S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8487
 
                           I N  A S S E M B L Y
 
                              January 4, 2024
                                ___________
 
 Introduced by M. of A. HEVESI -- read once and referred to the Committee
   on Children and Families
 
 AN  ACT  to  amend  the  family court act, in relation to 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, as amended by a chap-
 ter of the laws of 2023  amending  the  family  court  act  relating  to
 expungement  of  records  in persons in need of supervision cases in the
 family court, as proposed in legislative bills numbers S.  7444  and  A.
 6544, is amended to read as follows:
   §  783.  Use  of  records  in other court; 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.
   (b)  For  purposes  of this section, "expungement" shall mean that all
 official 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,  prosecution  and  court
 proceedings  and  records  of  the probation service and designated lead
 agency, including all duplicates or copies thereof,  on  file  with  the
 court,  police department and law enforcement agency, probation service,
 designated  lead  agency  and  presentment  agency,  if  any,  shall  be
 destroyed  and,  except for records sealed as provided in paragraphs (v)
 and (vi) of subdivision (c) of this section, shall not be made available
 to any person or public  or  private  agency.  PROVIDED,  HOWEVER,  THAT
 FOSTER CARE AND PREVENTIVE SERVICE RECORDS MAINTAINED BY SOCIAL SERVICES
 DEPARTMENTS  RELATING  TO  A  PROCEEDING UNDER THIS ARTICLE SHALL NOT BE
 SUBJECT TO EXPUNGEMENT OR SEALING UNDER THIS SECTION AND SHALL  BE  HELD
 CONFIDENTIAL IN ACCORDANCE WITH ARTICLE SIX OF THE SOCIAL SERVICES LAW.
   (c)  Automatic expungement of records of a proceeding under this arti-
 cle that is terminated in favor of the respondent. (i) Upon  termination
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD08943-02-4
 A. 8487                             2
 
 of a proceeding under this article in favor of the respondent, the clerk
 of  the  court  shall immediately notify and direct the directors of the
 appropriate probation department, designated  lead  agency  pursuant  to
 section  seven  hundred thirty-five of this article, A LOCAL EDUCATIONAL
 AGENCY IF AN OFFICIAL OF SUCH AGENCY  WAS  THE  PETITIONER  PURSUANT  TO
 SECTION SEVEN HUNDRED THIRTY-THREE OF THIS ARTICLE and, if a presentment
 agency  represented  the petitioner in the proceeding, such agency, that
 the proceeding has terminated in favor of the respondent  and  that  the
 records,  if any, of such action or proceeding on file with such offices
 shall be expunged. If the respondent had been the subject of  a  warrant
 or  an  arrest in connection with the proceeding, or law enforcement was
 the referring agency or petitioner pursuant  to  section  seven  hundred
 thirty-three  of  this  article,  the  notice  shall also be sent to the
 appropriate police department or law enforcement agency. Upon receipt of
 such notification, the records shall  be  expunged  in  accordance  with
 subdivision  (b)  of this section. The attorney for the respondent shall
 be notified by the clerk of the court in writing of the date  and  agen-
 cies and departments to which such notifications were sent.
   (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) diverted 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; or
   (B)  withdrawn or dismissed for failure to prosecute, or for any other
 reason at any stage; or
   (C) dismissed following an adjournment in contemplation  of  dismissal
 pursuant  to subdivision (a) of section seven hundred forty-nine of this
 article; or
   (D) resulted in an adjudication where  the  only  finding  was  for  a
 violation  of  former section 221.05 or section 230.00 of the penal law;
 provided, however, that with respect to findings under  this  paragraph,
 the  expungement required by this section shall not take place until the
 conclusion of the period of any  disposition  or  extension  under  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, or law  enforce-
 ment was the referring agency, the designated lead agency diverts a case
 either  prior  to  or  subsequent to the filing of a petition under this
 article,  the  designated  lead  agency  shall  notify  the  appropriate
 probation  service  and  police  department or law enforcement agency in
 writing of  such  diversion.    Such  notification  may  be  on  a  form
 prescribed  by  the  chief administrator of the courts.  Upon receipt of
 such notification, the probation service and police  department  or  law
 enforcement agency shall expunge any records 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 notify the appropriate probation service and designated lead agen-
 cy  of such determination. Such notification may be on a form prescribed
 by the chief administrator of the courts and may be transmitted by elec-
 tronic means. If the respondent had been the subject of a warrant or  an
 A. 8487                             3
 
 arrest  in  connection  with  the proceeding, or law enforcement was the
 referring agency, the notification shall also be sent to the appropriate
 police department or  law  enforcement  agency.  Upon  receipt  of  such
 notification,  the records shall be expunged 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, provided, however, that the desig-
 nated lead agency may have access to its own records in accordance  with
 paragraph (v) of this subdivision.
   (v)  Where a proceeding has been diverted pursuant to subparagraph (A)
 of paragraph (ii) of this subdivision or where  a  proceeding  has  been
 referred  for  the filing of a petition but the potential petitioner or,
 if represented by a presentment agency, such agency, elects not to  file
 a  petition  in accordance with paragraph (iv) of this subdivision, UPON
 RECEIPT OF WRITTEN NOTICE the designated lead agency  shall  seal  [its]
 ANY records RELATED TO THE PROCEEDING under this section THAT ARE IN ITS
 POSSESSION,  but  shall have access to [its own] SUCH records solely for
 the following purposes:
   (A) where there is continuing or subsequent  contact  with  the  child
 under this article; or
   (B)  where  the information is necessary for such department to deter-
 mine what services had been arranged or provided to the family or  where
 the  commissioner  determines that the information is necessary in order
 for the commissioner of such department  to  comply  with  section  four
 hundred twenty-two-a of the social services law.
   (vi)  Records  [expunged  or]  sealed under this section shall be made
 available to the juvenile or his or her agent and, where the  petitioner
 or  potential petitioner is a parent or other person legally responsible
 for the juvenile's care, such parent or other person. No statement  made
 to  a  designated  lead  agency  by the juvenile or his or her parent or
 other person legally responsible that is contained in a record  expunged
 or  sealed  under this section shall be admissible in any court proceed-
 ing, except upon the consent or at the  request,  respectively,  of  the
 juvenile  or  his  or her parent or other person legally responsible for
 the juvenile's care.
   (vii) 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 notification as described in such paragraphs grant-
 ing the relief set forth therein and such notification shall be granted.
   (d) Motion to expunge 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 expungement of the records and proceedings.
   (ii) Such motion must be in writing and  may  be  filed  at  any  time
 subsequent  to  the  conclusion  of  the disposition, including, but not
 limited to, the expiration of the period of placement,  suspended  judg-
 ment,  order of protection or probation or any extension thereof. 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
 A. 8487                             4
 
 represented by a presentment agency, such agency.  Answering  affidavits
 shall be served at least two days before the return date.
   (iii)  The  court  shall  set forth in a written order 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 desig-
 nated 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,  or  if  the  police  or  law
 enforcement  agency  was  the referring agency or petitioner pursuant to
 section seven hundred thirty-three  of  this  article,  the  appropriate
 police  or  law enforcement agency, shall be expunged in accordance with
 subdivision (b) of this section.
   (e) Automatic expungement of court records.   All records  under  this
 article  shall  be  automatically expunged upon the respondent's twenty-
 first birthday unless earlier expunged under this section, provided that
 expungement under this paragraph shall not take place until the  conclu-
 sion of the period of any disposition or extension under this article.
   (f)  Expungement  of court records; inherent power.  Nothing contained
 in this article shall preclude the court's use of its inherent power  to
 order the expungement of court records.
   § 2. This act shall take effect on the same day and in the same manner
 as  a chapter of the laws of 2023 amending the family court act relating
 to expungement of records in persons in need of supervision cases in the
 family court, as proposed in legislative bills numbers S.  7444  and  A.
 6544, takes effect.