Senate Bill S5184

                                 BILL NUMBER:  S5184

 TITLE OF BILL :  An act to amend the criminal procedure law, in
relation to the sealing of certain court records for noncriminal
offenses

 PURPOSE : This bill would provide for sealing court records, other
than published opinions or documents on appeal, just as police and
prosecution records are sealed, when a person is convicted of a
non-criminal charge. The bill would thus restore practical protections
against employment discrimination consistent with the original
legislative intent behind CPL section 160.55, while maintaining
legitimate uses of information related to such convictions.

 SUMMARY OF PROVISIONS : Section one of the bill amends paragraphs (c)
and (d) of subdivision 1 of CPL section 160.55 by adding court records
(except published decisions or opinions and records and briefs on
appeal) to the list of records, set forth in paragraph (c), which are
to be sealed when a criminal action is terminated by conviction of the
non-criminal offenses specified in the opening paragraph of
subdivision 1.

Section two of this bill adds two new paragraphs lettered (e) and (D
to subdivision 1 of CPL section 160.55 and re-letters existing
paragraph (e) as paragraph (g). The two new paragraphs generally give
the court, prosecutor and defense access to the sealed court records
              

under specific circumstances and add re-disclosure limitations that
apply when sealed records are made available under section 160.55( 1)
(d) or (e). More specifically, new paragraph (e) makes sealed court
records available to a prosecutor in furtherance of a pending criminal
investigation and also to the court, the prosecution and the defense
when a case is reopened, when the former defendant is charged with a
new crime, and when the former defendant becomes a witness.  New
paragraph (f) limits the use of unsealed records and prohibits
re-disclosure by those who have obtained lawful access. It also
provides that after the proceeding has been concluded, the records
shall be resealed.

Section 3 of the bill amends subdivision 3 of CPL section 160.55 by
substituting a reference to the convictions described in the opening
paragraph of subdivision 1 for language specifically describing those
convictions.

Section 4 of the bill is the effective date. It also provides that the
court system shall implement record-sealing for cases completed prior
to the effective date, without the need for individual motions for
relief

 JUSTIFICATION : This law will amend the criminal procedure law, in
relation to the sealing of court records of persons who were convicted
of non-criminal charges. Because court records are both publicly
available and now computerized, and because licensed investigative
agencies can access those records, potential employers, potential
creditors and others who use investigative agencies to investigate
their applicants can now use court records, instead of requesting
criminal history records (rap sheets) from the Division of Criminal
Justice Services. This bill ensures that court records, except for
published opinions and records on appeal, will be sealed in the same
manner as records on file with the Division of Criminal Justice
Services.

The fact that under existing law, court records, unlike fingerprint
and associated police and prosecution records, are not sealed has
become a serious problem. Court records are now computerized, and the
court system sells easy, computerized access to licensed investigative
agencies, among others. Indeed, access to court records is easier than
access to NYSIID (rap sheet) information. The result is that potential
employers, potential creditors and others who use investigative
agencies to investigate their applicants now use court records,
instead of rap sheet inquiries, to learn about criminal histories.
These electronic court records contain not only the charge of
conviction, but also contain additional charges that appear in arrest
documents or accusatory instruments, charges that were dropped by the
prosecution or dismissed by the court, in many cases because the
charges were unprovable or inaccurate. In enacting CPL § 160.55, the
Legislature sought to shield persons who were convicted only of
non-criminal offenses from employment discrimination and damage to
their reputations arising from their arrests. This bill restores the
Legislature's original intent, while also respecting the purpose
behind the Legislature's 1992 amendment (chapter 249, laws of 1992)
clarifying that court records were not to be sealed under §160.55.

At the time CPL § 160.55 was originally enacted, the goal of
eliminating employment-related discrimination against this class of
persons could be accomplished by sealing fingerprint-related records.
Court records were not normally used to investigate job applicants
because of the practical difficulty of traveling to every courthouse.
The Legislature's 1992 amendment was not meant to facilitate the
discrimination that § 160.55 was meant to prohibit, but was meant to
assure that persons who pled to traffic infractions or violations
could not hide their past petty-offense convictions in the event of
future violations of the law. (See, e.g., memo of Dept. of Motor
Vehicles, expressing concern that sealing court records could impair
the Department's efforts to maintain accurate driving records and
impose appropriate license sanctions.) The amendment would allow
intended uses of these records while preventing unintended uses.

The specific provisions of this bill allow the court, the prosecution
and the defense to gain access to court records sealed under CPL §
160.55 when a sealed case is re-opened (e.g., when a defendant has
failed to perform restitution or community service), when the
defendant is re-arrested, or when the former defendant testifies as a
witness. It also allows a prosecutor access to such records in
furtherance of a pending criminal investigation. This serves the
legitimate desire of the prosecution to consider the previous charges
in formulating their recommended disposition of the new case, and also
serves the legitimate need of trial attorneys to be able to cross
examine witnesses. The provisions reinforce the distinction between
CPL § 160.50, under which cases terminated in the defendant's favor
are to be "deemed a nullity," under § 160.60, and CPL § 160.55, under
which a conviction exists but should not be the basis for
discrimination in employment or other non-criminal contexts. The bill
also limits the use of unsealed records and prohibits re"disclosure by
persons and agencies who have obtained lawful access. This prohibition
is implicit in existing law, but it is an added protection to spell it
out. Cf. § 995-d of the Executive Law, making DNA records
confidential, and prohibiting unauthorized "redisclosure" of such
records outside the limited contexts in which disclosure is lawful.
Finally, the proposed legislation requires the court system to
implement record-sealing for completed cases. This is readily
achievable, particularly for computerized records, and for paper
records which are specifically requested. These Court records already
bear an indication that they are sealed under CPL § 16 0.55. There is
no reason to require a person whose law enforcement records are
already sealed to come into court and move for sealing of the court
records. Imposing such a requirement would nullify the value of the
amendment for many tens of thousands of persons who would otherwise
benefit from it.

 LEGISLATIVE HISTORY : A.8435 (2005-06).

 FISCAL IMPLICATIONS : To be determined.
 EFFECTIVE DATE : This act shall take effect on the first of November
following the date after it shall have become a law.