senate Bill S1395

2013-2014 Legislative Session

Relates to undisposed cases

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Archive: Last Bill Status - In Committee


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

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jan 08, 2014 referred to finance
Jan 09, 2013 referred to finance

Co-Sponsors

S1395 - Bill Details

See Assembly Version of this Bill:
A3381
Current Committee:
Law Section:
Executive Law
Laws Affected:
Add §845-c, Exec L; amd §212, Judy L
Versions Introduced in Previous Legislative Sessions:
2011-2012: S5357, A6471A
2009-2010: A8222

S1395 - Bill Texts

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Provides that when the division of criminal justice services conducts a search of it's criminal history records and returns a report thereon, all references to undisposed cases shall be excluded.

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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.

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

                                  1395

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 9, 2013
                               ___________

Introduced  by  Sens.  MONTGOMERY,  HASSELL-THOMPSON  --  read twice and
  ordered printed, and when printed to be committed to the Committee  on
  Finance

AN  ACT to amend the executive law and the judiciary law, in relation to
  undisposed cases

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

  Section  1. The executive law is amended by adding a new section 845-c
to read as follows:
  S 845-C. CRIMINAL HISTORY RECORD SEARCHES; UNDISPOSED CASES. 1.  WHEN,
PURSUANT  TO  STATUTE  OR  THE REGULATIONS OF THE DIVISION, THE DIVISION
CONDUCTS A SEARCH OF ITS CRIMINAL HISTORY RECORDS AND RETURNS  A  REPORT
THEREON,  ALL  REFERENCES TO UNDISPOSED CASES CONTAINED IN SUCH CRIMINAL
HISTORY RECORD SHALL BE EXCLUDED FROM SUCH REPORT.
  2. FOR PURPOSES OF THIS SECTION, "UNDISPOSED CASE" SHALL MEAN A CRIMI-
NAL ACTION OR PROCEEDING, OR AN ARREST INCIDENT, IDENTIFIED IN THE DIVI-
SION'S CRIMINAL HISTORY RECORDS FOR WHICH NO CONVICTION,  IMPOSITION  OF
SENTENCE,  ORDER  OF  REMOVAL OR OTHER FINAL DISPOSITION, OTHER THAN THE
ISSUANCE OF AN APPARENTLY UNEXECUTED WARRANT, HAS BEEN RECORDED AND WITH
RESPECT TO WHICH NO ENTRY HAS  BEEN  MADE  IN  THE  DIVISION'S  CRIMINAL
HISTORY  RECORDS FOR A PERIOD OF AT LEAST FIVE YEARS PRECEDING THE ISSU-
ANCE OF SUCH REPORT.
  3. THE PROVISIONS OF SUBDIVISION ONE OF THIS SECTION SHALL  NOT  APPLY
TO  CRIMINAL  HISTORY RECORD INFORMATION (A) PROVIDED BY THE DIVISION TO
QUALIFIED AGENCIES PURSUANT TO SUBDIVISION SIX OF SECTION EIGHT  HUNDRED
THIRTY-SEVEN  OF  THIS  ARTICLE,  OR TO FEDERAL OR STATE LAW ENFORCEMENT
AGENCIES, FOR CRIMINAL JUSTICE PURPOSES; (B) PREPARED SOLELY FOR A  BONA
FIDE RESEARCH PURPOSE; OR (C) PREPARED FOR THE INTERNAL RECORDKEEPING OR
CASE MANAGEMENT PURPOSES OF THE DIVISION.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD04010-01-3

S. 1395                             2

  4.  NOTHING  CONTAINED  IN  THIS  SECTION SHALL BE DEEMED TO PERMIT OR
REQUIRE THE RELEASE, DISCLOSURE OR OTHER DISSEMINATION BY  THE  DIVISION
OF  CRIMINAL  HISTORY RECORD INFORMATION THAT HAS BEEN SEALED IN ACCORD-
ANCE WITH LAW.
  S  2.  Subdivision 2 of section 212 of the judiciary law is amended by
adding a new paragraph (s) to read as follows:
  (S) TAKE SUCH ACTIONS AND ADOPT SUCH MEASURES AS MAY BE  NECESSARY  TO
ENSURE THAT NO WRITTEN OR ELECTRONIC REPORT OF A CRIMINAL HISTORY RECORD
SEARCH  CONDUCTED  BY  THE  OFFICE OF COURT ADMINISTRATION, OTHER THAN A
SEARCH CONDUCTED SOLELY FOR THE INTERNAL RECORDKEEPING OR  CASE  MANAGE-
MENT  PURPOSES  OF  THE  JUDICIARY  OR FOR A BONA FIDE RESEARCH PURPOSE,
CONTAINS INFORMATION RELATING TO AN UNDISPOSED  CASE.  FOR  PURPOSES  OF
THIS  PARAGRAPH,  "UNDISPOSED  CASE"  SHALL  MEAN  A  CRIMINAL ACTION OR
PROCEEDING, OR AN ARREST INCIDENT, APPEARING  IN  THE  CRIMINAL  HISTORY
RECORDS  OF  THE OFFICE OF COURT ADMINISTRATION FOR WHICH NO CONVICTION,
IMPOSITION OF SENTENCE, ORDER OF REMOVAL  OR  OTHER  FINAL  DISPOSITION,
OTHER  THAN  THE  ISSUANCE OF AN APPARENTLY UNEXECUTED WARRANT, HAS BEEN
RECORDED AND WITH RESPECT TO WHICH  NO  ENTRY  HAS  BEEN  MADE  IN  SUCH
RECORDS  FOR  A  PERIOD OF AT LEAST FIVE YEARS PRECEDING THE ISSUANCE OF
SUCH REPORT. NOTHING CONTAINED IN THIS  PARAGRAPH  SHALL  BE  DEEMED  TO
PERMIT  OR REQUIRE THE RELEASE, DISCLOSURE OR OTHER DISSEMINATION BY THE
OFFICE OF COURT ADMINISTRATION OF CRIMINAL  HISTORY  RECORD  INFORMATION
THAT HAS BEEN SEALED IN ACCORDANCE WITH LAW.
  S 3. This act shall take effect on the one hundred eightieth day after
it  shall  have  become  a  law  and shall apply to searches of criminal
history records conducted on or after such date; provided, however, that
prior to such effective date, the division of criminal justice services,
in consultation with the state administrator of the unified court system
as well as any other public or  private  agency,  shall  undertake  such
measures  as  may  be  necessary  and appropriate to update its criminal
history records with respect to criminal cases and arrest incidents  for
which no final disposition has been reported.

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