S T A T E   O F   N E W   Y O R K
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                                  5299

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                            February 15, 2011
                               ___________

Introduced by M. of A. WRIGHT -- read once and referred to the Committee
  on Codes

AN  ACT  to  amend the criminal procedure law, the executive law and the
  general business law, in relation to theft of identity

  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 PETITION FOR DETERMINATION OF FACTUAL INNOCENCE.
  1. ANY PERSON WHOSE NAME OR OTHER IDENTIFYING  INFORMATION  WAS  USED,
WITHOUT  CONSENT  OR AUTHORIZATION, BY ANOTHER PERSON WHO WAS CHARGED OR
ARRESTED USING SUCH NAME OR  IDENTIFICATION  MAY,  WITH  NOTICE  TO  THE
OFFICE  OF  THE  PROSECUTOR,  FILE  A  PETITION IN THE APPROPRIATE COURT
REQUESTING A DETERMINATION OF FACTUAL INNOCENCE. IF THE COURT FINDS THAT
THERE IS NO REASONABLE CAUSE TO BELIEVE THAT THE  PERSON  COMMITTED  THE
OFFENSE  WITH WHICH THE PERSON'S IDENTITY HAS BEEN ASSOCIATED, THE COURT
SHALL ISSUE AN ORDER CERTIFYING THE PERSON'S FACTUAL INNOCENCE.
  2. WHEN A COURT FINDS A PERSON FACTUALLY INNOCENT PURSUANT TO SUBDIVI-
SION ONE OF THIS SECTION, THE COURT SHALL ORDER THE  PERSON'S  NAME  AND
OTHER  IDENTIFYING INFORMATION CONTAINED IN THE COURT RECORDS BE REMOVED
AND THE RECORDS LABELED TO SHOW THAT THE INFORMATION IS NOT ACCURATE AND
DOES NOT REFLECT THE PERPETRATOR'S IDENTITY DUE TO IDENTITY  THEFT.  THE
COURT  SHALL  ALSO ORDER EXPUNGEMENT OF THE ARREST INFORMATION OTHERWISE
PERMITTED BY LAW.
  3. A COURT MAY AT ANY TIME VACATE THE DETERMINATION OF  FACTUAL  INNO-
CENCE  IF THE PETITION, OR INFORMATION SUBMITTED IN SUPPORT OF THE PETI-
TION, CONTAINS A MATERIAL  MISREPRESENTATION  OR  FRAUD.  IF  THE  COURT
VACATES  THE  DETERMINATION,  AN  ORDER  SHALL BE ENTERED RESCINDING ANY
ORDERS MADE PURSUANT TO SUBDIVISION TWO OF THIS SECTION.
  S 2. Article 7 of the executive law is amended by adding a new section
171 to read as follows:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD03100-01-1
              

A. 5299                             2

  S 171. IDENTITY THEFT PASSPORT. 1. THE ATTORNEY GENERAL SHALL ISSUE AN
IDENTITY THEFT PASSPORT TO A PERSON WHO CLAIMS TO BE A VICTIM OF IDENTI-
TY THEFT PURSUANT TO ARTICLE ONE HUNDRED NINETY OF THE  PENAL  LAW,  AND
WHO PROVIDES TO THE ATTORNEY GENERAL:
  (A)  A  CERTIFIED  COPY  OF A COURT ORDER OBTAINED PURSUANT TO SECTION
160.65 OF THE CRIMINAL PROCEDURE LAW, IF APPLICABLE;
  (B) A FULL SET OF FINGERPRINTS;
  (C) A DRIVER'S LICENSE OR OTHER GOVERNMENT  ISSUED  IDENTIFICATION  OR
RECORD; AND
  (D) ANY OTHER INFORMATION AS REQUIRED BY THE ATTORNEY GENERAL.
  2.  AN  IDENTITY THEFT PASSPORT SHALL STATE THE BASIS FOR ITS ISSUANCE
AND SHALL BE ACCEPTED AS EVIDENCE OF IDENTITY BY LAW  ENFORCEMENT  OFFI-
CERS AND OTHERS WHO MAY CHALLENGE THE PERSON'S IDENTITY.
  3.  WHEN  AN  IDENTITY  THEFT PASSPORT IS ISSUED, THE ATTORNEY GENERAL
SHALL TRANSMIT A RECORD OF THE ISSUANCE TO THE DEPARTMENT OF MOTOR VEHI-
CLES. THE DEPARTMENT OF MOTOR VEHICLES SHALL NOTE ON THE PERSON'S DRIVER
RECORD THAT AN IDENTITY THEFT PASSPORT HAS BEEN ISSUED.
  4. THE ATTORNEY GENERAL SHALL MAINTAIN A DATA BASE OF  IDENTITY  THEFT
VICTIMS  WHO  HAVE  REPORTED  TO  A  LAW ENFORCEMENT AGENCY OR HAVE BEEN
ISSUED AN IDENTITY THEFT PASSPORT.  THE  ATTORNEY  GENERAL  MAY  PROVIDE
ACCESS  TO  THE  DATA BASE TO CRIMINAL JUSTICE AGENCIES AND TO THOSE WHO
HAVE BEEN ISSUED AN IDENTITY THEFT  PASSPORT  AND  TO  THEIR  AUTHORIZED
REPRESENTATIVES.
  5.  THE  ATTORNEY  GENERAL  SHALL KEEP ON FILE EACH APPLICATION FOR AN
IDENTITY THEFT PASSPORT AND EACH POLICE REPORT OF IDENTITY THEFT SUBMIT-
TED TO THE ATTORNEY GENERAL BY A LAW ENFORCEMENT AGENCY.
  6. THE ATTORNEY GENERAL SHALL PREPARE  AND  DISTRIBUTE  TO  LOCAL  LAW
ENFORCEMENT  AGENCIES  AND  TO  THE GENERAL PUBLIC AN INFORMATION PACKET
THAT INCLUDES INFORMATION ON HOW TO PREVENT AND STOP IDENTITY THEFT.
  S 3. Section 380-u of the general business law, as relettered by chap-
ter 63 of the laws of 2006, is relettered 380-v and a new section  380-u
is added to read as follows:
  S  380-U.  IDENTITY THEFT CREDIT REPORT. 1. IF A PERSON SUBMITS A COPY
OF A POLICE REPORT INDICATING IDENTITY THEFT OR AN IDENTITY THEFT  PASS-
PORT TO A CONSUMER REPORTING AGENCY, THE AGENCY SHALL WITHIN THIRTY DAYS
BLOCK  THE  REPORTING OF ANY INFORMATION THAT THE PERSON ALLEGES APPEARS
ON HIS OR HER CREDIT REPORT AS A RESULT OF A VIOLATION  OF  ARTICLE  ONE
HUNDRED NINETY OF THE PENAL LAW.
  2.  A  CONSUMER REPORTING AGENCY MAY DECLINE TO BLOCK OR MAY RESCIND A
BLOCK OF A PERSON'S INFORMATION IF, IN THE EXERCISE OF  GOOD  FAITH  AND
JUDGMENT, THE CONSUMER REPORTING AGENCY BELIEVES THAT:
  (A)  THE INFORMATION WAS BLOCKED DUE TO A MISREPRESENTATION OF A MATE-
RIAL FACT BY THE PERSON;
  (B) THE INFORMATION WAS BLOCKED DUE TO  FRAUD,  IN  WHICH  THE  PERSON
PARTICIPATED  OR  OF  WHICH  THE PERSON HAD KNOWLEDGE, AND WHICH MAY FOR
PURPOSES OF THIS SECTION BE DEMONSTRATED BY CIRCUMSTANTIAL EVIDENCE;
  (C) THE PERSON AGREES THAT PORTIONS OF THE BLOCKED INFORMATION OR  ALL
OF IT WERE BLOCKED IN ERROR;
  (D)  THE PERSON KNOWINGLY OBTAINED OR SHOULD HAVE KNOWN THAT HE OR SHE
OBTAINED POSSESSION OF GOODS, SERVICES OR  MONEY  AS  A  RESULT  OF  THE
BLOCKED TRANSACTION OR TRANSACTIONS; OR
  (E)  THE  CONSUMER REPORTING AGENCY, IN THE EXERCISE OF GOOD FAITH AND
REASONABLE JUDGMENT, HAS SUBSTANTIAL REASON BASED ON  SPECIFIC,  VERIFI-
ABLE FACTS TO DOUBT THE AUTHENTICITY OF THE ALLEGED VIOLATION OF ARTICLE
ONE HUNDRED NINETY OF THE PENAL LAW.

A. 5299                             3

  3.  IF  BLOCKED INFORMATION IS UNBLOCKED PURSUANT TO THIS SECTION, THE
PERSON SHALL BE NOTIFIED IN THE SAME MANNER AS CONSUMERS ARE NOTIFIED OF
THE REINSERTION OF INFORMATION  PURSUANT  TO  THE  FEDERAL  FAIR  CREDIT
REPORTING  ACT,  15  U.S.C.  168LI,  AS AMENDED, OR WITHIN FIVE BUSINESS
DAYS, WHICHEVER IS LATER.
  4.  A  CONSUMER  REPORTING  AGENCY SHALL DELETE FROM A PERSON'S CREDIT
REPORT INQUIRIES FOR CREDIT REPORTS BASED UPON CREDIT REQUESTS THAT  THE
CONSUMER  REPORTING  AGENCY  VERIFIES  WERE  INITIATED  AS A RESULT OF A
VIOLATION OF ARTICLE ONE HUNDRED NINETY OF THE PENAL LAW.
  S 4. This act shall take effect on the sixtieth  day  after  it  shall
have become a law.