Senate Bill S8208A

                            
                    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.