senate Bill S6676

2011-2012 Legislative Session

Relates to unsealing criminal records involving orders of protection

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Archive: Last Bill Status - Passed Senate


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

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Actions

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Mar 29, 2012 referred to codes
delivered to assembly
passed senate
Mar 22, 2012 advanced to third reading
Mar 21, 2012 2nd report cal.
Mar 20, 2012 1st report cal.428
Mar 08, 2012 referred to codes

Votes

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S6676 - Bill Details

Current Committee:
Law Section:
Criminal Procedure Law
Laws Affected:
Amd §160.50, CP L

S6676 - Bill Texts

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Relates to unsealing criminal records involving orders of protection.

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BILL NUMBER:S6676

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

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 of an order of protection where necessary to
prosecute a defendant for violating that order of protection.

This measure is proposed in response to recent cases that have
uncovered a serious issue concerning orders of protection contained in
a sealed file (see People v Marcus A, 28 Misc 3d 667 [Sup Ct, NY
County 2010]); see also Matter of Akieba Mc, 72 AD3d 689 [2d Dept
2010]). When a criminal contempt prosecution is commenced, and the
basis for the charge is that the defendant knowingly violated a lawful
order of a court (see PL §§ 215.50, 215.51 or 215.52), a prosecutor
must obtain a copy of the underlying order of protection alleged to
have been violated. A certified copy of the order is most often used
to replace a misdemeanor complaint with an information (see CPL
170.65), or as evidence before the grand jury in felony contempt
prosecutions. It also is admissible as trial evidence to establish
that the order was issued and in effect at the time of the contempt.
Because in most cases an order of protection is a public document, a
prosecutor simply obtains a certified copy from the clerk of the court
(Judiciary Law §255).

However, where the underlying order of protection has been issued in
connection with a case that has terminated in favor of the defendant,
both the court record and the District Attorney's records are sealed
pursuant to CPL 160.50. Nonetheless, even where the criminal action in
which the order of protection arose is dismissed, there is no bar to
prosecution where a defendant violating the order of protection while
the action was pending. However, once the underlying criminal case is
dismissed and sealed, there is no provision in the Criminal Procedure
Law that allows a court to unseal the order of protection so that a
certified copy of the order defendant is charged with violating may be
obtained.

The Court of Appeals has repeatedly held that the "general
proscription against releasing sealed records and materials (is)
subject only to a few narrow exceptions" (Matter of Katherine B v
Cataldo, 5 NY3d 196, 203 [2005], quoting Matter of Joseph M., 82 NY2d
128, 134 [1993]). Although CPL 160.50(1)(d) sets forth those
exceptions, the Court has limited the unsealing of records by a
District Attorney after commencement of a criminal action to the
"singular circumstance" where a defendant requests an adjournment in
contemplation of dismissal in low level marijuana cases (5 NY3d at
205; CPL 160.50(1)(d)(i). Thus, no matter how viable a contempt
prosecution might otherwise be, a District Attorney's Office is
effectively hamstrung from obtaining an underlying order of protection
that had been issued in a sealed case.


We believe that a court should be permitted to unseal a record to
allow a prosecutor to obtain a copy of an order of protection when
necessary to prosecute a defendant for willful disobedience of a
lawful court mandate. This measure is narrowly tailored to meet this
individualized need and is necessary to protect both victims of
domestic violence and the integrity of the judicial process.

This measure, which would have no meaningful fiscal impact on the
State, would take effect immediately, and shall apply to all criminal
actions commenced on or after such effective date.

LEGISLATIVE HISTORY:
None. New proposal.

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

                                  6676

                            I N  S E N A T E

                              March 8, 2012
                               ___________

Introduced by Sen. SALAND -- (at request of the Office of Court Adminis-
  tration)  --  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 involving orders of protection

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

  Section 1. Subparagraph (i) of  paragraph  (d)  of  subdivision  1  of
section  160.50  of the criminal procedure law, as amended by section 73
of subpart B of part C of chapter 62 of the laws of 2011, is amended  to
read as follows:
  (i)  a prosecutor in any proceeding (A) in which the accused has moved
for an order pursuant to section 170.56 or 210.46 of  this  chapter,  or
(B) WHERE THE RECORDS CONSIST OF AN ORDER OF PROTECTION AND THE PROSECU-
TOR  DEMONSTRATES  TO THE SATISFACTION OF THE COURT THAT THE RECORDS ARE
NECESSARY TO THE PROSECUTION OF THE ACCUSED FOR VIOLATING OR  ATTEMPTING
TO VIOLATE SUBDIVISION THREE OF SECTION 215.50, SECTION 215.51 OR 215.52
OF THE PENAL LAW, OR
  S  2.  This  act shall take effect immediately, and shall apply to all
criminal actions commenced on or after such effective date.





 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD14170-01-2

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