BILL NUMBER:S1395

TITLE  OF  BILL:   An act to amend the executive law and the judiciary
law, in relation to undisposed cases

PURPOSE:   This bill  will  require  DCJS  and  DCA  to  refrain  from
including  undisposed  case  information  on  criminal  history record
reports except for law enforcement and other specified purposes.

SUMMARY OF PROVISIONS:

Section 1 of the bill adds a new section 845-c to the Executive Law to
prohibit DCJS from including undisposed case information  on  criminal
history  record reports (i.e., rapsheets) where the report is produced
for a non-law enforcement or non-criminal justice  purpose.  The  bill
defines  "undisposed  case"  as  a criminal action or proceeding or an
arrest incident that  appears  on  an  individual's  criminal  history
record  for  which  no conviction, sentence or other final disposition
(other than an apparently unexecuted bench warrant) appears  and  with
respect  to  which  no  entry  has  been made on the DCJS record for a
period of at least five years. The prohibition also would not apply to
records produced by DCJS solely for bona  fide  research  or  internal
record keeping purposes.

Section 2 of the bill establishes a corresponding requirement for DCA.
It  adds  a new paragraph (s) to subdivision two of section 212 of the
              

Judiciary Law to require DCA  to  refrain  from  reporting  undisposed
cases  on criminal history reports it produces except where the report
is  prepared  for  internal  record  keeping  or  bona  fide  research
purposes.

Section 3 of the bill provides that the act shall take effect 180 days
after  it shall have become a law, and further provides that, prior to
such effective date, DCJS in consultation  with  DCA  shall  undertake
measures  to update its criminal history records with respect to cases
that have no final disposition reported.

EXISTING LAW:   DCJS is the  state  repository  for  criminal  history
records   and   is   permitted   or  required  under  law  in  certain
circumstances to search  its  records  and  produce  a  report  on  an
individual's  criminal history record (i.e., a "rapsheet"). Similarly,
DCA is authorized under law to search its criminal court case  records
and  produce  a criminal history record report on the individual whose
record is searched.   Under Criminal Procedure Law  §  160.50  records
pertaining  to  criminal actions that have been terminated in favor of
the accused are to be sealed and, subject to certain  exceptions,  are
not to be released by DCJS or DCA.

These  include  cases  that,  following  the  transmission  of  arrest
fingerprints to DCJS,  prosecutors  elect  not  to  prosecute  (CPL
160.5(3)  (i))  and arrests that the police elect not to pursue (CPL
160.50(3)(j)).

JUSTIFICATION:  Although the law provides for the sealing  of  certain
records,   in  some  cases,  administrative  failures  occur,  leaving
information about cases that have ended in a person's favor,  or  have


been  filed  in  court  but  never  brought  to any final disposition,
unsealed on the person's permanent criminal history record  maintained
by  DCJS.  Attempts  to  correct these errors and eliminate undisposed
case  references often prove unsuccessful because no information about
the cases can be found,  either  because  the  parties  involved  have
destroyed their records, because no records have been generated due to
the preliminary nature of the case or because the case in question has
been  deemed dismissed by another court as a result of action taken in
an entirely separate  case.  Examples  of  this  include  cases  where
preliminary  arrest  information  but no other information, not even a
docket number, appears on the criminal history record. The absence  of
a  docket  number  on  a  rap  sheet  where an arrest is indicated may
signify that, after the submission of arrest fingerprints to DCJS, the
prosecutor has elected not to prosecute the case, or the  police  have
elected not to pursue the arrest. Other examples include cases where a
court  docket  number  appears  but  no  further action on the case is
reflected. In cases actively moving through the court system,  actions
taken  in  the  case  arraignments,  transfers, removals, indictments,
bench warrants - usually  appear  on  the  person's  criminal  history
record.  When  an arrest incident appears, or a case has been docketed
but no action has been taken for  a  period  of  five  years,  and  no
warrant  has  been  issued,  the  case  should likely have either been
dismissed (as statutory speedy trial requirements would  dictate  that
trial  or  some other action take place within that time) or otherwise
disposed of.

In an age where  the  criminal  history  background  check  is  almost
universal,  New  York's  sealing  laws  act as a guard against illegal
workplace discrimination by preventing the inappropriate disclosure or
use by employers or licensing agencies  of  records  of,  arrest  that
resulted  either  in  a  violation  (non-criminal)  conviction or were
terminated in a person's favor. However, the  sealing  laws  are  only
effective  if  the  various  entities  in  the criminal justice system
effectively communicate with each other.

According to the Criminal Procedural Law, the  arresting  agency,  the
district   attorney,  the  cleric  of  the  court,  and  DCA  are  all
responsible for reporting to DCJS that certain criminal actions  ended
in  a  person's  favor. Administrative failures do occur, however, and
sometimes these agencies fail to update DCJS as required. Since  there
is  no  current  system  for  ensuring that agencies update DCJS, many
records at DCJS remain inaccurate  for  an  extended  period  of  time
without anyone's knowledge. As DCJS cannot currently act to correct or
complete  the  records  without  information from the relevant agency,
these inaccuracies, in effect, become permanent once enough  time  has
passed  for the criminal justice agency involved to be able to destroy
the original record according to its own  record  retention  schedule.
In  situations where the case has been terminated in a person's favor,
the original record may be destroyed  after  only  six  years  by  the
courts  and DCA. Other agencies, including the police and the District
Attorneys' Offices, have their own record retention  schedules.  As  a
result,  people  with permanent inaccuracies on their rap sheet are in
limbo: they cannot contest inaccurate  or  incomplete  information  on
their   rap   sheet  or  criminal  history  record  if  the  necessary
correctives (the original records) have been purged or  are  otherwise
unavailable  or incomplete. Such people also lose the protections they
may be entitled to under New York State sealing laws and  the  Federal


and  New  York  State  Fair  Credit  Reporting  Acts.  The  failure in
communication among the various criminal justice agencies  has  caused
countless   individuals  to  lose  employment,  benefits  and  housing
opportunities.

To  remedy  the problem, this measure would prohibit DCJS and DCA from
including "undisposed case" information, as defined by  the  bill,  in
any report of a criminal history search conducted by the agency except
where  the  report  is produced by DCJS for a "qualified agency" (or a
federal or state  law  enforcement  agency)  for  a  criminal  justice
purpose,  or  by  DCJS  or  DCA  for  a bona fide research or internal
recordkeeping purpose. In so doing, the bill will effectively  address
the  administrative  failures  described  above and will help many New
Yorkers lead productive, law-abiding lives.

LEGISLATIVE HISTORY:
A.8222 was reported and referred to rules in 2009 and was referred  to
codes in 2010. New bill in the Senate.
2011-2012: S.5357 - Died in Committee

FISCAL IMPLICATIONS: To be determined.

EFFECTIVE DATE:  180 days after it shall have become a law.