S T A T E   O F   N E W   Y O R K
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                                  7288

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                             April 28, 2011
                               ___________

Introduced by M. of A. O'DONNELL, LENTOL -- (at request of the Office of
  Court  Administration)  --  read once and referred to the Committee on
  Codes

AN ACT to amend the criminal procedure law, in relation to sealing court
  records involving convictions for certain petty offenses

  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 160.57 to read as follows:
S 160.57 APPLICATION FOR SEALING OF COURT RECORDS FOLLOWING  TERMINATION
           OF  CRIMINAL ACTION OR PROCEEDING BY CONVICTION FOR NONCRIMI-
           NAL OFFENSE.
  1. A PERSON CONVICTED OF A TRAFFIC INFRACTION OR  A  VIOLATION,  OTHER
THAN  LOITERING  AS  DESCRIBED  IN  PARAGRAPH  (D) OF SUBDIVISION ONE OF
SECTION 160.10 OF THIS ARTICLE OR OPERATING A MOTOR VEHICLE WHILE ABILI-
TY IMPAIRED AS DESCRIBED IN SUBDIVISION ONE OF  SECTION  ELEVEN  HUNDRED
NINETY-TWO  OF  THE  VEHICLE  AND TRAFFIC LAW, AND WHOSE CASE WAS SEALED
PURSUANT TO SECTION 160.55 OF THIS ARTICLE, MAY MOVE IN ACCORDANCE  WITH
THE  PROVISIONS OF THIS SECTION FOR AN ORDER SEALING THE COURT RECORD OF
SUCH ACTION OR PROCEEDING. IN THE ABSENCE OF AN EARLIER APPLICATION  FOR
AN  ORDER TO SEAL, THE RECORD OF A CONVICTION OF A TRAFFIC INFRACTION OR
A VIOLATION PURSUANT TO THIS SUBDIVISION SHALL BE  AUTOMATICALLY  SEALED
BY  OPERATION OF LAW THIRTY-SIX MONTHS FROM THE DATE OF SENTENCE, UNLESS
THE PEOPLE FILE A NOTICE OF OPPOSITION UPON NOTICE TO THE DEFENDANT,  NO
EARLIER  THAN  NINETY  DAYS  AND  NO LATER THAN TWENTY DAYS PRIOR TO THE
EXPIRATION OF THIRTY-SIX MONTHS.
  2. A MOTION TO SEAL MAY BE FILED IN WRITING WITH  THE  LOCAL  CRIMINAL
COURT  OR  SUPERIOR  COURT IN WHICH THE CONVICTION AND SENTENCE OCCURRED
NOT EARLIER THAN TWELVE MONTHS FOLLOWING  THE  DATE  OF  SENTENCE.  SUCH
MOTION  MUST  BE  MADE  UPON  NOT  LESS  THAN TWENTY DAYS' NOTICE TO THE
DISTRICT ATTORNEY.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD11070-01-1
              

A. 7288                             2

  3. UPON MOTION TO SEAL THE COURT  RECORD  PURSUANT  TO  THIS  SECTION,
WHERE  BOTH  PARTIES  CONSENT  TO SUCH SEALING, THE COURT SHALL ENTER AN
ORDER SEALING THE COURT RECORD UNLESS THE COURT DETERMINES THAT  SEALING
PURSUANT  TO  THIS  SECTION  IS  NOT  IN  THE  INTERESTS OF JUSTICE. FOR
PURPOSES  OF  THIS SUBDIVISION, A PARTY WHO IS GIVEN WRITTEN NOTICE OF A
MOTION TO SEAL PURSUANT TO THIS SECTION SHALL BE DEEMED  TO  CONSENT  TO
SUCH  APPLICATION  UNLESS, PRIOR TO THE RETURN DATE OF SUCH MOTION, SUCH
PARTY FILES A NOTICE OF OPPOSITION THERETO WITH THE COURT.
  4. WHERE THE PEOPLE FILE A NOTICE OF OPPOSITION PRIOR  TO  THE  RETURN
DATE OF A MOTION TO SEAL OR THE EXPIRATION OF THE THIRTY-SIX MONTH PERI-
OD  REFERRED  TO  IN  SUBDIVISION  ONE  OF THIS SECTION, THE COURT SHALL
CONDUCT A HEARING ON THE RETURN DATE OF  THE  MOTION  IN  WHICH  IT  MAY
RECEIVE  ANY  RELEVANT  EVIDENCE.  UPON  REQUEST, THE COURT MUST GRANT A
REASONABLE ADJOURNMENT TO EITHER PARTY TO ENABLE SUCH PARTY  TO  PREPARE
FOR  THE  HEARING.  FOLLOWING SUCH HEARING, AN ORDER TO SEAL PURSUANT TO
THIS SECTION SHALL BE GRANTED UNLESS THE DISTRICT ATTORNEY  DEMONSTRATES
TO  THE  SATISFACTION OF THE COURT THAT THE INTERESTS OF JUSTICE REQUIRE
OTHERWISE. WHERE THE COURT HAS DETERMINED THAT SEALING PURSUANT TO  THIS
SECTION  IS  NOT  IN THE INTERESTS OF JUSTICE, THE COURT SHALL PUT FORTH
ITS REASONS ON THE RECORD.
  5. UPON ENTRY OF AN ORDER TO SEAL, THE COURT RECORD OF SUCH ACTION  OR
PROCEEDING SHALL BE SEALED AND THE CLERK OF THE COURT WHEREIN SUCH CRIM-
INAL  ACTION  OR  PROCEEDING WAS TERMINATED SHALL IMMEDIATELY NOTIFY THE
COMMISSIONER OF THE DIVISION OF CRIMINAL JUSTICE SERVICES AND THE  HEADS
OF ALL APPROPRIATE POLICE DEPARTMENTS AND OTHER LAW ENFORCEMENT AGENCIES
THAT THE ACTION SHALL BE SEALED AS IF IT HAS BEEN TERMINATED IN FAVOR OF
THE  ACCUSED  AND  THAT THE RECORD OF SUCH ACTION OR PROCEEDING SHALL BE
SEALED.
  6. UPON THE ENTRY OF AN ORDER TO SEAL OR THE EXPIRATION OF  THIRTY-SIX
MONTHS  FROM  THE DATE OF SENTENCE WITHOUT OPPOSITION BY THE PEOPLE, ALL
OFFICIAL RECORDS AND PAPERS, INCLUDING JUDGMENTS AND ORDERS OF  A  COURT
BUT  NOT  INCLUDING PUBLISHED COURT DECISIONS OR OPINIONS OR RECORDS AND
BRIEFS ON APPEAL, RELATING TO THE ARREST OR PROSECUTION,  INCLUDING  ALL
DUPLICATES  AND  COPIES  THEREOF, ON FILE WITH ANY COURT SHALL BE SEALED
AND NOT MADE AVAILABLE TO ANY PERSON OR PUBLIC OR PRIVATE AGENCY.
  7. UPON THE GRANTING OF A MOTION TO SEAL PURSUANT TO THIS SECTION,  OR
UPON THE EXPIRATION OF THIRTY-SIX MONTHS FROM THE DATE OF SENTENCE WITH-
OUT  OPPOSITION,  SUCH  RECORDS  SHALL  BE  MADE AVAILABLE TO THE PERSON
ACCUSED OR TO SUCH PERSON'S DESIGNATED AGENT, AND SHALL BE  MADE  AVAIL-
ABLE TO:
  (A)  A PROSECUTOR IN ANY PROCEEDING IN WHICH THE ACCUSED HAS MOVED FOR
AN ORDER PURSUANT TO SECTION 170.56 OR 210.46 OF THIS PART; OR
  (B) 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
  (C)  ANY  STATE OR LOCAL OFFICER OR AGENCY WITH RESPONSIBILITY FOR THE
ISSUANCE OF LICENSES TO POSSESS GUNS, WHEN THE ACCUSED HAS MADE APPLICA-
TION FOR SUCH A LICENSE; OR
  (D) THE NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY  SUPER-
VISION  WHEN  THE ACCUSED IS ON PAROLE SUPERVISION AS A RESULT OF CONDI-
TIONAL 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 SUPERVISION; OR
  (E) 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-

A. 7288                             3

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; OR
  (F)  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
  (G) A POLICE AGENCY, PROBATION DEPARTMENT, SHERIFF'S OFFICE,  DISTRICT
ATTORNEY'S  OFFICE,  DEPARTMENT  OF  CORRECTION  OF ANY MUNICIPALITY AND
PAROLE DEPARTMENT OR THE COURT, UPON ARREST OF THE INDIVIDUAL AND  WHERE
THE  SEALED  RECORDS  ARE  FOR  CONVICTION  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
SECTION 530.11 OF THIS CHAPTER, AND DETERMINED PURSUANT  TO  SUBDIVISION
EIGHT-A OF SECTION 170.10 OF THIS TITLE.
  8.  THE  RECORD  OF  A CONVICTION THAT OCCURRED PRIOR TO THE EFFECTIVE
DATE OF THIS SECTION SHALL  NOT  BE  AUTOMATICALLY  SEALED  PURSUANT  TO
SUBDIVISION  ONE OF THIS SECTION. HOWEVER, A PERSON CONVICTED OF A TRAF-
FIC INFRACTION OR A VIOLATION PRIOR TO SUCH  EFFECTIVE  DATE,  MAY  UPON
WRITTEN  MOTION  APPLY  TO THE LOCAL CRIMINAL COURT OR SUPERIOR COURT IN
WHICH THE CONVICTION AND  SENTENCE  OCCURRED  NOT  EARLIER  THAN  TWELVE
MONTHS FOLLOWING THE DATE OF THE SENTENCE, AND UPON NOT LESS THAN TWENTY
DAYS'  NOTICE  TO  THE  DISTRICT ATTORNEY, FOR AN ORDER GRANTING TO SUCH
PERSON THE RELIEF SET FORTH IN SUBDIVISION ONE OF THIS SECTION, AND SUCH
ORDER SHALL BE GRANTED UNLESS THE DISTRICT ATTORNEY DEMONSTRATES TO  THE
SATISFACTION  OF THE COURTS THAT THE INTERESTS OF JUSTICE REQUIRE OTHER-
WISE.
  9. THE CHIEF ADMINISTRATOR OF THE COURTS,  IN  CONSULTATION  WITH  THE
DIRECTOR  OF  THE  DIVISION  OF  CRIMINAL JUSTICE SERVICES AND REPRESEN-
TATIVES OF APPROPRIATE PROSECUTORIAL AND CRIMINAL DEFENSE  ORGANIZATIONS
IN  THE  STATE,  SHALL ADOPT FORMS FOR THE MOTION TO SEAL, THE NOTICE OF
OPPOSITION TO SEALING, AND THE ORDER GRANTING SEALING PURSUANT  TO  THIS
SECTION.
  S 2. Section 160.60 of the criminal procedure law, as amended by chap-
ter 877 of the laws of 1976, is amended to read as follows:
S 160.60 Effect  of  termination  of  criminal  actions  in favor of the
           accused OR SEALING OF A COURT  RECORD  OF  CONVICTION  FOR  A
           NONCRIMINAL OFFENSE.
  Upon  the  termination  of  a  criminal action or proceeding against a
person in favor of such person, as defined in subdivision [two] THREE of
section 160.50 of this  [chapter]  ARTICLE,  OR  THE  SEALING  OF  COURT
RECORDS BY ORDER OF COURT OR OPERATION OF LAW PURSUANT TO SECTION 160.57
OF  THIS  ARTICLE,  the arrest and prosecution shall be deemed a nullity
and the accused shall be restored,  in  contemplation  of  law,  to  the
status he OR SHE occupied before the arrest and prosecution.  The arrest
or  prosecution shall not operate as a disqualification of any person so
accused to pursue or engage in any lawful activity, occupation,  profes-
sion,  or  calling.   Except where specifically required or permitted by
statute or upon specific authorization of  a  superior  court,  no  such
person shall be required to divulge information pertaining to the arrest
or prosecution.
  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.