Assembly Bill A5750

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  5750

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            February 19, 2009
                               ___________

Introduced  by M. of A. V. LOPEZ, MAYERSOHN -- read once and referred to
  the Committee on Higher Education

AN ACT to amend the education law, the penal law, the judiciary law  and
  the  correction law, in relation to the mandatory suspension and revo-
  cation of professional licenses for certain violations of articles 220
  and 221 of the penal law

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Subdivision  7  of  section  305 of the education law, as
amended by chapter 181 of the laws  of  2000,  is  amended  to  read  as
follows:
  7. The commissioner may annul upon cause shown to his or her satisfac-
tion  any  certificate  of  qualification  granted  to  a teacher by any
authority whatever or declare any diploma issued  by  a  state  teachers
college and state colleges for teachers ineffective and null as a quali-
fication  to teach IN a public school within this state, and the commis-
sioner may reconsider and reverse his or her action in any such  matter.
In  a proceeding brought pursuant to this subdivision on charges against
a certified teacher, the commissioner shall also be authorized to impose
as a penalty:
  a. suspension of a teaching certificate or license:
  (1) wholly for a fixed period of time; or
  (2) partially, until the teacher successfully completes  a  course  of
retraining in the area to which the suspension applies; or
  (3) wholly, until the teacher successfully completes a course of ther-
apy or treatment;
  b.  limitation  of the scope of a teaching certificate through revoca-
tion of an extension to teach additional subjects or grades;
  c. a fine not to exceed five thousand dollars; or
  d. a requirement that the teacher pursue a course of continuing educa-
tion or training.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD08842-01-9
              

A. 5750                             2

  The attorney general shall, at the request of the commissioner or  the
director  of  the division of the budget, bring an action in the name of
the people of the state of New York to  enforce  and  collect  any  fine
imposed  pursuant  to this subdivision. In any such action, the findings
and  determination  of  the  hearing  officer or hearing panel or of the
commissioner shall be admissible evidence and shall be conclusive  proof
of the violation and the penalty assessed. For purposes of this subdivi-
sion,  the term "teacher" shall mean any professional educator holding a
teaching certificate or license, including but not limited to  a  class-
room teacher, teaching assistant, pupil personnel services professional,
school administrator or supervisor or superintendent of schools.
  NOTWITHSTANDING  ANY  PROVISION OF THIS SUBDIVISION, WHEN A TEACHER IS
SENTENCED UPON A  CONVICTION  OF  ANY  OFFENSE  INVOLVING  A  CONTROLLED
SUBSTANCE  AS  DEFINED  BY  ARTICLE TWO HUNDRED TWENTY OF THE PENAL LAW,
OTHER THAN AN OFFENSE INVOLVING MARIHUANA, A FELONY CONVICTION  FOR  ANY
OFFENSE INVOLVING MARIHUANA AS DEFINED BY ARTICLE TWO HUNDRED TWENTY-ONE
OF  THE  PENAL  LAW, OR UPON A YOUTHFUL OFFENDER FINDING SUBSTITUTED FOR
SUCH CONVICTION, THE COMMISSIONER SHALL ANNUL ANY  SUCH  CERTIFICATE  OR
DECLARE  ANY  SUCH  DIPLOMA  INEFFECTIVE  AND NULL AS A QUALIFICATION TO
TEACH IN A COMMON SCHOOL OR IN ANY PUBLIC SCHOOL WITHIN THE  STATE,  AND
THE  COMMISSIONER  MAY  RECONSIDER AND REVERSE HIS OR HER ACTION IN SUCH
MATTER NO EARLIER THAN SIX MONTHS AFTER THE DATE OF  SUCH  ANNULMENT  OR
DECLARATION.
  S  2.  Paragraph  d  of subdivision 2 of section 6510 of the education
law, as amended by chapter 1018 of the laws of 1984, is amended to  read
as follows:
  d.  Convictions  of  crimes  or administrative violations. In cases of
professional misconduct based solely upon  a  violation  of  subdivision
five  of  section  sixty-five  hundred nine of this article, the profes-
sional conduct officer may prepare and serve the charges and  may  refer
the  matter  directly  to  a regents review committee for its review and
report of its findings, determination as to guilt, and recommendation as
to the measure of discipline to be imposed. In such cases the notice  of
hearing  shall  state that the licensee may file a written answer, brief
and affidavits; that the  licensee  may  appear  personally  before  the
regents  review committee, may be represented by counsel and may present
evidence or sworn testimony on behalf of the licensee,  and  the  notice
may  contain  such other information as may be considered appropriate by
the department. The department may also present evidence or sworn testi-
mony at the hearing. A stenographic record of the hearing shall be made.
Such evidence or sworn testimony offered at the meeting of  the  regents
review  committee shall be limited to evidence and testimony relating to
the nature and severity of the penalty to be imposed upon the  licensee.
The  presiding  officer  at  the meeting of the regents review committee
may, in his or her discretion, reasonably limit the number of  witnesses
whose testimony will be received and the length of time any witness will
be permitted to testify. In lieu of referring the matter to the board of
regents,  the  regents  review  committee  may refer any such matter for
further proceedings pursuant to paragraph b or c of this subdivision  or
subdivision  three of this section. SUCH REFERRAL SHALL NOT BE PERMITTED
WHERE THE PENALTY FOR  THE  PROFESSIONAL  MISCONDUCT  IS  PRESCRIBED  BY
SUBDIVISION TWO OF SECTION SIXTY-FIVE HUNDRED ELEVEN OF THIS ARTICLE.
  S  3.  Section 6511 of the education law, as amended by chapter 542 of
the laws of 2000, is amended to read as follows:
  S 6511. Penalties for professional misconduct.   [The]  1.  EXCEPT  AS
PROVIDED  IN SUBDIVISION TWO OF THIS SECTION, THE penalties which may be

A. 5750                             3

imposed by the board of regents on a present or  former  licensee  found
guilty of professional misconduct (under the definitions and proceedings
prescribed  in  sections  sixty-five hundred nine and sixty-five hundred
ten of this article) are:
  [(1)] A. censure and reprimand,
  [(2)]  B.  suspension of license, [(a)] (1) wholly, for a fixed period
of time; [(b)] (2) partially, until the licensee successfully  completes
a  course  of  retraining  in  the area to which the suspension applies;
[(c)] (3) wholly, until the licensee successfully completes a course  of
therapy or treatment prescribed by the regents;
  [(3)] C. revocation of license,
  [(4)] D. annulment of license or registration,
  [(5)]  E.  limitation  on  registration  or  issuance  of  any further
license,
  [(6)] F. a fine not to exceed ten thousand dollars, upon each specifi-
cation of charges of which the respondent is determined to be guilty,
  [(7)] G. a requirement that a licensee pursue a course of education or
training, and
  [(8)] H. a requirement that a licensee perform up to one hundred hours
of public service, in a manner and at a time and place  as  directed  by
the board.
  The  board of regents may stay such penalties in whole or in part, may
place the licensee on probation and may restore a license which has been
revoked, provided, in the case  of  licensees  subject  to  section  two
hundred  thirty  of  the  public  health  law,  notice that the board is
considering such restoration is given  to  the  office  of  professional
medical  conduct  at  least  thirty  days  before the date on which such
restoration shall be considered. Upon the recommendation of  the  office
of  professional  medical  conduct,  the  board of regents may deny such
restoration. Any fine imposed pursuant to this section  or  pursuant  to
subdivision two of section sixty-five hundred ten of this article may be
sued  for  and  recovered  in the name of the people of the state of New
York in an action brought by the attorney general. In  such  action  the
findings  and determination of the board of regents or of the violations
committee shall be admissible evidence and shall be conclusive proof  of
the violation and the penalty assessed.
  2.  THE  PENALTY WHICH SHALL BE IMPOSED BY THE BOARD OF REGENTS IN ANY
CASE WHERE A PRESENT LICENSEE HAS  BEEN  FOUND  GUILTY  OF  PROFESSIONAL
MISCONDUCT (UNDER THE DEFINITIONS AND PROCEEDINGS PRESCRIBED IN SECTIONS
SIXTY-FIVE  HUNDRED  NINE  AND  SIXTY-FIVE  HUNDRED TEN OF THIS ARTICLE)
CONSISTING OF CONDUCT FOR WHICH THE LICENSEE HAS BEEN CONVICTED  OF  ANY
OFFENSE  INVOLVING  A  CONTROLLED  SUBSTANCE  AS  DEFINED BY ARTICLE TWO
HUNDRED TWENTY OF THE PENAL LAW, OTHER THAN AN OFFENSE  INVOLVING  MARI-
HUANA,  A  FELONY  CONVICTION  FOR  ANY  OFFENSE  INVOLVING MARIHUANA AS
DEFINED BY ARTICLE TWO HUNDRED TWENTY-ONE OF THE PENAL LAW,  OR  UPON  A
YOUTHFUL   OFFENDER  FINDING  SUBSTITUTED  FOR  SUCH  CONVICTION,  SHALL
INCLUDE, IN ADDITION TO ANY OTHER PENALTIES DESCRIBED IN SUBDIVISION ONE
OF THIS SECTION WHICH THE BOARD SHALL DEEM  APPROPRIATE,  SUSPENSION  OF
SUCH LICENSE FOR A PERIOD OF NOT LESS THAN SIX MONTHS OR FOR SUCH LONGER
PERIOD, OR PERMANENT REVOCATION OF SUCH LICENSE, AS THE BOARD OF REGENTS
SHALL DEEM APPROPRIATE.
  S 4. The penal law is amended by adding a new section 60.31 to read as
follows:
S 60.31 NOTIFICATION  OF  CONVICTION  OR  YOUTHFUL  OFFENDER  FINDING IN
          CERTAIN CASES.

A. 5750                             4

  WHEN A PERSON IS SENTENCED UPON A CONVICTION OF ANY OFFENSE  INVOLVING
A  CONTROLLED SUBSTANCE AS DEFINED BY ARTICLE TWO HUNDRED TWENTY OF THIS
CHAPTER, OTHER THAN AN OFFENSE INVOLVING MARIHUANA, A FELONY  CONVICTION
FOR  ANY  OFFENSE  INVOLVING MARIHUANA AS DEFINED BY ARTICLE TWO HUNDRED
TWENTY-ONE  OF THIS CHAPTER, OR UPON A YOUTHFUL OFFENDER FINDING SUBSTI-
TUTED FOR SUCH CONVICTION, THE COURT SHALL ORDER  THAT  NOTIFICATION  OF
SUCH CONVICTION BE MADE TO THE NEW YORK BOARD OF REGENTS AND THE COMMIS-
SIONER OF EDUCATION IF SUCH PERSON HOLDS ANY PROFESSIONAL LICENSE GRANT-
ED  PURSUANT  TO  THE  PROVISIONS OF SECTIONS SIXTY-FIVE HUNDRED THROUGH
EIGHTY-TWO HUNDRED EIGHT OF THE EDUCATION LAW;  IF  SUCH  PERSON  IS  AN
ATTORNEY  AND COUNSELLOR-AT-LAW, THE COURT SHALL ORDER THAT NOTIFICATION
OF SUCH CONVICTION BE MADE TO THE  APPELLATE  DIVISION  OF  THE  SUPREME
COURT OF THE DEPARTMENT IN WHICH SUCH PERSON WAS ADMITTED TO PRACTICE.
  S  5. Paragraph d of subdivision 4 of section 90 of the judiciary law,
as added by chapter 674 of the laws of  1979,  is  amended  to  read  as
follows:
  d.    For  purposes  of this subdivision, the term serious crime shall
mean any criminal offense denominated a felony under  the  laws  of  any
state,  district  or  territory  or  of the United States which does not
constitute a felony under  the  laws  of  this  state,  ANY  MISDEMEANOR
OFFENSE  INVOLVING  A  CONTROLLED  SUBSTANCE  AS  DEFINED BY ARTICLE TWO
HUNDRED TWENTY OF THE PENAL LAW, OTHER THAN AN OFFENSE  INVOLVING  MARI-
HUANA,  and  any other crime a necessary element of which, as determined
by statutory or common law definition of such crime, includes  interfer-
ence  with  the  administration of justice, false swearing, misrepresen-
tation, fraud, willful failure  to  file  income  tax  returns,  deceit,
bribery, extortion, misappropriation, theft, or an attempt or conspiracy
or solicitation of another to commit a serious crime.
  S  6. Paragraph f of subdivision 4 of section 90 of the judiciary law,
as added by chapter 674 of the laws of  1979,  is  amended  to  read  as
follows:
  f.  (1)  Any  attorney  and  counsellor-at-law  convicted of a serious
crime, as defined in paragraph d of this subdivision, whether by plea of
guilty or nolo contendere or from a verdict after  trial  or  otherwise,
shall  be  suspended  upon  the receipt by the appellate division of the
supreme court of the record of such conviction until a  final  order  is
made pursuant to paragraph g of this subdivision.
  Upon good cause shown the appellate division of the supreme court may,
upon  application  of  the attorney or on its own motion, set aside such
suspension when it appears consistent with the maintenance of the integ-
rity and honor of the profession, the protection of the public  and  the
interest of justice.
  (2)  SUCH  SUSPENSION SHALL NOT BE SET ASIDE PRIOR TO SIX MONTHS AFTER
THE DATE SUCH  SUSPENSION  SHALL  HAVE  TAKEN  EFFECT  PURSUANT  TO  THE
PROVISIONS OF THIS PARAGRAPH WHERE AN ATTORNEY AND COUNSELLOR-AT-LAW HAS
BEEN  CONVICTED  OF  A  SERIOUS CRIME CONSTITUTING A MISDEMEANOR OFFENSE
INVOLVING A CONTROLLED SUBSTANCE AS DEFINED BY ARTICLE TWO HUNDRED TWEN-
TY OF THE PENAL LAW, OTHER THAN AN OFFENSE INVOLVING MARIHUANA.
  S 7. Subdivision 2 of section 701 of the correction law, as amended by
section 2 of chapter 235 of the laws of 2007,  is  amended  to  read  as
follows:
  2.  Notwithstanding any other provision of law, except (I) subdivision
five of section twenty-eight hundred six of the public health law  [or],
(II)  paragraph (b) of subdivision two of section eleven hundred ninety-
three of the vehicle and traffic law, (III) PARAGRAPH B  OF  SUBDIVISION
SEVEN  OF SECTION THREE HUNDRED FIVE OF THE EDUCATION LAW, (IV) SUBDIVI-

A. 5750                             5

SION TWO OF SECTION SIXTY-FIVE HUNDRED ELEVEN OF THE EDUCATION LAW,  (V)
PARAGRAPH  A OF SUBDIVISION FOUR OF SECTION NINETY OF THE JUDICIARY LAW,
WHEN THE FELONY CONVICTION  INVOLVED  IS  FOR  AN  OFFENSE  INVOLVING  A
CONTROLLED  SUBSTANCE  AS  DEFINED  BY ARTICLE TWO HUNDRED TWENTY OF THE
PENAL LAW, OR AN OFFENSE INVOLVING MARIHUANA AS DEFINED BY  ARTICLE  TWO
HUNDRED  TWENTY-ONE OF THE PENAL LAW, AND (VI) SUBPARAGRAPH TWO OF PARA-
GRAPH F OF SUBDIVISION FOUR OF SECTION NINETY OF THE  JUDICIARY  LAW,  a
conviction  of  a  crime  or of an offense specified in a certificate of
relief from disabilities shall not cause  automatic  forfeiture  of  any
license,  other  than a license issued pursuant to section 400.00 of the
penal law to a person convicted of a class A-I felony or a violent felo-
ny offense, as defined in subdivision one of section 70.02 of the  penal
law,  permit,  employment, or franchise, including the right to register
for or vote at an election, or automatic forfeiture of any  other  right
or  privilege,  held by the eligible offender and covered by the certif-
icate. Nor shall such conviction be deemed to be a conviction within the
meaning of any provision of law that imposes, by reason of a conviction,
a bar to any employment, a disability to exercise any right, or a  disa-
bility to apply for or to receive any license, permit, or other authori-
ty  or  privilege  covered by the certificate; provided, however, that a
conviction for a second or subsequent violation of  any  subdivision  of
section eleven hundred ninety-two of the vehicle and traffic law commit-
ted  within  the  preceding ten years shall impose a disability to apply
for or receive an operator's license during the period provided in  such
law;  and  provided  further, however, that a conviction for a class A-I
felony or a violent felony offense, as defined  in  subdivision  one  of
section  70.02  of the penal law, shall impose a disability to apply for
or receive a license or permit issued pursuant to section 400.00 of  the
penal law. A certificate of relief from a disability imposed pursuant to
subparagraph  (v) of paragraph b of subdivision two and paragraphs i and
j of subdivision six of section five hundred  ten  of  the  vehicle  and
traffic  law  may  only  be  issued upon a determination that compelling
circumstances warrant such relief.
  S 8. This act shall take effect on the ninetieth day  after  it  shall
have become a law, provided, however, that the amendments to subdivision
2  of  section  701 of the correction law, made by section seven of this
act, shall not affect the expiration of such subdivision, and  shall  be
deemed to expire therewith.