senate Bill S4471

2011-2012 Legislative Session

Relates to unsealing criminal records

download bill text pdf

Sponsored By

Archive: Last Bill Status - In Committee


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor

do you support this bill?

Actions

view actions (2)
Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jan 04, 2012 referred to codes
Apr 06, 2011 referred to codes

S4471 - Bill Details

See Assembly Version of this Bill:
A7389
Current Committee:
Senate Codes
Law Section:
Criminal Procedure Law
Laws Affected:
Amd ยงยง160.50 & 160.55, CP L

S4471 - Bill Texts

view summary

Relates to unsealing criminal records in criminal actions terminated in favor of the accused or by conviction for a noncriminal offense; allows disclosure of such records to a party in a criminal proceeding if, on notice to the adverse party and the subject of the records, the moving party demonstrates that justice so requires.

view sponsor memo
BILL NUMBER:S4471

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

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of her
Advisory Committee on Criminal Law and Procedure.

This measure would amend the Criminal Procedure Law to authorize a
court to unseal records, where justice requires it, on notice both
to the adverse party and the subject of the records.

In 2003, political demonstrators in New York City handcuffed
themselves in a human chain across Fifth Avenue, creating a huge
traffic disruption. The demonstrators were arrested and later found
guilty after a jury trial of obstructing governmental administration
in the second degree and disorderly conduct. In advance of the
sentencing, the trial court asked the People to provide the prior
criminal records of the defendants, and, toward that end, the
prosecutor asked the court to unseal various records that contained
information regarding the petitioner's previous political
demonstration arrests.
The records the court unsealed related to violation convictions and
procedural dismissals;
none were for acquittals or dismissals on the merits. The defendants
brought an Article 78 proceeding to challenge the court's unsealing
order, and, on appeal from the Appellate Division, the Court of
Appeals vacated the unsealing order (see Katherine B. v Cataldo, 5
NY3d 196 [2005]). The Court held that CPL 160.50 was intended to serve
as a broad sealing provision subject only to a few statutory
exceptions. In a narrow and somewhat cramped reading of those
exceptions, the Court found no provision which would allow a
prosecutor access to sealed records after the commencement of a
proceeding. The closest CPL Article 160 comes is in the provision for
making sealed records available to "a law
enforcement agency upon ex parte motion in any superior Court, if such
agency demonstrates to the satisfaction of the court that justice
requires that such records be made available to it" (CPL
160.50(1)(d)(ii); CPL 160.55(1)(d)(ii)). The Court, however, limited
this exception to the unsealing of records for "investigatory
purposes," and suggested that the "investigatory purposes" exception
ceases upon commencement of the criminal proceeding. The Court thus
limited prosecutorial access to sealed records after commencement to
the "singular circumstance" where a defendant requests an ACD in low
level marijuana cases (Katherine B., 5 NY3d at 205; CPL
160.50(1)(d)(i)).

This Office believes that Katherine B. has inappropriately narrowed
the situations where the Court may unseal records. There are numerous
legitimate times when a court should have the authority to unseal a
record in the interest of justice. However, recognizing that an ex
parte application to unseal may lead to unwarranted unsealing orders,
this measure provides that an unsealing order must be made on notice


to both the adversary and the subject of the records. This will
insure that the court is fully briefed on all the issues surrounding
the application and will, in contested cases, provide a record that
can be adequately reviewed by an appellate court.

This measure, which would have no meaningful fiscal impact on the
State, would take effect on the first day of November next succeeding
the date on which it shall have become a law.

2011 LEGISLATIVE HISTORY:
None. New proposal.

view full text
download pdf
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  4471

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                              April 6, 2011
                               ___________

Introduced by Sen. NOZZOLIO -- (at request of the Office of Court Admin-
  istration)  --  read twice and ordered printed, and when printed to be
  committed to the Committee on Codes

AN ACT to amend the criminal procedure law,  in  relation  to  unsealing
  criminal records

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

  Section 1. Paragraph (d) of subdivision 1 of  section  160.50  of  the
criminal  procedure  law, as amended by chapter 169 of the laws of 1994,
is amended to read as follows:
  (d) such records shall be made available to the person accused  or  to
such  person's  designated  agent,  and shall be made available to (i) a
prosecutor in any proceeding in which the accused has moved for an order
pursuant to section 170.56 or 210.46 of this  chapter,  or  (ii)  a  law
enforcement  agency  upon ex parte motion in any superior court, if such
agency demonstrates to  the  satisfaction  of  the  court  that  justice
requires  that  such records be made available to it, or (iii) any state
or local officer or agency  with  responsibility  for  the  issuance  of
licenses to possess guns, when the accused has made application for such
a  license,  or  (iv)  the  New  York  state division of parole when the
accused is on parole supervision as a result of conditional release or a
parole release granted by the New York state board of  parole,  and  the
arrest  which  is the subject of the inquiry is one which occurred while
the accused was under such supervision or (v) 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  chap-
ter, 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,  or  (vi) the probation

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09806-01-1

S. 4471                             2

department responsible for supervision of the accused  when  the  arrest
which  is  the  subject  of  the inquiry is one which occurred while the
accused was under such supervision, OR  (VII)  A  PARTY  IN  A  CRIMINAL
PROCEEDING  IF,  NO  NOTICE  TO THE ADVERSE PARTY AND THE SUBJECT OF THE
RECORDS, THE MOVING PARTY DEMONSTRATES TO THE SATISFACTION OF THE  COURT
THAT  JUSTICE  REQUIRES THAT THE RECORDS BE MADE AVAILABLE TO SUCH PARTY
IN CONNECTION WITH THE CRIMINAL PROCEEDING; and
  S 2. Paragraph (d) of subdivision 1 of section 160.55 of the  criminal
procedure law, as amended by chapter 476 of the laws of 2009, is amended
to read as follows:
  (d) the records referred to in paragraph (c) of this subdivision shall
be  made  available to the person accused or to such person's designated
agent, and shall be made available to (i) a prosecutor in any proceeding
in which the accused has moved for an order pursuant to  section  170.56
or  210.46  of  this  chapter,  or (ii) a law enforcement agency upon ex
parte motion in any superior court, if such agency demonstrates  to  the
satisfaction  of  the  court  that justice requires that such records be
made available to it, or (iii) any state or local officer or agency with
responsibility for the issuance of licenses to possess  guns,  when  the
accused  has  made  application for such a license, or (iv) the New York
state division of parole when the accused is under parole supervision as
a result of conditional release or parole release  granted  by  the  New
York  state  board  of parole and the arrest which is the subject of the
inquiry is one which occurred while the accused was  under  such  super-
vision,  or  (v) the probation department responsible for supervision of
the accused when the arrest which is the subject of the inquiry  is  one
which  occurred  while the accused was under such supervision, or (vi) a
police agency, probation department, sheriff's office,  district  attor-
ney's  office,  department  of correction of any municipality and parole
department, for law enforcement purposes, upon arrest  in  instances  in
which  the  individual  stands  convicted  of  harassment  in the second
degree, as defined in section 240.26 of the penal law, committed against
a member of the same family or household as the defendant, as defined in
subdivision one of section 530.11 of this chapter, and determined pursu-
ant to subdivision eight-a of section 170.10 of this title, OR  (VII)  A
PARTY  IN  A  CRIMINAL PROCEEDING IF, ON NOTICE TO THE ADVERSE PARTY AND
THE SUBJECT OF THE RECORDS, THE MOVING PARTY DEMONSTRATES TO THE  SATIS-
FACTION  OF  THE  COURT  THAT  JUSTICE REQUIRES THAT THE RECORDS BE MADE
AVAILABLE TO SUCH PARTY IN CONNECTION WITH THE CRIMINAL PROCEEDING; and
  S 3. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.

Comments

Open Legislation comments facilitate discussion of New York State legislation. All comments are subject to moderation. Comments deemed off-topic, commercial, campaign-related, self-promotional; or that contain profanity or hate speech; or that link to sites outside of the nysenate.gov domain are not permitted, and will not be published. Comment moderation is generally performed Monday through Friday.

By contributing or voting you agree to the Terms of Participation and verify you are over 13.