S T A T E O F N E W Y O R K
________________________________________________________________________
5633
2009-2010 Regular Sessions
I N A S S E M B L Y
February 17, 2009
___________
Introduced by M. of A. AUBRY, PERALTA, GREENE, POWELL, MILLMAN, TITUS,
WRIGHT -- Multi-Sponsored by -- M. of A. BOYLAND, GLICK, HOOPER, PRET-
LOW, ROBINSON, TOWNS -- read once and referred to the Committee on
Codes
AN ACT to amend the criminal procedure law and the executive law, in
relation to the conditional sealing of drug convictions
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 PETITION TO CONDITIONALLY SEAL CERTAIN CONVICTIONS.
1. AS USED IN THIS SECTION, THE FOLLOWING TERMS SHALL MEAN AS FOLLOWS:
(A) "ELIGIBLE FELONY" SHALL BE A FELONY OFFENSE DEFINED IN ARTICLE TWO
HUNDRED TWENTY OR TWO HUNDRED TWENTY-ONE OF THE PENAL LAW;
(B) "ELIGIBLE MISDEMEANOR" SHALL BE A MISDEMEANOR OFFENSE DEFINED IN
ARTICLE TWO HUNDRED TWENTY OR TWO HUNDRED TWENTY-ONE OF THE PENAL LAW;
AND
(C) "SPECIFIED OFFENSE" MEANS AN OFFENSE THAT WOULD MAKE A PERSON
INELIGIBLE FOR MERIT TIME UNDER SECTION EIGHT HUNDRED THREE OF THE
CORRECTION LAW OR AN OFFENSE FOR WHICH REGISTRATION AS A SEX OFFENDER IS
REQUIRED AS SET FORTH IN SUBDIVISION TWO OR THREE OF SECTION ONE HUNDRED
SIXTY-EIGHT-A OF THE CORRECTION LAW. SPECIFIED OFFENSE SHALL ALSO
INCLUDE AN OFFENSE IN ANY OTHER JURISDICTION THAT INCLUDES ALL THE
ESSENTIAL ELEMENTS OF AN OFFENSE DESCRIBED IN THIS PARAGRAPH.
2. A PERSON MAY PETITION FOR THE RECORD OF ANY ELIGIBLE FELONY OR ANY
ELIGIBLE MISDEMEANOR TO BE CONDITIONALLY SEALED:
(A) UPON THE PERSON'S COMPLETION OF A SENTENCE, AND ANY PERIOD OF
POST-RELEASE SUPERVISION WHERE APPLICABLE, ON AN ELIGIBLE FELONY,
PROVIDED THAT SUCH PERSON HAS COMPLETED A CHEMICAL DEPENDENCE TREATMENT
PROGRAM, AND DOES NOT STAND CONVICTED OF A SPECIFIED OFFENSE;
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD04386-02-9
A. 5633 2
(B) UPON COMPLETION OF A SENTENCE ON AN ELIGIBLE MISDEMEANOR, PROVIDED
THAT SUCH PERSON DOES NOT STAND CONVICTED OF A SPECIFIED OFFENSE;
(C) TWO YEARS AFTER THE COMPLETION OF A SENTENCE, AND ANY PERIOD OF
POST-RELEASE SUPERVISION WHERE APPLICABLE, ON A CLASS D OR E ELIGIBLE
FELONY, PROVIDED THAT SUCH PERSON HAS NOT BEEN CONVICTED OF ANY CRIME
FOR THE LAST TWO YEARS, AND DOES NOT STAND CONVICTED OF A SPECIFIED
OFFENSE; OR
(D) FOUR YEARS AFTER THE COMPLETION OF A SENTENCE, AND ANY PERIOD OF
POST-RELEASE SUPERVISION WHERE APPLICABLE, ON A CLASS B OR C ELIGIBLE
FELONY, PROVIDED THAT SUCH PERSON HAS NOT BEEN CONVICTED OF ANY CRIME
FOR THE LAST FOUR YEARS, AND DOES NOT STAND CONVICTED OF A SPECIFIED
OFFENSE.
3. A PETITION AUTHORIZED BY THIS SECTION SHALL INCLUDE:
(A) IDENTIFICATION OF THE CONVICTION OR CONVICTIONS FOR WHICH THE
PETITIONER IS SEEKING RELIEF;
(B) DOCUMENTATION THAT THE SENTENCE IMPOSED ON THE CONVICTION OR
CONVICTIONS HAS BEEN COMPLETED AND DATE OF COMPLETION, OR IF SUCH
DOCUMENTATION IS NOT REASONABLY AVAILABLE, A SWORN AFFIDAVIT THAT THE
SENTENCE IMPOSED ON THE CONVICTION OR CONVICTIONS HAS BEEN COMPLETED AND
DATE OF COMPLETION;
(C) FOR PETITIONS FILED UNDER PARAGRAPH (A) OF SUBDIVISION TWO OF THIS
SECTION, EVIDENCE THAT THE PETITIONER COMPLETED A CHEMICAL DEPENDENCE
TREATMENT PROGRAM AND THAT THE PETITIONER IS NOT DEPENDENT ON ALCOHOL OR
DRUGS EXCEPT AS PRESCRIBED BY A MEDICAL PRACTITIONER;
(D) A SWORN AFFIDAVIT THAT NO CRIMINAL CHARGES ARE PENDING AGAINST THE
PETITIONER AND THE PETITIONER HAS NOT BEEN CONVICTED OF A SPECIFIED
OFFENSE; AND
(E) ANY OTHER SUPPORTING MATERIALS THAT WOULD ASSIST IN DETERMINING
WHETHER IT WOULD BE IN THE INTEREST OF JUSTICE TO GRANT THE PETITION.
4. (A) THE PETITION SHALL BE FILED WITH THE STATE BOARD OF PAROLE, AND
THE PETITIONER SHALL NOTIFY THE DISTRICT ATTORNEY OF EACH JURISDICTION
IN WHICH THE PETITIONER WAS CONVICTED OF A CRIME WITHIN TWENTY DAYS OF
THE DATE THE PETITION WAS FILED. THE DISTRICT ATTORNEY, WITHIN THIRTY
DAYS OF RECEIVING NOTICE OF THE PETITION, MAY SUBMIT MATERIALS IN
SUPPORT OF THE PETITION OR TO DEMONSTRATE THAT THE INTEREST OF JUSTICE
WOULD NOT BE SERVED BY GRANTING THE PETITION. THE STATE BOARD OF PAROLE
SHALL REQUEST FROM THE DIVISION OF CRIMINAL JUSTICE SERVICES A COPY OF
THE PETITIONER'S CURRENT CRIMINAL HISTORY RECORD, INCLUDING ANY SEALED
CONVICTION INFORMATION.
(B) THE STATE BOARD OF PAROLE SHALL DETERMINE WHETHER THE PETITIONER
HAS DEMONSTRATED, BY A PREPONDERANCE OF THE EVIDENCE, THAT IT WOULD BE
IN THE INTEREST OF JUSTICE TO GRANT THE PETITION. IN MAKING ITS DETERMI-
NATION, THE STATE BOARD OF PAROLE SHALL CONSIDER THE FOLLOWING FACTORS:
(I) THE CIRCUMSTANCES AND SERIOUSNESS OF THE OFFENSE OR OFFENSES THAT
RESULTED IN THE CONVICTION OR CONVICTIONS; (II) THE CHARACTER OF THE
PETITIONER, INCLUDING EVIDENCE THAT THE PETITIONER PARTICIPATED IN AND
SUCCESSFULLY COMPLETED CHEMICAL DEPENDENCE TREATMENT OR OTHERWISE IS IN
RECOVERY IF IT IS DETERMINED THAT THE PETITIONER HAS A HISTORY OF CHEMI-
CAL DEPENDENCE; (III) THE CRIMINAL HISTORY OF THE PETITIONER; (IV) THE
IMPACT OF GRANTING THE PETITION UPON THE REHABILITATION OF THE PETITION-
ER AND ON PUBLIC SAFETY; AND (V) ANY OTHER RELEVANT FACTORS.
(C) THE STATE BOARD OF PAROLE SHALL MAKE A DETERMINATION ON THE PETI-
TION WITHIN NINETY DAYS OF THE DATE THE PETITION WAS FILED AND SHALL
STATE IN WRITING THE REASONS FOR ITS DETERMINATION.
(D) UPON THE GRANTING OF A PETITION, THE STATE BOARD OF PAROLE SHALL
ISSUE A CONDITIONAL SEALING ORDER AND PROMPTLY NOTIFY IN WRITING THE
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PETITIONER, THE DISTRICT ATTORNEY OF EACH JURISDICTION IN WHICH THE
PETITIONER WAS CONVICTED OF A CRIME, AND THE DIVISION OF CRIMINAL
JUSTICE SERVICES. THE DIVISION OF CRIMINAL JUSTICE SERVICES SHALL NOTIFY
THE CLERK OF THE COURT WHERE SUCH ACTIONS OR PROCEEDINGS SHALL BE
SEALED, THE HEADS OF ALL APPROPRIATE POLICE DEPARTMENTS AND OTHER LAW
ENFORCEMENT AGENCIES OF THE CONDITIONAL SEALING ORDER. UPON SUCH NOTIFI-
CATION, RECORDS SHALL BE SEALED IN A MANNER CONSISTENT WITH SECTION
160.50 OF THIS ARTICLE. THE STATE BOARD OF PAROLE SHALL ALSO NOTIFY THE
PETITIONER THAT ANY SUBSEQUENT CHARGE FOR ANY MISDEMEANOR OR FELONY
SHALL CONDITIONALLY UNSEAL THE RECORD OF THE CONVICTION OR CONVICTIONS
AND THAT IF SUCH CHARGE RESULTS IN A CONVICTION FOR A CRIME, THE CONDI-
TIONAL SEALING ORDER WILL BE AUTOMATICALLY VACATED.
(E) IF THE PETITION IS DENIED, THE STATE BOARD OF PAROLE SHALL PROMPT-
LY NOTIFY IN WRITING THE PETITIONER AND ANY DISTRICT ATTORNEY WHO
SUBMITTED MATERIALS PURSUANT TO THIS SUBDIVISION.
(F) PURSUANT TO SECTION 160.70 OF THIS ARTICLE, THE PETITIONER AND THE
DISTRICT ATTORNEY OF EACH JURISDICTION IN WHICH THE PETITIONER WAS
CONVICTED OF A CRIME MAY BRING A MOTION IN COURT TO REVERSE OR MODIFY
THE STATE BOARD OF PAROLE'S DETERMINATION ON THE PETITION. IF THE
RECORDS TO BE CONDITIONALLY SEALED INCLUDE AN ELIGIBLE FELONY, A MOTION
FILED UNDER THIS PARAGRAPH SHALL BE MADE IN THE COURT OF RECORD THAT
LAST IMPOSED SENTENCE UPON THE PETITIONER FOR AN ELIGIBLE FELONY. IF THE
RECORDS TO BE SEALED INCLUDE ONLY ELIGIBLE MISDEMEANORS, A MOTION FILED
UNDER THIS PARAGRAPH SHALL BE MADE TO THE COURT THAT LAST IMPOSED A
SENTENCE UPON PETITIONER FOR AN ELIGIBLE MISDEMEANOR.
5. IN THE EVENT THAT A PERSON WHO HAS HAD A RECORD CONDITIONALLY
SEALED UNDER THIS SECTION IS SUBSEQUENTLY CHARGED WITH A CRIME, THE
RECORDS RELATING TO THE CONVICTION OR CONVICTIONS SHALL BE CONDITIONALLY
UNSEALED PENDING THE FINAL DISPOSITION OF THE CHARGE. IF SUCH CHARGE
RESULTS IN A CONVICTION OF A CRIME, THE CONDITIONAL SEALING ORDER SHALL
BE DEEMED AUTOMATICALLY VACATED. THE DIVISION OF CRIMINAL JUSTICE
SERVICES AND ANY OTHER ENTITY SUBJECT TO SUCH ORDER SHALL UNSEAL ANY
RECORDS THAT HAD BEEN SEALED BY VIRTUE OF THIS SECTION. ALL RECORDS
UNSEALED PURSUANT TO THIS SUBDIVISION SHALL BE RESTORED TO THEIR
ORIGINAL STATUS AND TREATED AS THOUGH THE CONDITIONAL SEALING ORDER HAD
NOT BEEN ENTERED. IF SUCH SUBSEQUENT CHARGE RESULTS IN PROCEEDINGS THAT
ARE TERMINATED IN FAVOR OF THE ACCUSED AS DESCRIBED IN SUBDIVISION THREE
OF SECTION 160.50 OF THIS ARTICLE OR BY CONVICTION FOR A NONCRIMINAL
OFFENSE AS DESCRIBED IN SECTION 160.55 OF THIS ARTICLE, THE ORIGINAL
CONDITIONAL SEALING ORDER SHALL REMAIN IN EFFECT.
6. FOR PURPOSES OF THIS SECTION, CONDITIONAL SEALING SHALL MEAN THAT
THE RECORDS OF THE SUBJECT CONVICTION OR CONVICTIONS ARE SEALED AS
PROVIDED IN SECTION 160.50 OF THIS ARTICLE, AND SHALL NOT BE MADE AVAIL-
ABLE TO ANY PERSON OR PUBLIC OR PRIVATE AGENCY, EXCEPT SUCH RECORDS
SHALL BE MADE AVAILABLE TO: (A) THE PETITIONER OR TO SUCH PETITIONER'S
DESIGNATED AGENT; (B) A PROSECUTOR, A LAW ENFORCEMENT AGENCY, OR A COURT
WHICH HAS RESPONSIBILITY FOR CRIMINALLY INVESTIGATING, PROSECUTING, OR
ADJUDICATING THE PETITIONER; (C) ANY STATE OR LOCAL OFFICE OR AGENCY
WITH RESPONSIBILITY FOR THE ISSUANCE OF LICENSES TO POSSESS GUNS, WHEN
THE PETITIONER HAS MADE APPLICATION FOR SUCH A LICENSE; (D) ANY PROSPEC-
TIVE EMPLOYER OF A POLICE OFFICER OR PEACE OFFICER AS THOSE TERMS ARE
DEFINED IN SUBDIVISIONS THIRTY-THREE AND THIRTY-FOUR OF SECTION 1.20 OF
THIS CHAPTER, IN RELATION TO AN APPLICATION FOR EMPLOYMENT AS A POLICE
OFFICER OR PEACE OFFICER; PROVIDED, HOWEVER, THAT EVERY PERSON WHO IS AN
APPLICANT FOR THE POSITION OF POLICE OFFICER OR PEACE OFFICER SHALL BE
FURNISHED WITH A COPY OF ALL RECORDS OBTAINED UNDER THIS PARAGRAPH AND
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AFFORDED AN OPPORTUNITY TO MAKE AN EXPLANATION THERETO; (E) PERSONS OR
PUBLIC OR PRIVATE AGENCIES WHO ARE MANDATED BY LAW TO FINGERPRINT INDI-
VIDUALS AS PART OF A BACKGROUND CHECK; AND (F) PROSPECTIVE EMPLOYERS OF
CAREGIVERS WHO SUBMIT FINGERPRINTS TO THE DIVISION OF CRIMINAL JUSTICE
SERVICES UNDER SECTION EIGHT HUNDRED THIRTY-SEVEN-N OF THE EXECUTIVE
LAW. RECORDS CONDITIONALLY SEALED PURSUANT TO THIS SECTION SHALL ALSO
BE MADE AVAILABLE, IF OTHERWISE ADMISSIBLE, FOR USE BEFORE THE JURY, OR
THE JUDGE AS TRIER OF FACT, IF THE PERSON WHO IS THE SUBJECT OF THE
RECORD IS A WITNESS AS DEFINED IN PARAGRAPH (B) OR (C) OF SUBDIVISION
ONE OR PARAGRAPH (B) OR (C) OF SUBDIVISION TWO OF SECTION 240.45 OF THIS
CHAPTER.
7. THE INTENTIONAL DISSEMINATION OR THE IMPROPER AND INTENTIONAL
ACQUISITION OF INFORMATION THAT HAS BEEN SEALED PURSUANT TO THIS SECTION
MAY RESULT IN A CIVIL PENALTY OF UP TO ONE THOUSAND DOLLARS FOR EACH
SUCH VIOLATION. THE CIVIL PENALTY PROVIDED FOR IN THIS SUBDIVISION MAY
BE RECOVERED IN A CIVIL ACTION BROUGHT BY THE ATTORNEY GENERAL.
S 2. The criminal procedure law is amended by adding a new section
160.70 to read as follows:
S 160.70 COURT DETERMINATIONS RELATING TO PETITIONS TO CONDITIONALLY
SEAL CERTAIN CONVICTIONS.
WHEN THE COURT WHICH IMPOSED SENTENCE FOR AN ELIGIBLE FELONY OR ELIGI-
BLE MISDEMEANOR AS DESCRIBED IN SUBDIVISION ONE OF SECTION 160.65 OF
THIS ARTICLE RECEIVES A MOTION PURSUANT TO PARAGRAPH (F) OF SUBDIVISION
FOUR OF SUCH SECTION 160.65, SUCH COURT SHALL DETERMINE WHETHER THE
DECISION BY THE STATE BOARD OF PAROLE WAS REASONABLE ACCORDING TO THE
FACTORS SET FORTH IN PARAGRAPH (B) OF SUBDIVISION FOUR OF SUCH SECTION
160.65. IN MAKING THIS DETERMINATION, THE COURT SHALL ONLY CONSIDER THE
RECORD THAT WAS BEFORE THE STATE BOARD OF PAROLE AT THE TIME OF THE
BOARD'S DECISION. THE COURT SHALL HAVE ACCESS TO ALL MATERIALS REVIEWED
BY THE STATE BOARD OF PAROLE IN MAKING ITS DETERMINATION. EACH PARTY
SHALL HAVE AN OPPORTUNITY TO BE HEARD. AFTER DECIDING THE MOTION, THE
COURT SHALL REMIT THE MATTER FOR A FINAL DETERMINATION BY THE STATE
BOARD OF PAROLE, WHICH SHALL BE CONSISTENT WITH THE COURT'S RULING.
S 3. Section 160.60 of the criminal procedure law, as amended by chap-
ter 877 of the laws of 1976, is amended to read as follows:
S 160.60 Effect of termination of criminal actions in favor of the
accused.
Upon the termination of a criminal action or proceeding against a
person in favor of such person, as defined in subdivision two of section
160.50 of this [chapter] ARTICLE, OR UPON THE CONDITIONAL SEALING OF A
CONVICTION OR CONVICTIONS, AS DEFINED IN SECTION 160.65 OF THIS ARTICLE,
the arrest [and], prosecution AND CONVICTION OR CONVICTIONS CONDI-
TIONALLY SEALED shall be deemed a nullity and the accused shall be
restored, in contemplation of law, to the status he occupied before the
arrest [and], prosecution AND CONVICTION OR CONVICTIONS. The arrest
[or], prosecution, CONVICTION OR CONVICTIONS CONDITIONALLY SEALED shall
not operate as a disqualification of any person so accused to pursue or
engage in any lawful activity, occupation, profession, or calling.
Except where specifically required IN SUCH SECTION 160.65 or permitted
by statute or upon specific authorization of a superior court, no such
person shall be required to divulge information pertaining to the arrest
[or], prosecution, CONVICTION OR CONVICTIONS CONDITIONALLY SEALED. IN
THE CASE OF A CONVICTION CONDITIONALLY SEALED, AN EMPLOYER, EXCEPT THOSE
PERSONS OR PUBLIC OR PRIVATE AGENCIES WHO ARE MANDATED BY LAW TO FINGER-
PRINT INDIVIDUALS AS PART OF A BACKGROUND CHECK AND PROSPECTIVE EMPLOY-
ERS OF CAREGIVERS UNDER SECTION EIGHT HUNDRED THIRTY-SEVEN-N OF THE
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EXECUTIVE LAW, MAY ONLY ASK WHETHER A PERSON HAS BEEN CONVICTED OF A
CRIME THAT HAS NOT BEEN CONDITIONALLY SEALED. IN THE EVENT THAT AN
EMPLOYER ASKS AN UNLAWFUL QUESTION, THE PERSON SHALL ONLY HAVE TO REVEAL
THOSE CRIMINAL CONVICTIONS THAT HAVE NOT BEEN CONDITIONALLY SEALED.
S 4. Subdivision 16 of section 296 of the executive law, as amended by
chapter 639 of the laws of 2007, 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 ANY CONVICTION OR CONVICTIONS THAT HAVE BEEN CONDITIONALLY
SEALED, AS DEFINED IN SECTION 160.65 OF THE CRIMINAL PROCEDURE LAW, in
connection with the licensing, employment or providing of credit or
insurance to such individual; provided, however, that the provisions
hereof 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 membership in any law enforce-
ment agency with respect to any arrest or criminal accusation which was
followed 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.
S 5. This act shall take effect on the ninetieth day after it shall
have become a law and shall apply to all convictions occurring prior to,
on, and after the effective date.