Senate Bill S3255B

                                BILL NUMBER:S3255

TITLE OF BILL:  An act to amend the criminal procedure law, in relation
to notice by the division of criminal justice services

PURPOSE:  This bill will create a procedure to validate and ensure the
accuracy of a person's permanent criminal record as maintained by the
Division of Criminal Justice Services (DCJS) as it relates to all
warrants issued as part of a criminal proceeding.

SUMMARY OF PROVISIONS:

Section 1 of the bill adds a new subdivision 7 of section S3C.70 of the
criminal procedure law creating a process whereby DCJS is to verify
criminal record information where certain arrest warrant information
contains contradictory information. DCJS is required to contact various
law enforcement entities and the courts in order to clarify the contra-
dictions. In the event no information is forthcoming, the arrest warrant
will be deemed recalled.

EXISTING LAW:  Under Subsection six of Executive Law § 837, the Division
of Criminal Justice Services (DCJS) is required to establish a reposito-
ry to maintain a record of all arrests and prosecutions in New York
State, creating the individual's rap sheet. The registry's data includes
a record of all warrants issued as part of a criminal proceeding. Once
these warrants are vacated by the court, this information should then be
              

sent to DCJS and recorded in the individual's rap sheet.

JUSTIFICATION:  Due to failures in communication among the various crim-
inal justice agencies, the process outlined in the Executive Law is not
always followed, resulting in many individuals having rap sheets that
list warrants as active that have actually been recalled. These mistakes
can cause an individual to be denied employment, housing or public bene-
fits for which they are eligible. It could also potentially lead the
individual to be mistakenly arrested. The proposed amendment offers an
opportunity for individuals who have incorrect, outdated warrant infor-
mation on their record to have that information removed.

Currently, in order to correct warrant-related mistakes of this sort, an
individual must return to the court where their case was heard and ask
the clerk of the court to forward information regarding vacatur of their
warrant to DCJS so that this information may be correctly reflected on
their criminal record. An individual must follow this process even when
it is clear from the criminal record that further proceedings occurred
and that the warrant in question must have been previously cleared.

This process becomes more complex, or even impossible, where the phantom
warrant involves an old case. Under the Records Retention and Disposi-
tion Schedule issued by the Office of Court Administration (OCA), courts
are ordered to destroy records of all returned warrants within five
years of the date of return or recall. Court case files, which may also

contain records concerning warrants, are also scheduled to be destroyed
after a period of time. This period can be as short a six years where
the case was terminated in favor of the defendant or resulted in a
violation disposition. Even records of cases that ended in a felony
conviction are only retained for 25 years before they are destroyed. As
a result, once the courts no longer have any record of these warrants,
these persons have no opportunity to have this inaccurate information
removed from their record. This legislation proposes that DCJS establish
a system so that:

* For all current and future cases, whenever DCJS has a record that a
case contains an open warrant and then receives a notice of new
proceedings in the case - which makes it nearly certain that the warrant
has already been executed or vacated - but there has been no notifica-
tion forwarded to the agency that the warrant has been vacated, DCJS
will:

* Send an automatic notification to all relevant criminal justice agen-
cies.

* These agencies will have 30 days to establish whether or not the
warrant remains open and respond to DCJS. If either a) DCJS hears the
warrants have been vacated or b) ifnone of the agencies provide any
information about the warrant at the end of the 60 days, DCJS will
assume that the warrant has in fact been vacated, and will correct its
records to reflect this.

* For older cases that contain an open warrant as well as a record ofla-
ter proceedings within the same case, DCJS will follow the same proce-
dure as above upon receipt of a written request from the person listed
in their rap sheet or their representative.

In addition to the notification process described above, two other safe-
guards ensure that individuals whose warrants do in fact remain legit-
imately open will not have these warrants improperly vacated.  First,
under the OCA record retention policy set forth above, courts are
required to keep records of any warrants that have not been vacated.
Additionally, the court must also keep a record of any case that remains
open for 50 years if the highest listed charge is a misdemeanor, and 75
years if the highest listed charge is a felony.  One additional safe-
guard would also exist if the individual in question had been incarcer-
ated in a New York State facility.

According to regulations issued by the Department of Correctional
Services (DOCS), the individual in question would only have been eligi-
ble for a temporary release program after DOCS contacted any relevant
courts to make sure that any cases that appeared to remain open, accord-
ing to their criminal record, had in fact been disposed of,

LEGISLATIVE HISTORY:  2011-12: S.3377/A.6473 - Referred to Codes
2009-2010: S.2655A - Died in Finance.  2009-2010: S.3665A - Died in
Codes.  2008: S.8011A/A.10858A - Died in Codes.

FISCAL IMPLICATIONS: To be determined.

EFFECTIVE DATE: January 1, 2015

                                BILL NUMBER:S3255A

TITLE OF BILL:  An act to amend the executive law, in relation to
criminal history record searches and open warrants

PURPOSE: This bill will create a procedure to remove inaccurate
information from an individual's permanent criminal record as
maintained by the Division Criminal Justice Services (DCJS) as it
relates to warrants issued as part of a criminal proceeding.

SUMMARY OF PROVISIONS: Section 1 of the bill adds a new section 845-c
of the executive law creating a process whereby DCJS will exclude a
warrant. that has not been recalled from a person's criminal history
records where there has been a new court proceeding reported on the
case but no warrant has been recalled. This section will not apply to
criminal justice history records available to state agencies with
access to the DCJS data base under. section 837(6) of the Executive
Law or to law enforcement agencies, but will affect. criminal history
background checks for civil purposes.

Section 2 provides an effective date.

EXISTING LAW: Under Subsection six of Executive Law § 837, the
Division of Criminal Justice Services (DCJS) is required to establish
a repository to maintain a record of all arrests and prosecutions in
New York State, creating an individual's rap sheet. The registry's
              

data includes a record of all warrants issued as part of a criminal
proceeding. Once these warrants are vacated by the court, this
information should then be sent. to DCJS and recorded in the
individual's rap sheet.

JUSTIFICATION: Due to failures in communication among the various
criminal justice agencies, the process outlined in the Executive Law
is not. always followed, resulting in many individuals having rap
sheets that. list warrants as active that have actually been recalled.
These mistakes can cause an individual to be denied employment,
housing or. public benefits for which they are eligible.

Currently, in order to correct warrant-related mistakes of this sort,
an individual must return to the court where his or her case was heard
and ask the clerk of the court to forward information regarding the
vacated warrant. to DCJS so that this information may be correctly
reflected on the individual's criminal record. An individual must
follow this process even when it is clear from the criminal record
that further. proceedings occurred and that the warrant in question
must have been previously cleared.

This process becomes more complex, or even impossible, where the
phantom warrant involves an old case. Under the Records Retention and
Disposition Schedule issued by the Office of Court Administration
(OCA), courts are ordered to destroy records of all returned warrants
within five years of the date of return or recall. Court case files,
which may also contain records concerning warrants, are also scheduled
to be destroyed after a period of time. This period can be as short a
six years where the case was terminated in favor of the defendant or
resulted in a violation disposition. Even records of cases that ended
in a felony conviction are only retained for 25 years before they are


destroyed. As a result, once the courts no longer have any record of
these warrants, these persons have no opportunity to have this
inaccurate information removed from their record.

The proposed amendment provides a simple mechanism to have incorrect,
outdated warrant information removed from criminal history records
released for civil background checks. It will not affect the data seen
by qualified state agencies, including the courts, or by law
enforcement.

LEGISLATIVE HISTORY:; A10858-A referred to codes in 2007 and 2008.
A.3665-A was referred to codes in 2009 and 2010. A.6473 was referred
to codes in 2011 and 2012.

FISCAL IMPLICATIONS: To be determined.

EFFECTIVE DATE: This shall take effect January 1, 2015.