S T A T E O F N E W Y O R K
________________________________________________________________________
8208--A
I N S E N A T E
June 16, 2010
___________
Introduced by Sens. ESPADA, PARKER -- read twice and ordered printed,
and when printed to be committed to the Committee on Rules -- commit-
tee discharged, bill amended, ordered reprinted as amended and recom-
mitted to said committee
AN ACT to amend the criminal procedure law, in relation to expungement
of criminal records
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:
S 160.65 EXPUNGEMENT OF ARREST REFERENCES AND RECORDS.
1. FOR THE PURPOSES OF THIS SECTION, THE TERM "ELIGIBLE MISDEMEANOR"
SHALL BE A MISDEMEANOR OFFENSE DEFINED IN THE PENAL LAW, PROVIDED THAT
AN ELIGIBLE MISDEMEANOR SHALL NOT MEAN A MISDEMEANOR OFFENSE DEFINED IN
ARTICLE ONE HUNDRED TWENTY, ONE HUNDRED THIRTY, ONE HUNDRED THIRTY-FIVE,
ONE HUNDRED FIFTY, TWO HUNDRED THIRTY-FIVE, TWO HUNDRED FORTY-FIVE, TWO
HUNDRED SIXTY, TWO HUNDRED SIXTY-THREE, TWO HUNDRED SIXTY-FIVE OR FOUR
HUNDRED OF THE PENAL LAW. AN ELIGIBLE MISDEMEANOR SHALL NOT INCLUDE ANY
ONE OR MORE OF THE FOLLOWING: KILLING OR INJURING A POLICE ANIMAL AS
DEFINED IN SECTION 195.06, HARMING AN ANIMAL TRAINED TO AID A PERSON
WITH A DISABILITY IN THE SECOND DEGREE AS DEFINED IN SECTION 195.11,
HARMING AN ANIMAL TRAINED TO AID A PERSON WITH A DISABILITY IN THE FIRST
DEGREE AS DEFINED IN SECTION 195.12, PROMOTING PROSTITUTION IN THE FORTH
DEGREE AS DEFINED IN SECTION 230.20, RIOT IN THE SECOND DEGREE AS
DEFINED IN SECTION 240.05, INCITING TO RIOT AS DEFINED IN SECTION
240.08, AGGRAVATED HARASSMENT IN THE SECOND DEGREE AS DEFINED IN SUBDI-
VISION THREE OF SECTION 240.30, CRIMINAL INTERFERENCE WITH HEALTH CARE
SERVICES OR RELIGIOUS WORSHIP IN THE SECOND DEGREE AS DEFINED IN SECTION
240.70, HARMING A SERVICE ANIMAL IN THE SECOND DEGREE AS DEFINED IN
SECTION 242.10, DISSEMINATION OF AN UNLAWFUL SURVEILLANCE IMAGE IN THE
SECOND DEGREE AS DEFINED IN SECTION 250.55, OR ANY SPECIFIED OFFENSE
SUBJECT TO THE PROVISION RELATING TO HATE CRIMES AS DEFINED IN SECTION
485.05 OF THE PENAL LAW.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD17741-02-0
S. 8208--A 2
2. A PERSON CONVICTED OF AN ELIGIBLE MISDEMEANOR, WHO DOES NOT STAND
CONVICTED OF ANY FELONY, OR WHO IS NOT REQUIRED TO MAINTAIN REGISTRATION
UNDER ARTICLE SIX-C OF THE CORRECTION LAW, MAY PETITION THE COURT TO
EXPUNGE THE ELIGIBLE MISDEMEANORS WHEN:
(A) AT LEAST FIVE YEARS HAVE PAST SINCE THE COMPLETION OF A SENTENCE
ON AN ELIGIBLE MISDEMEANOR; AND
(B) SUCH PERSON HAS NOT BEEN CONVICTED OF AN OFFENSE DURING THE LAST
FIVE YEARS AND IS NOT THE SUBJECT OF AN UNDISPOSED ARREST.
3. THE PETITION AUTHORIZED BY THIS SECTION SHALL BE FILED IN THE COURT
OF RECORD THAT LAST IMPOSED A SENTENCE UPON PETITIONER FOR AN ELIGIBLE
MISDEMEANOR. ON THE DEFENDANT'S MOTION, THE COURT MAY ORDER THAT ALL
OFFICIAL RECORDS AND PAPERS RELATING TO THE ARREST, PROSECUTION AND
CONVICTION RECORDS FOR NO MORE THAN THREE OF THE DEFENDANT'S PRIOR
ELIGIBLE MISDEMEANORS BE EXPUNGED. THE COURT MAY ONLY EXPUNGE THE
RECORDS OF THE DEFENDANT'S ARRESTS, PROSECUTIONS AND CONVICTIONS WHEN:
(A) THE SENTENCING COURT HAS REQUESTED AND RECEIVED FROM THE DIVISION
OF CRIMINAL JUSTICE SERVICES OR THE FEDERAL BUREAU OF INVESTIGATION A
FINGERPRINT BASED CRIMINAL HISTORY RECORD OF THE DEFENDANT, INCLUDING
ANY SEALED OR SUPPRESSED INFORMATION. THE DIVISION OF CRIMINAL JUSTICE
SERVICES SHALL ALSO INCLUDE A CRIMINAL HISTORY REPORT, IF ANY, FROM THE
FEDERAL BUREAU OF INVESTIGATION REGARDING ANY CRIMINAL HISTORY INFORMA-
TION THAT OCCURRED IN OTHER JURISDICTIONS. THE DIVISION IS HEREBY
AUTHORIZED TO RECEIVE SUCH INFORMATION FROM THE FEDERAL BUREAU OF INVES-
TIGATION FOR THIS PURPOSE. THE PARTIES SHALL BE PERMITTED TO EXAMINE
THESE RECORDS;
(B) THE DEFENDANT OR COURT HAS IDENTIFIED THE MISDEMEANOR CONVICTION
FOR WHICH RELIEF MAY BE GRANTED;
(C) THE COURT HAS RECEIVED DOCUMENTATION THAT THE SENTENCES IMPOSED ON
THE ELIGIBLE MISDEMEANOR CONVICTIONS HAVE BEEN COMPLETED, OR IF NO SUCH
DOCUMENTATION IS REASONABLY AVAILABLE, A SWORN AFFIDAVIT THAT THE
SENTENCES IMPOSED ON THE PRIOR MISDEMEANORS HAVE BEEN COMPLETED; AND
(D) THE COURT HAS NOTIFIED THE DISTRICT ATTORNEY OF EACH JURISDICTION
IN WHICH THE DEFENDANT HAS BEEN CONVICTED OF AN OFFENSE WITH RESPECT TO
WHICH SEALING IS SOUGHT, AND THE COURT OR COURTS OF RECORD FOR SUCH
OFFENSES, THAT THE COURT IS CONSIDERING SEALING THE RECORDS OF THE
DEFENDANT'S ELIGIBLE MISDEMEANOR CONVICTIONS. BOTH THE DISTRICT ATTORNEY
AND THE COURT SHALL BE GIVEN A REASONABLE OPPORTUNITY, WHICH SHALL NOT
BE LESS THAN THIRTY DAYS, IN WHICH TO COMMENT AND SUBMIT MATERIALS TO
AID THE COURT IN MAKING SUCH A DETERMINATION. WHEN THE COURT NOTIFIES A
DISTRICT ATTORNEY OF A SEALING APPLICATION, THE DISTRICT ATTORNEY SHALL
PROVIDE NOTICE TO THE VICTIM, IF ANY, OF THE SEALING APPLICATION BY
MAILING WRITTEN NOTICE TO THE VICTIM'S LAST-KNOWN ADDRESS. FOR PURPOSES
OF THIS SECTION "VICTIM" MEANS ANY PERSON WHO HAS SUSTAINED PHYSICAL OR
FINANCIAL INJURY TO PERSON OR TO PROPERTY AS A DIRECT RESULT OF THE
MISDEMEANOR CRIME OR MISDEMEANOR CRIMES FOR WHICH SEALING IS APPLIED.
4. AT THE REQUEST OF THE DEFENDANT OR THE DISTRICT ATTORNEY OF A COUN-
TY IN WHICH THE DEFENDANT COMMITTED A CRIME THAT IS THE SUBJECT OF THE
EXPUNGING APPLICATION, THE COURT MAY CONDUCT A HEARING TO CONSIDER AND
REVIEW ANY RELEVANT EVIDENCE OFFERED BY EITHER PARTY THAT WOULD AID THE
COURT IN ITS DECISION WHETHER TO EXPUNGE THE RECORDS OF THE DEFENDANT'S
ARRESTS, PROSECUTIONS AND CONVICTIONS. IN MAKING SUCH A DETERMINATION,
THE COURT SHALL CONSIDER ANY RELEVANT FACTORS, INCLUDING BUT NOT LIMITED
TO:
(A) THE CIRCUMSTANCES AND SERIOUSNESS OF THE OFFENSE OR OFFENSES THAT
RESULTED IN THE CONVICTION OR CONVICTIONS;
S. 8208--A 3
(B) THE CHARACTER OF THE DEFENDANT, INCLUDING WHAT STEPS THE PETITION-
ER HAS TAKEN SINCE THE TIME OF THE OFFENSE TOWARD PERSONAL REHABILI-
TATION, INCLUDING TREATMENT, WORK, SCHOOL, OR OTHER PERSONAL HISTORY
THAT DEMONSTRATES REHABILITATION;
(C) THE DEFENDANT'S CRIMINAL HISTORY;
(D) THE IMPACT OF SEALING THE DEFENDANT'S RECORDS UPON HIS OR HER
REHABILITATION AND HIS OR HER SUCCESSFUL AND PRODUCTIVE RE-ENTRY AND
REINTEGRATION INTO SOCIETY, AND ON PUBLIC SAFETY; AND
(E) ANY STATEMENTS MADE BY THE VICTIM OF THE OFFENSE WHERE THERE IS IN
FACT A VICTIM OF THE CRIME.
5. WHEN A COURT ORDERS EXPUNGING PURSUANT TO THIS SECTION, ALL OFFI-
CIAL RECORDS AND PAPERS RELATING TO THE ARRESTS, PROSECUTIONS, AND
CONVICTIONS, INCLUDING ALL DUPLICATES AND COPIES THEREOF, ON FILE WITH
THE DIVISION OF CRIMINAL JUSTICE SERVICES OR ANY COURT SHALL BE EXPUNGED
AND NOT MADE AVAILABLE TO ANY PERSON OR PUBLIC OR PRIVATE AGENCY;
PROVIDED, HOWEVER, THE DIVISION SHALL RETAIN ANY FINGERPRINTS, PALM-
PRINTS, PHOTOGRAPHS, OR DIGITAL IMAGES OF THE SAME.
6. WHEN THE COURT ORDERS SEALING PURSUANT TO THIS SECTION, THE CLERK
OF SUCH COURT SHALL IMMEDIATELY NOTIFY THE COMMISSIONER OF THE DIVISION
OF CRIMINAL JUSTICE SERVICES, AND ANY COURT THAT SENTENCED THE DEFENDANT
FOR AN OFFENSE WHICH HAS BEEN CONDITIONALLY SEALED, REGARDING THE
RECORDS THAT SHALL BE SEALED PURSUANT TO THIS SECTION.
7. THE COURT SHALL NOT EXPUNGE THE DEFENDANT'S RECORD PURSUANT TO THIS
SECTION WHILE ANY CHARGED OFFENSE IS PENDING.
S 2. This act shall take effect immediately.