NY State Senate Bill 2009-S5734A

Archive: Last Bill Status - In Senate Committee Codes Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 06, 2010	referred to codes
Jun 05, 2009	print number 5734a
Jun 05, 2009	amend (t) and recommit to codes
Jun 01, 2009	referred to codes

Bill Amendments

Original

A (Active)

2009-S5734 - Details

Current Committee:: Senate Codes
Law Section:: Criminal Procedure Law
Laws Affected:: Amd §160.58, CP L

2009-S5734 - Summary

Relates to those entities that can have access to conditionally sealed records.

2009-S5734 - Sponsor Memo

                                 BILL NUMBER:  S5734

 TITLE OF BILL :
An act to repeal section 160.58 of the criminal procedure law relating
to the conditional sealing of certain criminal records

 PURPOSE :
To repeal section 160.58 of the criminal procedure law as it relates
to the conditional sealing of certain criminal records.

 SUMMARY OF PROVISIONS :
Section 1 repeals section 160.58 of the criminal procedure law.
Section 160.58 currently authorizes a criminal court on its own
motion, or upon motion of the defendant, and on notice to the
prosecutor, to seal all records of the current prosecution for Class
B, C, D and E drug felonies. This section also relates to other
non-drug offenses enumerated in CPL 410.91. Section 160.58 is
triggered when a defendant successfully completes a diversion program,
such as drug court. The section to be repealed further allows the
Court to seal up to three previous drug misdemeanors in addition to
the pending felony or felonies.

Section 2 is the effective date.

 JUSTIFICATION :
As part of the 2009-2010 budget a comprehensive Rockefeller Drug Law

reform was enacted. Part of this reform allowed for the sealing of
certain criminal records as it related to drug offenses once they
completed their sentence as well as a court ordered treatment program.
As the state mandates certain employers (child and elder care workers,
elected officials, judges, school bus drivers, and public school
teachers for example)to conduct criminal history checks this
legislation would effectively make these background checks completely
ineffective. Further both Federal and State law expressly prohibit
individuals with certain convictions from being employed in certain
jobs, section 160.58 now makes it possible for employers to hire
individuals who violate these prohibitions without the employer being
aware of their convictions.  Some of the felony convictions that can
now be concealed are sale and possession of unlimited amounts of
cocaine and heroin, commercial burglary, forgery, credit card and auto
theft, and extortion. Some of the misdemeanor convictions that can be
concealed are possession of heroin, cocaine, methamphetamine, or
crack.  While the intent of the legislation was laudable, there are
significant changes that should be made to this law in order to better
protect the citizens of the State of New York.

 LEGISLATIVE HISTORY :
New Bill.

 FISCAL IMPACT ON THE STATE :
None.

 EFFECTIVE DATE :
This act shall take effect immediately.

2009-S5734 - Bill Text download pdf

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

                                  5734

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                              June 1, 2009
                               ___________

Introduced  by  Sen.  FOLEY  -- read twice and ordered printed, and when
  printed to be committed to the Committee on Codes

AN ACT to repeal section 160.58 of the criminal procedure  law  relating
  to the conditional sealing of certain criminal records

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

  Section 1. Section 160.58 of the criminal procedure law is REPEALED.
  S 2. This act shall take effect immediately.








 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD14140-01-9

2009-S5734A (ACTIVE) - Details

Current Committee:: Senate Codes
Law Section:: Criminal Procedure Law
Laws Affected:: Amd §160.58, CP L

2009-S5734A (ACTIVE) - Summary

Relates to those entities that can have access to conditionally sealed records.

2009-S5734A (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S5734A

 TITLE OF BILL :
An act to amend the criminal procedure law, in relation to the
conditional sealing of records


 PURPOSE :
To change the conditional sealing of drug offenders criminal records
so as to allow certain employers to have access to prospective
employees unsealed records.

 SUMMARY OF PROVISIONS :
Section 1 of the bill states that records that are conditionally
sealed shall be made available to the defendant, or the defendant's
designated agent. Further a prosecutor, law enforcement agency, or a
court which has responsibility as it relates to the defendant shall
have access to these records. This section also would allow any state
or local office that issues gun licenses to have access to such
records. Further this section would allow any prospective employer of
a police officer or peace officer to have access to such conditionally
sealed records. Importantly this section also would allow any person,
public or private agency that is mandated by law to fingerprint
individuals as part of a background check to have access to such
records. This section continues on to allow prospective employers of
caregivers to have access to these records as well. Also importantly

this section allows the Parole Department when the individual is under
supervision as well as the local probation department which is
supervising the individual to have access as well. Further records
sealed conditionally shall be made available if admissible for use
before a jury, or judge if the individual is called before them as a
witness.

Subdivision 6-a makes it a civil penalty of up to $1,000 to release
any record or information that is sealed to any individual or agency
that is not authorized to receive such information. This section
allows the attorney general or the person who is subject to such
record to bring action. Further when the individual is the prevailing
plaintiff in such civil action the court shall include in the judgment
an award of costs and attorneys fees.

Subdivision 8 is amended to allow for the unsealing of records should
such individual be convicted of any misdemeanor or felony offense.

Section 2 is the effective date.

 JUSTIFICATION :
As part of the 2009-2010 budget a comprehensive Rockefeller Drug Law
reform was enacted. Part of this reform allowed for the sealing of
certain criminal records as it related to drug offenses once the
individual completed their sentence as well as a court ordered
treatment program.  As certain state and local laws mandate that
certain employers {child and elder care workers, elected officials,
judges, school bus drivers, and public school teachers for example)to
conduct criminal history checks this legislation would effectively
make these background checks completely ineffective. This legislation
seeks to allow any employer that is mandated by law to run a
fingerprint check on a prospective employee to have the ability to be
made aware when such prospective employee has been convicted of the
appropriate offenses.

Further both Federal and State law expressly prohibit individuals with
certain convictions from being employed in certain jobs, the
conditional sealing of records now makes it possible for employers to
hire individuals who violate these prohibitions without the employer
being aware of their convictions. Some of the felony convictions that
can now be concealed are sale and possession of unlimited amounts of
cocaine and heroin, commercial burglary, forgery, credit card and auto
theft, and extortion.  Some of the misdemeanor convictions that can be
concealed are possession of heroin, cocaine, methamphetamine, or
crack.

The bill also importantly allows an individual to take action. should
such records be unsealed erroneously by allowing them to bring a civil
action.

Subdivision 6-a is also important in that it relievers pressure on
DCJS AND OCA as it pertains to sealing records. Under current law DCJS
AND OCA would face an administrative nightmare with regard to the
unsealing of records when an individual is arrested or charged with a
crime, changing this provision is necessary to make the
sealing/unsealing of records much more feasible, further this
subdivision keeps our laws consistent with the concept of innocent
until proven guilty.

 LEGISLATIVE HISTORY :
New Bill.

 FISCAL IMPACT ON THE STATE :
None.

 EFFECTIVE DATE :
This act shall take effect immediately and shall be deemed to have
been in full force and effect on the same date as section 3 of part
AAA of chapter 56 of the laws of 2009.

2009-S5734A (ACTIVE) - Bill Text download pdf

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

                                 5734--A

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                              June 1, 2009
                               ___________

Introduced  by  Sen.  FOLEY  -- read twice and ordered printed, and when
  printed to be  committed  to  the  Committee  on  Codes  --  committee
  discharged, bill amended, ordered reprinted as amended and recommitted
  to said committee

AN  ACT  to  amend the criminal procedure law, in relation to the condi-
  tional sealing of records

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

  Section  1.  Subdivisions  6  and  8 of section 160.58 of the criminal
procedure law, as added by section 3 of part AAA of chapter  56  of  the
laws  of 2009, are amended and a new subdivision 6-a is added to read as
follows:
  6. Records sealed pursuant to this subdivision shall be made available
to:  (a) [the defendant or the defendant's designated agent;
  (b) qualified agencies, as defined  in  subdivision  nine  of  section
eight  hundred  thirty-five  of the executive law, and federal and state
law enforcement agencies, when acting within  the  scope  of  their  law
enforcement duties; or
  (c)  any  state or local officer or agency with responsibility for the
issuance of licenses to possess guns, when the person has made  applica-
tion for such a license; or
  (d)  any  prospective 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 employ-
ment 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 afforded an opportunity to make an explanation there-
to.] THE DEFENDANT OR TO SUCH DEFENDANT'S DESIGNATED AGENT; (B) A PROSE-
CUTOR, A LAW ENFORCEMENT AGENCY, OR A COURT WHICH HAS RESPONSIBILITY FOR
CRIMINALLY INVESTIGATING, PROSECUTING, OR  ADJUDICATING  THE  DEFENDANT;

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD14140-02-9

S. 5734--A                          2

(C)  ANY  STATE  OR  LOCAL  OFFICE OR AGENCY WITH RESPONSIBILITY FOR THE
ISSUANCE OF LICENSES TO POSSESS GUNS, WHEN THE DEFENDANT HAS MADE APPLI-
CATION FOR SUCH A LICENSE; (D) ANY  PROSPECTIVE  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  AFFORDED  AN
OPPORTUNITY  TO  MAKE  AN  EXPLANATION THERETO; (E) PERSONS OR PUBLIC OR
PRIVATE AGENCIES WHO ARE MANDATED BY LAW TO FINGERPRINT  INDIVIDUALS  AS
PART  OF A BACKGROUND CHECK; (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; (G) THE NEW
YORK STATE DIVISION OF PAROLE WHEN THE DEFENDANT IS UNDER PAROLE  SUPER-
VISION;  AND  (H)  THE LOCAL PROBATION DEPARTMENT RESPONSIBLE FOR SUPER-
VISION OF THE DEFENDANT.  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.
  6-A.  ANY  PERSON  OR  AGENCY  THAT  KNOWINGLY RELEASES OR PERMITS THE
RELEASE OF ANY RECORD OR INFORMATION THAT IS  SEALED  PURSUANT  TO  THIS
SECTION  TO  ANY  PERSON OR AGENCY NOT AUTHORIZED TO RECEIVE IT SHALL BE
SUBJECT TO A CIVIL PENALTY FOR EACH SUCH VIOLATION OF UP TO ONE THOUSAND
DOLLARS.  SUCH PENALTIES MAY BE RECOVERED IN A CIVIL ACTION  BROUGHT  BY
THE  ATTORNEY GENERAL OR BY THE PERSON WHO IS THE SUBJECT OF SUCH RECORD
OR INFORMATION. WHEN THE PREVAILING PLAINTIFF IN SUCH  CIVIL  ACTION  IS
THE  PERSON  WHO IS THE SUBJECT OF SUCH RECORD OR INFORMATION, THE COURT
SHALL INCLUDE IN THE JUDGMENT AN AWARD OF COSTS AND ATTORNEYS FEES.
  8. If, subsequent to the sealing of records pursuant to this  subdivi-
sion,  the person who is the subject of such records is [arrested for or
formally charged with] CONVICTED OF any misdemeanor or  felony  offense,
such  records  shall  be  unsealed  immediately  and  remain  unsealed[;
provided, however, that if such new misdemeanor or felony arrest results
in a termination in favor of the accused as defined in subdivision three
of section 160.50 of this article or by conviction for  a  non  criminal
offense  as  described  in section 160.55 of this article, such unsealed
records shall be conditionally sealed pursuant to this section].
  S 2. This act shall take effect immediately and  shall  be  deemed  to
have been in full force and effect on the same date as section 3 of part
AAA  of  chapter  56  of  the  laws  of  2009, as amended, takes effect;
provided that any motions made or orders  granted  pursuant  to  section
160.58 of the criminal procedure law prior to the effective date of this
act shall be subject to the provisions of this act.

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Senate Bill S5734A

Sponsored By

Archive: Last Bill Status - In Senate Committee Codes Committee

Actions

Bill Amendments

2009-S5734 - Details

2009-S5734 - Summary

2009-S5734 - Sponsor Memo

2009-S5734 - Bill Text download pdf

2009-S5734A (ACTIVE) - Details

2009-S5734A (ACTIVE) - Summary

2009-S5734A (ACTIVE) - Sponsor Memo

2009-S5734A (ACTIVE) - Bill Text download pdf

Comments

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Senate Bill S5734A

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Sponsored By

Brian X. Foley

Archive: Last Bill Status - In Senate Committee Codes Committee

Actions

Bill Amendments

2009-S5734 - Details

2009-S5734 - Summary

2009-S5734 - Sponsor Memo

2009-S5734 - Bill Text download pdf

2009-S5734A (ACTIVE) - Details

2009-S5734A (ACTIVE) - Summary

2009-S5734A (ACTIVE) - Sponsor Memo

2009-S5734A (ACTIVE) - Bill Text download pdf

Comments