granted without objection.

(Subdivision 18) Either party may appeal.

(Subdivision 10) of new CPL 160.55 governs a sealing order's effective
date.

(Subdivision 11) sets out the actions to be taken to seal records
pursuant to such an order, and also provides for access to sealed
records by law enforcement and prosecution agencies and for the
conviction to spring back upon a new arrest.

(Subdivision 12) explicitly states that nothing contained in new CPL
160.65 changes the sentencing provisions of the Penal Law.

(Subdivision 13) sets out sanctions and remedies for unauthorized
publication of information regarding sealed records.

(Subdivision 14) deals with applications to unseal a previously sealed
record.

(Subdivisions 15 and 16) relate to employment; private employers may
search government records, but may not ask job applicants if they have
been arrested or convicted.

(Subdivision 17) limits re-disclosure by purchasers of criminal
records or databases of such records and requires sellers of such
records databases to develop systems for validating the accuracy of
records and to give written notice to purchasers about the limits on
re-disclosure.

 JUSTIFICATION :

New York's public policy of assisting ex-offenders by prohibiting
employment discrimination based on criminal history (see Correction
Law Article 23-A) is compromised by increasingly easy access to
various databases and" other information available over the internet
that provide criminal history information about individuals,
especially when that information may be incomplete or outdated, and
even when it is accurate, may reflect a conviction that occurred long
ago and that may hinder employment opportunities for someone who has
been a law abiding citizen for many years. Current law does not
provide a mechanism for addressing the employment discrimination
problems created by technological advances. This bill provides such a
mechanism.

Many individuals who made mistakes in the past and have led law
abiding lives since their convictions have either lost jobs due to the
economic downturn, have lost jobs because employers began checking
criminal records, or afraid to apply for new and better jobs because
they fear they will be asked about criminal records. Job applicants
are routinely asked about criminal records and eliminated from
consideration for crimes that occurred years, or even decades, ago.

Twenty, or even ten, years ago it was relatively difficult for
employers to get criminal record information for job applicants as a
routine matter. Over the last ten years, the free flow of information
over the Internet, live data feeds, sales of databases, etc. have made
it easy for employers to obtain criminal record information.  Even
applicants for low paying jobs are subject to criminal records
questions on applications and/or criminal records checks. It is
critical that the Legislature act now to establish a mechanism for
sealing records before so much information is so available that it
becomes impossible to seal records in a meaningful way.

 PRIOR LEGISLATIVE HISTORY :

2011-12: S.5843/A.6664 (O'Donnell) - Referred to Codes
2013-14: S.3384 - Referred to Codes
2015-16: S.2344 - Referred to Codes

 FISCAL IMPLICATIONS :

To be determined, but note that any workload driven costs should be
offset by the $95 application fee, and it is possible that net revenue
could be generated by this bill.

 EFFECTIVE DATE :
This act shall take effect 60 days after having become a law.

2017-S4027 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   4027
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                             February 2, 2017
                                ___________
 
 Introduced  by  Sen.  BAILEY -- read twice and ordered printed, and when
   printed to be committed to the Committee on Codes
 
 AN ACT to amend the criminal procedure law and  the  executive  law,  in
   relation to applications for sealing a record of conviction
 
   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 160.65 to read as follows:
 § 160.65 SEALING RECORD OF CONVICTION; APPLICATION FOR.
   1.  A  PERSON  IS  ELIGIBLE  TO  APPLY TO SEAL A RECORD OF CONVICTION,
 SUBJECT TO THE PROVISIONS CONTAINED IN THIS SECTION, BY APPLICATION ON A
 FORM SPECIFICALLY DESIGNATED, SWORN TO  UNDER  PENALTY  OF  PERJURY  AND
 ACCOMPANIED BY A FEE OF NINETY-FIVE DOLLARS.
   2.  AN  APPLICANT  MUST  BE  DULY TERMINATED AND DISCHARGED FROM EVERY
 ASPECT OF THE  SENTENCE,  INCLUDING  INCARCERATION,  PROBATION,  PAROLE,
 CONDITIONAL  RELEASE,  POST-RELEASE  SUPERVISION, CONDITIONAL DISCHARGE,
 SEX OFFENDER REGISTRATION AND/OR ANY ORDER OF PROTECTION ON THIS OR  ANY
 OTHER  MATTER  AGAINST  THE  APPLICANT  MUST HAVE EXPIRED. THE FOLLOWING
 WAITING PERIODS APPLY TO APPLICATIONS UNDER THIS SECTION,  HOWEVER,  FOR
 GOOD  CAUSE SHOWN, THE COURT MAY SHORTEN A WAITING PERIOD. ATTENDANCE AT
 A DIVERSION PROGRAM WHICH DELAYED THE IMPOSITION  OF  THE  SENTENCE  MAY
 CONSTITUTE GOOD CAUSE, IN THE COURT'S DISCRETION.
   (A)  FOR  A PERSON WHO HAS BEEN CONVICTED OF ONE NON-CRIMINAL OFFENSE,
 THE WAITING PERIOD SHALL BE SIX MONTHS FROM THE DATE  OF  CONVICTION  OF
 SUCH OFFENSE.
   (B)  FOR A PERSON WHO HAS BEEN CONVICTED OF MORE THAN ONE NON-CRIMINAL
 OFFENSE ARISING FROM SEPARATE INCIDENCES, THE WAITING  PERIOD  SHALL  BE
 ONE YEAR FROM THE DATE OF CONVICTION OF THE LAST SUCH OFFENSE.
   (C)  FOR A PERSON WHO HAS BEEN CONVICTED OF A MISDEMEANOR, THE WAITING
 PERIOD SHALL BE ONE YEAR FROM THE DATE OF CONVICTION OF  SUCH  MISDEMEA-
 NOR.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD08706-01-7

 S. 4027                             2
 
   (D)  FOR  A PERSON WHO HAS BEEN CONVICTED OF MORE THAN ONE MISDEMEANOR
 ARISING FROM SEPARATE INCIDENCES, THE  WAITING  PERIOD  SHALL  BE  THREE
 YEARS FROM THE DATE OF CONVICTION OF LAST SUCH MISDEMEANOR.
   (E) FOR A PERSON WHO HAS BEEN CONVICTED OF ONE NON-VIOLENT FELONY, THE
 WAITING  PERIOD  SHALL BE FIVE YEARS FROM THE DATE OF CONVICTION OF SUCH
 NON-VIOLENT FELONY.
   (F) FOR A PERSON WHO HAS BEEN CONVICTED OF MORE THAN  ONE  NON-VIOLENT
 FELONY ARISING FROM SEPARATE INCIDENCES, THE WAITING PERIOD SHALL BE TEN
 YEARS FROM THE DATE OF CONVICTION OF THE LAST NON-VIOLENT FELONY.
   (G) FOR A PERSON WHO HAS BEEN CONVICTED OF A VIOLENT FELONY, THE WAIT-
 ING  PERIOD  SHALL  BE TEN YEARS FROM THE DATE OF THE CONVICTION OF SUCH
 VIOLENT FELONY.
   (H) FOR A PERSON CONVICTED OF MORE THAN  ONE  VIOLENT  FELONY  ARISING
 FROM  SEPARATE INCIDENCES, THE WAITING PERIOD SHALL BE TWENTY YEARS FROM
 THE DATE OF CONVICTION OF THE LAST VIOLENT FELONY.
   3. AN APPLICATION FOR SEALING A RECORD OF CONVICTION SHALL BE MADE  TO
 THE  JUDGE  WHO  ORIGINALLY  SENTENCED  THE APPLICANT. IN THE EVENT SUCH
 JUDGE IS UNAVAILABLE, THE APPLICATION SHALL BE MADE TO A  SITTING  JUDGE
 IN  THE  COURT IN WHICH THE CONVICTION WAS ORDERED, AS DESIGNATED BY THE
 SUPERVISING OR ADMINISTRATIVE JUDGE OF THAT COURT. THE JUDGE  MAY  REFER
 AN  APPLICATION  UNDER  THIS SECTION TO A MAGISTRATE, WHO SHALL HAVE THE
 AUTHORITY TO GRANT SUCH AN APPLICATION IN  THE  CASE  OF  A  MISDEMEANOR
 CONVICTION  OR  A CONVICTION TO A NON-CRIMINAL OFFENSE. IN THE EVENT THE
 MAGISTRATE RECOMMENDS DENIAL OF AN APPLICATION RELATING TO A MISDEMEANOR
 OR NON-CRIMINAL OFFENSE, SUCH RECOMMENDATION SHALL BE MADE TO A JUDGE AS
 DESIGNATED IN THIS SECTION, WHO SHALL, UPON  REVIEWING  THE  RECORD  AND
 HEARING  THE APPLICANT, RULE ON THE APPLICATION. IN THE CASE OF A FELONY
 MATTER, THE MAGISTRATE MUST MAKE A RECOMMENDATION TO THE JUDGE REGARDING
 SUCH APPLICATION, STATING IN WRITING THE REASONS FOR THE RECOMMENDATION.
 THE JUDGE SHALL REVIEW THE RECORD AND SUCH RECOMMENDATION AND AFFORD THE
 APPLICANT AN OPPORTUNITY TO BE HEARD PRIOR TO RULING ON THE APPLICATION.
   4. AN APPLICATION PURSUANT TO THIS SECTION SHALL  BE  SWORN  TO  UNDER
 PENALTY OF PERJURY AND SHALL INCLUDE:
   (A)  A LIST OF EACH OF THE PETITIONER'S CONVICTIONS IN NEW YORK STATE,
 ANY CONVICTIONS IN ANY OTHER STATE OR IN FEDERAL COURT, THE SENTENCE FOR
 EACH  SUCH  CONVICTION  AND  THE  DATE  OF  THE  SENTENCE.  NON-CRIMINAL
 CONVICTIONS OUTSIDE NEW YORK STATE NEED NOT BE INCLUDED.
   (B)  A  STATEMENT AS TO THE TERMINATION OF EACH ASPECT OF THE SENTENCE
 FOR EACH OF THE ABOVE-LISTED CONVICTIONS, INCLUDE THE  DATES  OF  TERMI-
 NATION  FROM  PROBATION, PAROLE OR OTHER SUPERVISORY SENTENCES, A STATE-
 MENT AS TO THE EXISTENCE OF ORDER OR ORDERS OF PROTECTION  AND  THE  END
 DATE  OF  SUCH,  AND A STATEMENT AS TO THE COMPLETION OF ANY CONDITIONAL
 SENTENCES OR ANY OTHER CONDITIONS OF SENTENCE IMPOSED BY THE COURT OR BY
 LAW, ALTHOUGH THIS SHALL NOT BE CONSTRUED TO REQUIRE A  PERSON  TO  HAVE
 RESTORED  DRIVING  OR OTHER PRIVILEGES THAT HAVE BEEN LOST, SUSPENDED OR
 REVOKED DUE TO THE CONVICTION.
   (C) A DESCRIPTION OF THE NATURE AND CIRCUMSTANCES OF EACH CRIME LISTED
 IN PARAGRAPH (A) OF THIS SUBDIVISION.
   (D) A DESCRIPTION OF THE  NATURE OF THE PETITIONER'S PERSONAL  CIRCUM-
 STANCES  SINCE THE CONVICTION, WHICH SHALL ESTABLISH THAT THE PETITIONER
 IS ENTITLED TO THE RELIEF PROVIDED IN THIS SECTION.
   5. THE APPLICATION FOR SEALING A RECORD OF CONVICTION SHALL BE  SERVED
 UPON  THE  AGENCY THAT ORIGINALLY PROSECUTED THE CASE ON TWENTY-ONE DAYS
 NOTICE.  THE PROSECUTING AGENCY MAY FILE AN ANSWER  TO  THE  APPLICATION
 SEVEN  DAYS  PRIOR TO THE RETURN DATE OF THE MOTION. THE COURT MAY GRANT
 AN APPLICATION ON SUBMISSIONS IF THE PROSECUTING AGENCY DOES NOT FILE AN

 S. 4027                             3
 
 OPPOSITION. IF THERE IS OBJECTION, THE COURT MUST REVIEW THE  ISSUES  OF
 FACT AND LAW AND DETERMINE THE MERITS OF THE APPLICATION.
   6.  IN  THE  CASE OF NON-CRIMINAL CONVICTIONS, MISDEMEANOR CONVICTIONS
 AND NON-VIOLENT FELONY CONVICTIONS, THE COURT SHALL GRANT  THE  APPLICA-
 TION  UNLESS  SEALING  THE  RECORDS WILL HARM PUBLIC SAFETY OR WOULD NOT
 SERVE THE INTERESTS  OF  JUSTICE.  IN  THE  CASE  OF  A  VIOLENT  FELONY
 CONVICTION  OR A CONVICTION FOR A SEX OFFENSE, THE COURT SHALL NOT GRANT
 THE APPLICATION UNLESS THE APPLICANT HAS ESTABLISHED THAT HE OR SHE  HAS
 BEEN  ENTIRELY  REHABILITATED,  THAT  THE CRIME WAS AN ABERRATION IN THE
 APPLICANT'S LIFE, THAT IT IS NOT LIKELY TO RECUR  AND  THAT  IT  IS  NOT
 AGAINST  PUBLIC POLICY AND THE INTERESTS OF JUSTICE TO GRANT SUCH APPLI-
 CATION.
   7. IF THE COURT DEEMS IT NECESSARY, THE COURT MAY ORDER A REPORT AS TO
 THE  APPLICANT'S  BACKGROUND  AND  CIRCUMSTANCES  FROM  AN   INDEPENDENT
 CONSULTANT,  EXPERT  OR  AGENCY DEEMED QUALIFIED BY THE COURT TO PREPARE
 SUCH A REPORT.
   8. UPON THE REQUEST OF EITHER PARTY OR SUA  SPONTE,  THE  COURT  SHALL
 CONDUCT  A  HEARING  AS  TO  ANY  ISSUE OF FACT OR LAW OR IN THE COURT'S
 DISCRETION, MAY HEAR TESTIMONY OR ACCEPT  WRITTEN  SUBMISSIONS  RELATING
 THE  MERITS  OF  THE APPLICATION OR ANY MATTER DEEMED APPROPRIATE BY THE
 COURT IN FURTHERANCE OF DETERMINING THE MOTION. IN ANY SUCH HEARING, THE
 COURT SHALL NOT BE BOUND BY THE RULES OF EVIDENCE AND MAY ADMIT  HEARSAY
 TESTIMONY  WHICH  THE  COURT BELIEVES WILL SHED LIGHT ON THE APPLICANT'S
 CHARACTER AND ELIGIBILITY TO RECEIVE RELIEF UNDER THIS SECTION. HOWEVER,
 A DECISION TO GRANT OR DENY AN APPLICATION MAY NOT BE  BASED  SOLELY  ON
 HEARSAY OR OTHERWISE TRADITIONALLY INADMISSIBLE EVIDENCE.
   9.  A  DECISION  GRANTING OR DENYING AN APPLICATION UNDER THIS SECTION
 SHALL BE IN WRITING AND SHALL STATE THE REASONS FOR THE COURT'S  RULING,
 UNLESS  THE  COURT  GRANTS  THE APPLICATION WITHOUT OBJECTION OR WRITTEN
 RESPONSE BY THE PROSECUTOR, IN WHICH CASE THE COURT MAY ISSUE  AN  ORDER
 WITHOUT A WRITTEN DECISION.
   10.  THE COURT'S SEALING ORDER SHALL BE EFFECTIVE ON THE THIRTIETH DAY
 AFTER ISSUANCE OF THE ORDER, EXCEPT THAT A COURT MAY SHORTEN THAT PERIOD
 UPON GOOD CAUSE SHOWN.
   11. UPON THE EFFECTIVE DATE OF A  SEALING  ORDER  BY  THE  COURT,  ALL
 STATE,  COUNTY  AND  LOCAL  GOVERNMENT  AND LAW ENFORCEMENT AGENCIES AND
 THEIR AGENTS AND CONTRACTORS MUST SEAL ANY RECORD RELATING TO THE SEALED
 CONVICTION, INCLUDING ANY AND ALL RECORDS RELATING TO THE ARREST  AND/OR
 DETENTION  OF  THE  APPLICANT.  EACH  AGENCY SHALL DESIGNATE A METHOD OF
 SAFEKEEPING DOCUMENTS AND COMPUTER RECORDS IN A MANNER  WHICH  WILL  NOT
 INDICATE  THAT  THERE  EVER  WAS A RECORD AS TO THE ARREST, DETENTION OR
 CONVICTION OF THE INDIVIDUAL. RECORDS SHALL BE UNSEALED ONLY PURSUANT TO
 COURT ORDER EXCEPT THAT THE FOLLOWING AGENCIES MAY MAINTAIN  RECORDS  IN
 THE FOLLOWING MANNER:
   (A)  THE  DEPARTMENT  OF  CRIMINAL  JUSTICE  SERVICES SHALL MAINTAIN A
 SEALED RECORD IN ITS DATABASE IN A MANNER THAT WILL NOT BE ACCESSIBLE TO
 ANYONE OTHER THAN LAW ENFORCEMENT AGENTS OR PROSECUTION AGENCIES IN  THE
 COURSE OF A CRIMINAL INVESTIGATION OR PROSECUTION, OR UPON A COURT ORDER
 OR  COURT-ORDERED  SUBPOENA  ORDERING RELEASE OF THE INFORMATION. IN THE
 EVENT THE APPLICANT  IS  ARRESTED  SUBSEQUENT  TO  THE  SEALING  OF  THE
 RECORDS,  THE  UNSEALED  RECORD  SHALL  BE INCLUDED IN THE DEPARTMENT OF
 CRIMINAL JUSTICE SERVICES "NYSID" SHEET THAT IS PRINTED OUT BASED ON THE
 APPLICANT'S FINGERPRINTS. A COURT, UPON DETERMINING IT IS IN THE  INTER-
 ESTS  OF  JUSTICE  TO  UNSEAL  SUCH A RECORD, SHALL ORDER ITS UNSEALING,
 WHICH SHALL ALLOW THE PROSECUTOR AND THE COURT TO UNSEAL THE RECORDS  OF

 S. 4027                             4

 THEIR AGENCY PERTAINING TO THAT ARREST. ANY SUCH UNSEALED FILES SHALL BE
 MADE AVAILABLE TO THE DEFENDANT AND HIS OR HER ATTORNEY.
   (B)  THE  DEPARTMENT  OF CORRECTIONS AND COMMUNITY SUPERVISION AND ALL
 LOCAL JAIL OR PRISON AGENCIES SHALL MAINTAIN SEALED RECORDS IN A  MANNER
 THAT  PRECLUDES  THE  PUBLIC  FROM OBTAINING INFORMATION RELATING TO THE
 ARREST, DETENTION OR CONVICTION OF THE INDIVIDUAL WHOSE RECORD HAS  BEEN
 SEALED, INCLUDING BUT NOT LIMITED TO REMOVAL FROM ALL PUBLICLY AVAILABLE
 DATABASES  ON  THE  INTERNET AND OTHERWISE. HOWEVER, SUCH AGENCIES SHALL
 MAINTAIN A RECORD OF INDIVIDUALS WHO HAVE BEEN IN CUSTODY WHICH SHALL BE
 KEPT BY A CUSTODIAN OF THOSE RECORDS WITHIN THE AGENCY. IN THE EVENT THE
 INMATE SHALL BE READMITTED TO THE FACILITY, THE CUSTODIAN IS  AUTHORIZED
 TO  RE-OPEN  SUCH  FILES,  TO  BE  USED SOLELY FOR THE AGENCY'S OFFICIAL
 PURPOSES.
   12. NOTHING IN THIS SECTION SHALL CHANGE THE SENTENCING PROVISIONS  IN
 THE  PENAL  LAW.  A  SEALED RECORD, UNSEALED AT THE TIME OF A RE-ARREST,
 SHALL CONTINUE TO QUALIFY AS A CONVICTION FOR  SENTENCING  PURPOSES  AND
 MAY  BE USED TO ESTABLISH AN ELEMENT OF A CRIME AS PROVIDED IN THE PENAL
 LAW.
   13. IT SHALL BE A CLASS A MISDEMEANOR TO  PUBLISH  INFORMATION,  OTHER
 THAN  AS  DELINEATED  IN PARAGRAPHS (A) AND (B) OF SUBDIVISION ELEVEN OF
 THIS SECTION, REGARDING THE ARREST, DETENTION OR CONVICTION OF AN  INDI-
 VIDUAL  WHOSE  RECORD HAS BEEN SEALED. A PERSON AGGRIEVED BY A VIOLATION
 OF THIS SECTION SHALL HAVE THE RIGHT TO INSTITUTE  A  CIVIL  PROCEEDING,
 REGARDLESS  OF  WHETHER  A CRIMINAL ACTION WAS COMMENCED. A PLAINTIFF IS
 ENTITLED TO FIVE HUNDRED DOLLARS FOR  EACH  OCCURRENCE  ALONG  WITH  THE
 ACTUAL  DAMAGES  CAUSED  BY  THE  DISCLOSURE  OF SUCH SEALED RECORD. LAW
 ENFORCEMENT, PROSECUTION OFFICIALS AND EMPLOYEES OF THE OFFICE OF  COURT
 ADMINISTRATION  SHALL HAVE A DEFENSE TO A CRIMINAL OR CIVIL ACTION UNDER
 THIS SECTION IF THEY BELIEVED, IN GOOD FAITH, THAT THEY  WERE  PERMITTED
 OR  REQUIRED  BY  LAW TO DISCLOSE A SEALED CONVICTION. THERE SHALL BE NO
 PROSECUTORIAL OR LAW ENFORCEMENT IMMUNITY UNDER  THIS  SECTION  FOR  ANY
 GOVERNMENT  OFFICIAL  WHO KNOWINGLY AND INTENTIONALLY PUBLISHES A SEALED
 RECORD WHICH SUCH OFFICIAL KNOWS TO HAVE BEEN SEALED UNDER THIS SECTION.
 IF A CONVICTION IS UNSEALED PURSUANT TO A NEW ARREST, THE PROVISIONS  OF
 THIS SUBDIVISION SHALL NOT APPLY.
   14.  AN APPLICATION TO UNSEAL A RECORD, WHICH HAS BEEN SEALED PURSUANT
 TO THIS SECTION, MAY BE GRANTED BY THE COURT IF IT IS  DETERMINED  THAT,
 IN  THE  INTERESTS  OF JUSTICE, THE INFORMATION REGARDING THE UNDERLYING
 CONVICTION SHOULD BE DISCLOSED. THERE SHALL BE A PRESUMPTION IN FAVOR OF
 UNSEALING A RECORD IF THE PERSON WHO IS SUBJECT TO THE SEALED RECORD  IS
 A  WITNESS IN A CRIMINAL CASE. AN APPLICATION UNDER THIS SUBDIVISION MAY
 BE MADE EITHER TO THE COURT THAT ORIGINALLY SENTENCED THE  DEFENDANT  IN
 THE  SEALED CASE OR MAY BE MADE TO THE COURT WHICH HAS JURISDICTION OVER
 ANY CASE IN NEW YORK IN WHICH THE SEALED RECORD MAY BE RELEVANT, INCLUD-
 ING THE CASE WHERE THE DEFENDANT ON THE SEALED CASE IS A  WITNESS  IN  A
 CIVIL, CRIMINAL OR OTHER COURT PROCEEDING.
   15. A SEALED CONVICTION SHALL NOT OPERATE AS A DISQUALIFICATION OF ANY
 PERSON  TO  PURSUE OR ENGAGE IN ANY LAWFUL ACTIVITY, OCCUPATION, PROFES-
 SION OR CALLING UNLESS SO ORDERED BY THE  COURT.  EXCEPT  WHERE  SPECIF-
 ICALLY  REQUIRED OR PERMITTED BY STATUTE OR UPON SPECIFIED AUTHORIZATION
 OF A SUPERIOR COURT, NO SUCH PERSON SHALL BE REQUIRED TO DIVULGE  INFOR-
 MATION  PERTAINING  TO THE SEALED RECORD. SUCH PERSON SHALL BE PERMITTED
 TO RESPOND IN THE NEGATIVE TO THE QUESTION "HAVE YOU EVER BEEN CONVICTED
 OF A CRIME OR VIOLATION?" OR TO ANY QUESTION WITH THE  SAME  SUBSTANTIVE
 CONTENT.

 S. 4027                             5
 
   16.  NON-GOVERNMENTAL  EMPLOYERS  ARE HEREINAFTER NOT PERMITTED TO ASK
 PROSPECTIVE APPLICANTS IF THEY HAVE BEEN ARRESTED OR IF THEY  HAVE  BEEN
 CONVICTED  OF  A  CRIME OR VIOLATION. PRIVATE CITIZENS AND EMPLOYERS ARE
 AUTHORIZED  TO  SEARCH  OFFICIAL   GOVERNMENT   RECORDS   FOR   CRIMINAL
 CONVICTIONS IN A MANNER CONSISTENT WITH THE LAW. IN THE EVENT AN EMPLOY-
 ER  SEARCHES THE CRIMINAL RECORD OF AN INDIVIDUAL, SUCH INDIVIDUAL SHALL
 BE PUT ON NOTICE, ORALLY OR IN WRITING, THAT SUCH SEARCH WILL OCCUR.
   17. ANY BUSINESS, AGENCY OR INDIVIDUAL WHO PURCHASES INDIVIDUAL CRIMI-
 NAL RECORDS OR DATABASES OF CRIMINAL  RECORDS  SHALL  NOT  DISCLOSE  ANY
 INFORMATION  AS TO A RECORD WHICH HAS BEEN SEALED SUBSEQUENT TO THE TIME
 THE DATA WAS OBTAINED. ANY AGENCY PROVIDING DATA TO  THE  PUBLIC  OR  TO
 PRIVATE BUSINESSES SHALL DEVELOP A SYSTEM WHEREBY ANY RECORD WHICH IS TO
 BE  RE-DISCLOSED  CAN BE EASILY AND QUICKLY CHECKED BY THE PERSON, BUSI-
 NESS OR ENTITY WHICH HAD OBTAINED THE RECORD BEFORE  IT  WAS  SEALED  TO
 DETERMINE  IF  THE  RECORD HAS BEEN SUBSEQUENTLY SEALED. NO GOVERNMENTAL
 AGENCY SHALL SELL ANY RECORDS WITHOUT  DEVELOPING  SUCH  A  SYSTEM.  ANY
 RECORD  SOLD  OR  PROVIDED  TO  AN  INDIVIDUAL, BUSINESS OR ENTITY SHALL
 CONTAIN THE FOLLOWING WARNING:
   YOU ARE NOT PERMITTED TO DISCLOSE THIS INFORMATION TO  ANYONE  WITHOUT
 FIRST  CHECKING  TO SEE IF THIS RECORD WAS SEALED AFTER YOU RECEIVED IT.
 IT IS UNLAWFUL TO DISCLOSE SEALED RECORDS. TO DETERMINE IF  THIS  RECORD
 HAS BEEN SEALED, CONTACT (INCLUDE AGENCY CONTACT INFORMATION HERE).
   18.  EITHER  PARTY  MAY APPEAL AS OF RIGHT FROM THE COURT'S ORDER. THE
 APPEALING PARTY MUST SERVE NOTICE OF  APPEAL  UPON  THE  COURT  AND  THE
 OPPOSING PARTY WITHIN THIRTY DAYS OF THE ISSUANCE OF THE COURT ORDER. IF
 THE  ORDER IS APPEALED BY THE PROSECUTOR, SUCH NOTICE OF APPEAL SHALL BE
 DEEMED A STAY OF THE ORDER TO SEAL THE  RECORDS.  THE  PROSECUTOR  SHALL
 PERFECT  THE  APPEAL WITHIN SIXTY DAYS, OR THE SEALING ORDER SHALL IMME-
 DIATELY TAKE EFFECT UNLESS THE COURT GRANTS AN EXTENSION OF THE TIME  TO
 PERFECT  THE  APPEAL UPON GOOD CAUSE SHOWN BY THE PROSECUTOR. THE APPEAL
 SHALL BE TAKEN TO THE SAME COURT TO WHICH THE  APPEAL  OF  THE  ORIGINAL
 CONVICTION COULD HAVE BEEN BROUGHT. THE STANDARD OF REVIEW AT THE INTER-
 MEDIARY APPELLATE COURT SHALL BE ABUSE OF DISCRETION. THE DECISION OF AN
 INTERMEDIARY APPELLATE COURT SHALL BE APPEALABLE TO THE COURT OF APPEALS
 UPON LEAVE OF THE COURT.
   19.  THE  RIGHT  TO  MAKE AN APPLICATION UNDER THIS SECTION MAY NOT BE
 WAIVED AT THE TIME A GUILTY PLEA IS ENTERED ON  ANY  CASE  IN  NEW  YORK
 STATE.
   § 2. Subdivision 16 of section 296 of the executive law, as separately
 amended  by section 3 of part N and section 14 of part AAA of chapter 56
 of the laws of 2009, is amended to read as follows:
   16. It shall be an unlawful discriminatory  practice,  unless  specif-
 ically required or permitted by statute, for any person, agency, bureau,
 corporation or association, including the state and any political subdi-
 vision thereof, to make any inquiry about, whether in any form of appli-
 cation  or  otherwise,  or  to  act  upon  adversely  to  the individual
 involved, any arrest or criminal accusation of such individual not  then
 pending  against  that individual which was followed by a termination of
 that criminal action or proceeding  in  favor  of  such  individual,  as
 defined  in  subdivision two of section 160.50 of the criminal procedure
 law, or by a youthful offender adjudication, as defined  in  subdivision
 one  of section 720.35 of the criminal procedure law, or by a conviction
 for a violation sealed pursuant to section 160.55 of the criminal proce-
 dure law or by a conviction which is sealed pursuant to  section  160.58
 of  the  criminal  procedure  law,  OR BY A CONVICTION FOR A CRIMINAL OR
 NON-CRIMINAL OFFENSE WHICH IS SEALED PURSUANT TO SECTION 160.65  OF  THE

 S. 4027                             6
 
 CRIMINAL  PROCEDURE LAW, in connection with the licensing, employment or
 providing of credit or insurance to such individual; provided,  further,
 that  no  person  shall be required to divulge information pertaining to
 any  arrest  or  criminal accusation of such individual not then pending
 against that individual which was followed  by  a  termination  of  that
 criminal action or proceeding in favor of such individual, as defined in
 subdivision two of section 160.50 of the criminal procedure law, or by a
 youthful offender adjudication, as defined in subdivision one of section
 720.35 of the criminal procedure law, or by a conviction for a violation
 sealed pursuant to section 160.55 of the criminal procedure law, or by a
 conviction  which  is  sealed pursuant to section 160.58 of the criminal
 procedure law, OR BY A CONVICTION FOR A CRIMINAL OR NON-CRIMINAL OFFENSE
 WHICH IS SEALED PURSUANT TO SECTION 160.65  OF  THE  CRIMINAL  PROCEDURE
 LAW. The provisions of this subdivision shall not apply to the licensing
 activities of governmental bodies in relation to the regulation of guns,
 firearms  and  other deadly weapons or in relation to an application for
 employment as a police officer or  peace  officer  as  those  terms  are
 defined  in subdivisions thirty-three and thirty-four of section 1.20 of
 the criminal procedure law; provided further that the provisions of this
 subdivision shall not apply to an application for employment or  member-
 ship  in any law enforcement agency with respect to any arrest or crimi-
 nal accusation which was followed by a youthful  offender  adjudication,
 as  defined  in subdivision one of section 720.35 of the criminal proce-
 dure law, or by a conviction for a violation sealed pursuant to  section
 160.55 of the criminal procedure law, or by a conviction which is sealed
 pursuant  to  section  160.58  of  the  criminal  procedure law, OR BY A
 CONVICTION FOR A CRIMINAL OR NON-CRIMINAL OFFENSE WHICH IS SEALED PURSU-
 ANT TO SECTION 160.65 OF THE CRIMINAL PROCEDURE LAW.
   § 3. This act shall take effect on the sixtieth  day  after  it  shall
 have become a law.

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Senate Bill S4027

Sponsored By

Archive: Last Bill Status - In Senate Committee Codes Committee

2017-S4027 (ACTIVE) - Details

2017-S4027 (ACTIVE) - Summary

2017-S4027 (ACTIVE) - Sponsor Memo

2017-S4027 (ACTIVE) - Bill Text download pdf

Comments

Senate Bill S4027

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Sponsored By

Jamaal T. Bailey

Archive: Last Bill Status - In Senate Committee Codes Committee

2017-S4027 (ACTIVE) - Details

2017-S4027 (ACTIVE) - Summary

2017-S4027 (ACTIVE) - Sponsor Memo

2017-S4027 (ACTIVE) - Bill Text download pdf

Comments