Assembly Bill A10685

                                BILL NUMBER:A10685

TITLE  OF BILL:  An act to amend the criminal procedure law, in relation
to prosecutorial digression to dismiss accusatory instruments

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 amends section 160.50 of  the  Criminal  Procedure  Law  to
authorize  the sealing of court records in a criminal action or proceed-
ing in the event that the charges  are  dismissed  upon  motion  by  the
prosecutor.

Currently,  section  160.50  authorizes a court to seal the records in a
criminal action or proceeding that has been terminated in favor  of  the
defendant.  The purpose of the sealing rule is to ensure that the person
charged with, but not convicted of, a criminal offense is  free  of  the
stigma  of having been the subject of the charge. The records subject to
this provision consist of all official  records  and  papers,  including
judgments and orders of a court, but not including published court deci-
sions  or  opinions  or  records  and  briefs on appeal, relating to the
arrest or prosecution, including all duplicates and copies  thereof,  on
file  with  the Division of Criminal Justice Services, any court, police
agency, or prosecutor's office.   CPL 160.50(1).  Subdivision  three  of
this  provision  sets  forth  the  specific circumstances under which an
              

action or proceeding will be  considered  terminated  in  favor  of  the
defendant. See CPL 16050(3). The class of dispositions which qualify for
such  treatment  include  acquittal and various specified dismissals and
vacaturs. Id.

Prosecutors have the discretion not to proceed with a criminal action or
proceeding. See People v. Thomas, 4 Misc.3d 57, 59 (Sup. Ct., App.  Term
2004), aff'd 4 NY3d 143 (2005). Despite the broad class of  dispositions
covered  by  section  160.50,  however,  the  statute does not expressly
authorize the sealing of court records  when  the  prosecutor  moves  to
dismiss  the  entire accusatory instrument or when the prosecutor elects
not to prosecute after the accusatory  instrument  has  been  filed  but
prior  to  the  arraignment.  There  is no reason to exclude the records
associated with this class of dispositions from the sealing rule, howev-
er, and this measure would redress the matter.

By authorizing the sealing of court records upon a prosecutors motion to
dismiss or election not  to  proceed,  this  measure  would  extend  the
protections  of section 160.50 to a person whose criminal case is termi-
nated in his or her favor under these circumstances.

This measure, which would have no fiscal impact upon  the  State,  would
take effect immediately.

2010 Legislative History: None. New proposal.