senate Bill S3384

2013-2014 Legislative Session

Provides for the application for sealing a record of conviction

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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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Jan 08, 2014 referred to codes
Feb 01, 2013 referred to codes

S3384 - Bill Details

Current Committee:
Law Section:
Criminal Procedure Law
Laws Affected:
Add §160.65, CP L; amd §296, Exec L
Versions Introduced in 2011-2012 Legislative Session:
S5843

S3384 - Bill Texts

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Provides for the application for sealing a record of conviction; establishes waiting periods for various convictions where such application may be made; authorizes certain agencies to maintain records; may be unsealed at the time of an arrest; prohibits the publication of sealed records; prohibits the waiver of this section at plea.

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BILL NUMBER:S3384

TITLE OF BILL: An act to amend the criminal procedure law and the exec-
utive law, in relation to applications for sealing a record of
conviction

PURPOSE OR GENERAL IDEA OF BILL: This bill would establish a procedure
for an individual with a criminal record, who has completed his or her
sentence and has been crime-free for a specified waiting period, to
apply to the sentencing court, on notice to the prosecutor, for an order
sealing the record of conviction. The bill's purpose is to help current
law abiding individuals keep, regain or gain employment by strengthening
mechanisms intended to prevent employment discrimination against ex-of-
fenders.

SUMMARY OF SPECIFIC PROVISIONS:

Section one of the bill adds a new section 160.65 to the Criminal Proce-
dure Law ("CPL"), setting out the criteria and procedures for sealing a
record of conviction.

Section two makes conforming changes to Executive Law section 296, to
effectuate the bill's nondiscrimination purposes.

Section three is the effective date.

New CPL 160.65's provisions include the following:

(Subdivision 1) The application must be sworn to and accompanied by a 95
dollar application fee), An applicant must have served the full
sentence, including any supervision component, sex offender registration
requirement or order of protection, and must have completed a waiting
period which varies depending on the classification and number of prior
convictions (subdivision 2; waiting periods set out in paragraphs a to
h)

(Subdivision 3) The application is to be made to the sentencing court,
and applications may be referred to magistrates, who may grant applica-
tions for misdemeanors and non-criminal offenses, and make recommenda-
tions to the judge regarding felonies.

(Subdivision 4) An application must be sworn to under penalties of
perjury and must include specific information about all of the
applicant/petitioner's prior convictions, including any convictions in
other states or federal court,

(Subdivision 5) The application must be served on the original prosecut-
ing agency on 21 days notice, with an opportunity for the prosecutor to
answer 7 days prior to the return date.

(Subdivision 6) For violations (non-criminal offenses), misdemeanors and
nonviolent felony convictions, there is a rebuttable presumption that
the application will be granted unless sealing will harm public safety
or would not serve the interests of justice. For violent felony
convictions, there is a rebuttable presumption that the application will
not be granted, unless the applicant establishes multiple factors,
including complete rehabilitation, that the crime was an aberration and
is not likely to recur.

(Subdivision 7) The court may order a report on the applicant's back-
ground and circumstances.

(Subdivision 8), may conduct a hearing as to any issue of fact or law.

(Subdivision 9), and must issue a written decision stating reasons for
the decision unless the application is granted without objection.

(Subdivision 18) Either party may appeal.

(Subdivision 10) of new CPL 160.55 governs a sealing order's effective
date.

(Subdivision 11) sets out the actions to be taken to seal records pursu-
ant to such an order, and also provides for access to sealed records by
law enforcement and prosecution agencies and for the conviction to
spring back upon a new arrest.

(Subdivision 12) explicitly states that nothing contained in new CPL
160.65 changes the sentencing provisions of the Penal Law.

(Subdivision 13) sets out sanctions and remedies for unauthorized publi-
cation of information regarding sealed records.

(Subdivision 14) deals with applications to unseal a previously sealed
record.

(Subdivisions 15 and 16) relate to employment; private employers may
search government records, but may not ask job applicants if they have
been arrested or convicted.

(Subdivision 17) limits re-disclosure by purchasers of criminal records
or databases of such records and requires sellers of such records data-
bases to develop systems for validating the accuracy of records and to
give written notice to purchasers about the limits on re-disclosure.

JUSTIFICATION: New York's public policy of assisting ex-offenders by
prohibiting employment discrimination based on criminal history (see
Correction Law Article 23-A) is compromised by increasingly easy access
to various databases and" other information available over the internet
that provide criminal history information about individuals, especially
when that information may be incomplete or outdated, and even when it is
accurate, may reflect a conviction that occurred long ago and that may

hinder employment opportunities for someone who has been a law abiding
citizen for many years. Current law does not provide a mechanism for
addressing the employment discrimination problems created by technolog-
ical advances. This bill provides such a mechanism.

Many individuals who made mistakes in the past and have led law abiding
lives since their convictions have either lost jobs due to the economic
downturn, have lost jobs because employers began checking criminal
records, or afraid to apply for new and better jobs because they fear
they will be asked about criminal records. Job applicants are routinely
asked about criminal records and eliminated from consideration for
crimes that occurred years, or even decades, ago.

Twenty, or even ten, years ago it was relatively difficult for employers
to get criminal record information for job applicants as a routine
matter. Over the last ten years, the free flow of information over the
Internet, live data feeds, sales of databases, etc. have made it easy
for employers to obtain criminal record information. Even applicants
for low paying jobs are subject to criminal records questions on appli-
cations and/or criminal records checks. It is critical that the Legisla-
ture act now to establish a mechanism for sealing records before so much
information is so available that it becomes impossible to seal records
in a meaningful way.

PRIOR LEGISLATIVE HISTORY: New bill.

FISCAL IMPLICATIONS: To be determined, but note that any workload driv-
en costs should be offset by the $95 application fee, and it is possible
that net revenue could be generated by this bill.

EFFECTIVE DATE: This act shall take effect 60 days after having become
a law.

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

                                  3384

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                            February 1, 2013
                               ___________

Introduced  by  Sen. HASSELL-THOMPSON -- read twice and ordered printed,
  and when printed to be committed to the Committee on Codes

AN ACT to amend the criminal procedure law and  the  executive  law,  in
  relation to applications for sealing a record of conviction

  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 SEALING RECORD OF CONVICTION; APPLICATION FOR.
  1.  A  PERSON  IS  ELIGIBLE  TO  APPLY TO SEAL A RECORD OF CONVICTION,
SUBJECT TO THE PROVISIONS CONTAINED IN THIS SECTION, BY APPLICATION ON A
FORM SPECIFICALLY DESIGNATED, SWORN TO  UNDER  PENALTY  OF  PERJURY  AND
ACCOMPANIED BY A FEE OF NINETY-FIVE DOLLARS.
  2.  AN  APPLICANT  MUST  BE  DULY TERMINATED AND DISCHARGED FROM EVERY
ASPECT OF THE  SENTENCE,  INCLUDING  INCARCERATION,  PROBATION,  PAROLE,
CONDITIONAL  RELEASE,  POST-RELEASE  SUPERVISION, CONDITIONAL DISCHARGE,
SEX OFFENDER REGISTRATION AND/OR ANY ORDER OF PROTECTION ON THIS OR  ANY
OTHER  MATTER  AGAINST  THE  APPLICANT  MUST HAVE EXPIRED. THE FOLLOWING
WAITING PERIODS APPLY TO APPLICATIONS UNDER THIS SECTION,  HOWEVER,  FOR
GOOD  CAUSE SHOWN, THE COURT MAY SHORTEN A WAITING PERIOD. ATTENDANCE AT
A DIVERSION PROGRAM WHICH DELAYED THE IMPOSITION  OF  THE  SENTENCE  MAY
CONSTITUTE GOOD CAUSE, IN THE COURT'S DISCRETION.
  (A)  FOR  A PERSON WHO HAS BEEN CONVICTED OF ONE NON-CRIMINAL OFFENSE,
THE WAITING PERIOD SHALL BE SIX MONTHS FROM THE DATE  OF  CONVICTION  OF
SUCH OFFENSE.
  (B)  FOR A PERSON WHO HAS BEEN CONVICTED OF MORE THAN ONE NON-CRIMINAL
OFFENSE ARISING FROM SEPARATE INCIDENCES, THE WAITING  PERIOD  SHALL  BE
ONE YEAR FROM THE DATE OF CONVICTION OF THE LAST SUCH OFFENSE.
  (C)  FOR A PERSON WHO HAS BEEN CONVICTED OF A MISDEMEANOR, THE WAITING
PERIOD SHALL BE ONE YEAR FROM THE DATE OF CONVICTION OF  SUCH  MISDEMEA-
NOR.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD06410-01-3

S. 3384                             2

  (D)  FOR  A PERSON WHO HAS BEEN CONVICTED OF MORE THAN ONE MISDEMEANOR
ARISING FROM SEPARATE INCIDENCES, THE  WAITING  PERIOD  SHALL  BE  THREE
YEARS FROM THE DATE OF CONVICTION OF LAST SUCH MISDEMEANOR.
  (E) FOR A PERSON WHO HAS BEEN CONVICTED OF ONE NON-VIOLENT FELONY, THE
WAITING  PERIOD  SHALL BE FIVE YEARS FROM THE DATE OF CONVICTION OF SUCH
NON-VIOLENT FELONY.
  (F) FOR A PERSON WHO HAS BEEN CONVICTED OF MORE THAN  ONE  NON-VIOLENT
FELONY ARISING FROM SEPARATE INCIDENCES, THE WAITING PERIOD SHALL BE TEN
YEARS FROM THE DATE OF CONVICTION OF THE LAST NON-VIOLENT FELONY.
  (G) FOR A PERSON WHO HAS BEEN CONVICTED OF A VIOLENT FELONY, THE WAIT-
ING  PERIOD  SHALL  BE TEN YEARS FROM THE DATE OF THE CONVICTION OF SUCH
VIOLENT FELONY.
  (H) FOR A PERSON CONVICTED OF MORE THAN  ONE  VIOLENT  FELONY  ARISING
FROM  SEPARATE INCIDENCES, THE WAITING PERIOD SHALL BE TWENTY YEARS FROM
THE DATE OF CONVICTION OF THE LAST VIOLENT FELONY.
  3. AN APPLICATION FOR SEALING A RECORD OF CONVICTION SHALL BE MADE  TO
THE  JUDGE  WHO  ORIGINALLY  SENTENCED  THE APPLICANT. IN THE EVENT SUCH
JUDGE IS UNAVAILABLE, THE APPLICATION SHALL BE MADE TO A  SITTING  JUDGE
IN  THE  COURT IN WHICH THE CONVICTION WAS ORDERED, AS DESIGNATED BY THE
SUPERVISING OR ADMINISTRATIVE JUDGE OF THAT COURT. THE JUDGE  MAY  REFER
AN  APPLICATION  UNDER  THIS SECTION TO A MAGISTRATE, WHO SHALL HAVE THE
AUTHORITY TO GRANT SUCH AN APPLICATION IN  THE  CASE  OF  A  MISDEMEANOR
CONVICTION  OR  A CONVICTION TO A NON-CRIMINAL OFFENSE. IN THE EVENT THE
MAGISTRATE RECOMMENDS DENIAL OF AN APPLICATION RELATING TO A MISDEMEANOR
OR NON-CRIMINAL OFFENSE, SUCH RECOMMENDATION SHALL BE MADE TO A JUDGE AS
DESIGNATED IN THIS SECTION, WHO SHALL, UPON  REVIEWING  THE  RECORD  AND
HEARING  THE APPLICANT, RULE ON THE APPLICATION. IN THE CASE OF A FELONY
MATTER, THE MAGISTRATE MUST MAKE A RECOMMENDATION TO THE JUDGE REGARDING
SUCH APPLICATION, STATING IN WRITING THE REASONS FOR THE RECOMMENDATION.
THE JUDGE SHALL REVIEW THE RECORD AND SUCH RECOMMENDATION AND AFFORD THE
APPLICANT AN OPPORTUNITY TO BE HEARD PRIOR TO RULING ON THE APPLICATION.
  4. AN APPLICATION PURSUANT TO THIS SECTION SHALL  BE  SWORN  TO  UNDER
PENALTY OF PERJURY AND SHALL INCLUDE:
  (A) A LIST OF EACH OF THE PETITIONER'S CONVICTIONS IN NEW YORK STATE ,
ANY CONVICTIONS IN ANY OTHER STATE OR IN FEDERAL COURT, THE SENTENCE FOR
EACH  SUCH  CONVICTION  AND  THE  DATE  OF  THE  SENTENCE.  NON-CRIMINAL
CONVICTIONS OUTSIDE NEW YORK STATE NEED NOT BE INCLUDED.
  (B) A STATEMENT AS TO THE TERMINATION OF EACH ASPECT OF  THE  SENTENCE
FOR  EACH  OF  THE ABOVE-LISTED CONVICTIONS, INCLUDE THE DATES OF TERMI-
NATION FROM PROBATION, PAROLE OR OTHER SUPERVISORY SENTENCES,  A  STATE-
MENT  AS  TO  THE EXISTENCE OF ORDER OR ORDERS OF PROTECTION AND THE END
DATE OF SUCH, AND A STATEMENT AS TO THE COMPLETION  OF  ANY  CONDITIONAL
SENTENCES OR ANY OTHER CONDITIONS OF SENTENCE IMPOSED BY THE COURT OR BY
LAW,  ALTHOUGH  THIS  SHALL NOT BE CONSTRUED TO REQUIRE A PERSON TO HAVE
RESTORED DRIVING OR OTHER PRIVILEGES THAT HAVE BEEN LOST,  SUSPENDED  OR
REVOKED DUE TO THE CONVICTION.
  (C) A DESCRIPTION OF THE NATURE AND CIRCUMSTANCES OF EACH CRIME LISTED
IN PARAGRAPH (A) OF THIS SUBDIVISION.
  (D)  A DESCRIPTION OF THE  NATURE OF THE PETITIONER'S PERSONAL CIRCUM-
STANCES SINCE THE CONVICTION, WHICH SHALL ESTABLISH THAT THE  PETITIONER
IS ENTITLED TO THE RELIEF PROVIDED IN THIS SECTION.
  5.  THE APPLICATION FOR SEALING A RECORD OF CONVICTION SHALL BE SERVED
UPON THE AGENCY THAT ORIGINALLY PROSECUTED THE CASE ON  TWENTY-ONE  DAYS
NOTICE.    THE  PROSECUTING AGENCY MAY FILE AN ANSWER TO THE APPLICATION
SEVEN DAYS PRIOR TO THE RETURN DATE OF THE MOTION. THE COURT  MAY  GRANT
AN APPLICATION ON SUBMISSIONS IF THE PROSECUTING AGENCY DOES NOT FILE AN

S. 3384                             3

OPPOSITION.  IF  THERE IS OBJECTION, THE COURT MUST REVIEW THE ISSUES OF
FACT AND LAW AND DETERMINE THE MERITS OF THE APPLICATION.
  6.  IN  THE  CASE OF NON-CRIMINAL CONVICTIONS, MISDEMEANOR CONVICTIONS
AND NON-VIOLENT FELONY CONVICTIONS, THE COURT SHALL GRANT  THE  APPLICA-
TION  UNLESS  SEALING  THE  RECORDS WILL HARM PUBLIC SAFETY OR WOULD NOT
SERVE THE INTERESTS  OF  JUSTICE.  IN  THE  CASE  OF  A  VIOLENT  FELONY
CONVICTION  OR A CONVICTION FOR A SEX OFFENSE, THE COURT SHALL NOT GRANT
THE APPLICATION UNLESS THE APPLICANT HAS ESTABLISHED THAT HE OR SHE  HAS
BEEN  ENTIRELY  REHABILITATED,  THAT  THE CRIME WAS AN ABERRATION IN THE
APPLICANT'S LIFE, THAT IT IS NOT LIKELY TO RECUR  AND  THAT  IT  IS  NOT
AGAINST  PUBLIC POLICY AND THE INTERESTS OF JUSTICE TO GRANT SUCH APPLI-
CATION.
  7. IF THE COURT DEEMS IT NECESSARY, THE COURT MAY ORDER A REPORT AS TO
THE  APPLICANT'S  BACKGROUND  AND  CIRCUMSTANCES  FROM  AN   INDEPENDENT
CONSULTANT,  EXPERT  OR  AGENCY DEEMED QUALIFIED BY THE COURT TO PREPARE
SUCH A REPORT.
  8. UPON THE REQUEST OF EITHER PARTY OR SUA  SPONTE,  THE  COURT  SHALL
CONDUCT  A  HEARING  AS  TO  ANY  ISSUE OF FACT OR LAW OR IN THE COURT'S
DISCRETION, MAY HEAR TESTIMONY OR ACCEPT  WRITTEN  SUBMISSIONS  RELATING
THE  MERITS  OF  THE APPLICATION OR ANY MATTER DEEMED APPROPRIATE BY THE
COURT IN FURTHERANCE OF DETERMINING THE MOTION. IN ANY SUCH HEARING, THE
COURT SHALL NOT BE BOUND BY THE RULES OF EVIDENCE AND MAY ADMIT  HEARSAY
TESTIMONY  WHICH  THE  COURT BELIEVES WILL SHED LIGHT ON THE APPLICANT'S
CHARACTER AND ELIGIBILITY TO RECEIVE RELIEF UNDER THIS SECTION. HOWEVER,
A DECISION TO GRANT OR DENY AN APPLICATION MAY NOT BE  BASED  SOLELY  ON
HEARSAY OR OTHERWISE TRADITIONALLY INADMISSIBLE EVIDENCE.
  9.  A  DECISION  GRANTING OR DENYING AN APPLICATION UNDER THIS SECTION
SHALL BE IN WRITING AND SHALL STATE THE REASONS FOR THE COURT'S  RULING,
UNLESS  THE  COURT  GRANTS  THE APPLICATION WITHOUT OBJECTION OR WRITTEN
RESPONSE BY THE PROSECUTOR, IN WHICH CASE THE COURT MAY ISSUE  AN  ORDER
WITHOUT A WRITTEN DECISION.
  10.  THE COURT'S SEALING ORDER SHALL BE EFFECTIVE ON THE THIRTIETH DAY
AFTER ISSUANCE OF THE ORDER, EXCEPT THAT A COURT MAY SHORTEN THAT PERIOD
UPON GOOD CAUSE SHOW.
  11. UPON THE EFFECTIVE DATE OF A  SEALING  ORDER  BY  THE  COURT,  ALL
STATE,  COUNTY  AND  LOCAL  GOVERNMENT  AND LAW ENFORCEMENT AGENCIES AND
THEIR AGENTS AND CONTRACTORS MUST SEAL ANY RECORD RELATING TO THE SEALED
CONVICTION, INCLUDING ANY AND ALL RECORDS RELATING TO THE ARREST  AND/OR
DETENTION  OF  THE  APPLICANT.  EACH  AGENCY SHALL DESIGNATE A METHOD OF
SAFEKEEPING DOCUMENTS AND COMPUTER RECORDS IN A MANNER  WHICH  WILL  NOT
INDICATE  THAT  THERE  EVER  WAS A RECORD AS TO THE ARREST, DETENTION OR
CONVICTION OF THE INDIVIDUAL. RECORDS SHALL BE UNSEALED ONLY PURSUANT TO
COURT ORDER EXCEPT THAT THE FOLLOWING AGENCIES MAY MAINTAIN  RECORDS  IN
THE FOLLOWING MANNER:
  (A)  THE  DEPARTMENT  OF  CRIMINAL  JUSTICE  SERVICES SHALL MAINTAIN A
SEALED RECORD IN ITS DATABASE IN A MANNER THAT WILL NOT BE ACCESSIBLE TO
ANYONE OTHER THAN LAW ENFORCEMENT AGENTS OR PROSECUTION AGENCIES IN  THE
COURSE OF A CRIMINAL INVESTIGATION OR PROSECUTION, OR UPON A COURT ORDER
OR  COURT-ORDERED  SUBPOENA  ORDERING RELEASE OF THE INFORMATION. IN THE
EVENT THE APPLICANT  IS  ARRESTED  SUBSEQUENT  TO  THE  SEALING  OF  THE
RECORDS,  THE  UNSEALED  RECORD  SHALL  BE INCLUDED IN THE DEPARTMENT OF
CRIMINAL JUSTICE SERVICES "NYSID" SHEET THAT IS PRINTED OUT BASED ON THE
APPLICANT'S FINGERPRINTS. A COURT, UPON DETERMINING IT IS IN THE  INTER-
ESTS  OF  JUSTICE  TO  UNSEAL  SUCH A RECORD, SHALL ORDER ITS UNSEALING,
WHICH SHALL ALLOW THE PROSECUTOR AND THE COURT TO UNSEAL THE RECORDS  OF

S. 3384                             4

THEIR AGENCY PERTAINING TO THAT ARREST. ANY SUCH UNSEALED FILES SHALL BE
MADE AVAILABLE TO THE DEFENDANT AND HIS OR HER ATTORNEY.
  (B)  THE  DEPARTMENT  OF  CORRECTIONAL  SERVICES AND ALL LOCAL JAIL OR
PRISON AGENCIES SHALL MAINTAIN SEALED RECORDS IN A MANNER THAT PRECLUDES
THE PUBLIC FROM OBTAINING INFORMATION RELATING TO THE ARREST,  DETENTION
OR  CONVICTION OF THE INDIVIDUAL WHOSE RECORD HAS BEEN SEALED, INCLUDING
BUT NOT LIMITED TO REMOVAL FROM ALL PUBLICLY AVAILABLE DATABASES ON  THE
INTERNET  AND  OTHERWISE. HOWEVER, SUCH AGENCIES SHALL MAINTAIN A RECORD
OF INDIVIDUALS WHO HAVE BEEN IN CUSTODY WHICH SHALL BE KEPT BY A  CUSTO-
DIAN  OF  THOSE RECORDS WITHIN THE AGENCY. IN THE EVENT THE INMATE SHALL
BE READMITTED TO THE FACILITY, THE CUSTODIAN IS  AUTHORIZED  TO  RE-OPEN
SUCH FILES, TO BE USED SOLELY FOR THE AGENCY'S OFFICIAL PURPOSES.
  12.  NOTHING IN THIS SECTION SHALL CHANGE THE SENTENCING PROVISIONS IN
THE PENAL LAW. A SEALED RECORD, UNSEALED AT THE  TIME  OF  A  RE-ARREST,
SHALL  CONTINUE  TO  QUALIFY AS A CONVICTION FOR SENTENCING PURPOSES AND
MAY BE USED TO ESTABLISH AN ELEMENT OF A CRIME AS PROVIDED IN THE  PENAL
LAW.
  13.  IT  SHALL  BE A CLASS A MISDEMEANOR TO PUBLISH INFORMATION, OTHER
THAN AS DELINEATED IN PARAGRAPHS (A) AND (B) OF  SUBDIVISION  ELEVEN  OF
THIS  SECTION, REGARDING THE ARREST, DETENTION OR CONVICTION OF AN INDI-
VIDUAL WHOSE RECORD HAS BEEN SEALED. A PERSON AGGRIEVED BY  A  VIOLATION
OF  THIS  SECTION  SHALL HAVE THE RIGHT TO INSTITUTE A CIVIL PROCEEDING,
REGARDLESS OF WHETHER A CRIMINAL ACTION WAS COMMENCED.  A  PLAINTIFF  IS
ENTITLED  TO  FIVE  HUNDRED  DOLLARS  FOR EACH OCCURRENCE ALONG WITH THE
ACTUAL DAMAGES CAUSED BY THE  DISCLOSURE  OF  SUCH  SEALED  RECORD.  LAW
ENFORCEMENT,  PROSECUTION OFFICIALS AND EMPLOYEES OF THE OFFICE OF COURT
ADMINISTRATION SHALL HAVE A DEFENSE TO A CRIMINAL OR CIVIL ACTION  UNDER
THIS SECTION IF THEY BELIEVED,IN GOOD FAITH, THAT THEY WERE PERMITTED OR
REQUIRED  BY  LAW  TO  DISCLOSE  A  SEALED CONVICTION. THERE SHALL BE NO
PROSECUTORIAL OR LAW ENFORCEMENT IMMUNITY UNDER  THIS  SECTION  FOR  ANY
GOVERNMENT  OFFICIAL  WHO KNOWINGLY AND INTENTIONALLY PUBLISHES A SEALED
RECORD WHICH SUCH OFFICIAL KNOWS TO HAVE BEEN SEALED UNDER THIS SECTION.
IF A CONVICTION IS UNSEALED PURSUANT TO A NEW ARREST, THE PROVISIONS  OF
THIS SUBDIVISION SHALL NOT APPLY.
  14.  AN APPLICATION TO UNSEAL A RECORD, WHICH HAS BEEN SEALED PURSUANT
TO THIS SECTION, MAY BE GRANTED BY THE COURT IF IT IS  DETERMINED  THAT,
IN  THE  INTERESTS  OF JUSTICE, THE INFORMATION REGARDING THE UNDERLYING
CONVICTION SHOULD BE DISCLOSED. THERE SHALL BE A PRESUMPTION IN FAVOR OF
UNSEALING A RECORD IF THE PERSON WHO IS SUBJECT TO THE SEALED RECORD  IS
A  WITNESS IN A CRIMINAL CASE. AN APPLICATION UNDER THIS SUBDIVISION MAY
BE MADE EITHER TO THE COURT THAT ORIGINALLY SENTENCED THE  DEFENDANT  IN
THE  SEALED CASE OR MAY BE MADE TO THE COURT WHICH HAS JURISDICTION OVER
ANY CASE IN NEW YORK IN WHICH THE SEALED RECORD MAY BE RELEVANT, INCLUD-
ING THE CASE WHERE THE DEFENDANT ON THE SEALED CASE IS A  WITNESS  IN  A
CIVIL, CRIMINAL OR OTHER COURT PROCEEDING.
  15. A SEALED CONVICTION SHALL NOT OPERATE AS A DISQUALIFICATION OF ANY
PERSON  TO  PURSUE OR ENGAGE IN ANY LAWFUL ACTIVITY, OCCUPATION, PROFES-
SION OR CALLING UNLESS SO ORDERED BY THE  COURT.  EXCEPT  WHERE  SPECIF-
ICALLY  REQUIRED OR PERMITTED BY STATUTE OR UPON SPECIFIED AUTHORIZATION
OF A SUPERIOR COURT, NO SUCH PERSON SHALL BE REQUIRED TO DIVULGE  INFOR-
MATION  PERTAINING  TO THE SEALED RECORD. SUCH PERSON SHALL BE PERMITTED
TO RESPOND IN THE NEGATIVE TO THE QUESTION "HAVE YOU EVER BEEN CONVICTED
OF A CRIME OR VIOLATION?" OR TO ANY QUESTION WITH THE  SAME  SUBSTANTIVE
CONTENT.
  16.  NON-GOVERNMENTAL  EMPLOYERS  ARE HEREINAFTER NOT PERMITTED TO ASK
PROSPECTIVE APPLICANTS IF THEY HAVE BEEN ARRESTED OR IF THEY  HAVE  BEEN

S. 3384                             5

CONVICTED  OF  A  CRIME OR VIOLATION. PRIVATE CITIZENS AND EMPLOYERS ARE
AUTHORIZED  TO  SEARCH  OFFICIAL   GOVERNMENT   RECORDS   FOR   CRIMINAL
CONVICTIONS IN A MANNER CONSISTENT WITH THE LAW. IN THE EVENT AN EMPLOY-
ER  SEARCHES THE CRIMINAL RECORD OF AN INDIVIDUAL, SUCH INDIVIDUAL SHALL
BE PUT ON NOTICE, ORALLY OR IN WRITING, THAT SUCH SEARCH WILL OCCUR.
  17. ANY BUSINESS, AGENCY OR INDIVIDUAL WHO PURCHASES INDIVIDUAL CRIMI-
NAL RECORDS OR DATABASES OF CRIMINAL  RECORDS  SHALL  NOT  DISCLOSE  ANY
INFORMATION  AS TO A RECORD WHICH HAS BEEN SEALED SUBSEQUENT TO THE TIME
THE DATA WAS OBTAINED. ANY AGENCY PROVIDING DATA TO  THE  PUBLIC  OR  TO
PRIVATE BUSINESSES SHALL DEVELOP A SYSTEM WHEREBY ANY RECORD WHICH IS TO
BE  RE-DISCLOSED  CAN BE EASILY AND QUICKLY CHECKED BY THE PERSON, BUSI-
NESS OR ENTITY WHICH HAD OBTAINED THE RECORD BEFORE  IT  WAS  SEALED  TO
DETERMINE  IF  THE  RECORD HAS BEEN SUBSEQUENTLY SEALED. NO GOVERNMENTAL
AGENCY SHALL SELL ANY RECORDS WITHOUT  DEVELOPING  SUCH  A  SYSTEM.  ANY
RECORD  SOLD  OR  PROVIDED  TO  AN  INDIVIDUAL, BUSINESS OR ENTITY SHALL
CONTAIN THE FOLLOWING WARNING:
  YOU ARE NOT PERMITTED TO DISCLOSE THIS INFORMATION TO  ANYONE  WITHOUT
FIRST  CHECKING  TO SEE IF THIS RECORD WAS SEALED AFTER YOU RECEIVED IT.
IT IS UNLAWFUL TO DISCLOSE SEALED RECORDS. TO DETERMINE IF  THIS  RECORD
HAS BEEN SEALED, CONTACT (INCLUDE AGENCY CONTACT INFORMATION HERE).
  18.  EITHER  PARTY  MAY APPEAL AS OF RIGHT FROM THE COURT'S ORDER. THE
APPEALING PARTY MUST SERVE NOTICE OF  APPEAL  UPON  THE  COURT  AND  THE
OPPOSING PARTY WITHIN THIRTY DAYS OF THE ISSUANCE OF THE COURT ORDER. IF
THE  ORDER IS APPEALED BY THE PROSECUTOR, SUCH NOTICE OF APPEAL SHALL BE
DEEMED A STAY OF THE ORDER TO SEAL THE  RECORDS.  THE  PROSECUTOR  SHALL
PERFECT  THE  APPEAL WITHIN SIXTY DAYS, OR THE SEALING ORDER SHALL IMME-
DIATELY TAKE EFFECT UNLESS THE COURT GRANTS AN EXTENSION OF THE TIME  TO
PERFECT  THE  APPEAL UPON GOOD CAUSE SHOWN BY THE PROSECUTOR. THE APPEAL
SHALL BE TAKEN TO THE SAME COURT TO WHICH THE  APPEAL  OF  THE  ORIGINAL
CONVICTION COULD HAVE BEEN BROUGHT. THE STANDARD OF REVIEW AT THE INTER-
MEDIARY APPELLATE COURT SHALL BE ABUSE OF DISCRETION. THE DECISION OF AN
INTERMEDIARY APPELLATE COURT SHALL BE APPEALABLE TO THE COURT OF APPEALS
UPON LEAVE OF THE COURT.
  19.  THE  RIGHT  TO  MAKE AN APPLICATION UNDER THIS SECTION MAY NOT BE
WAIVED AT THE TIME A GUILTY PLEA IS ENTERED ON  ANY  CASE  IN  NEW  YORK
STATE.
  S 2. Subdivision 16 of section 296 of the executive law, as separately
amended  by section 3 of part N and section 14 of part AAA of chapter 56
of the laws of 2009, is amended to read as follows:
  16. It shall be an unlawful discriminatory  practice,  unless  specif-
ically required or permitted by statute, for any person, agency, bureau,
corporation or association, including the state and any political subdi-
vision thereof, to make any inquiry about, whether in any form of appli-
cation  or  otherwise,  or  to  act  upon  adversely  to  the individual
involved, any arrest or criminal accusation of such individual not  then
pending  against  that individual which was followed by a termination of
that criminal action or proceeding  in  favor  of  such  individual,  as
defined  in  subdivision two of section 160.50 of the criminal procedure
law, or by a youthful offender adjudication, as defined  in  subdivision
one  of section 720.35 of the criminal procedure law, or by a conviction
for a violation sealed pursuant to section 160.55 of the criminal proce-
dure law or by a conviction which is sealed pursuant to  section  160.58
of  the  criminal  procedure  law,  OR BY A CONVICTION FOR A CRIMINAL OR
NON-CRIMINAL OFFENSE WHICH IS SEALED PURSUANT TO SECTION 160.65  OF  THE
CRIMINAL  PROCEDURE LAW, in connection with the licensing, employment or
providing of credit or insurance to such individual; provided,  further,

S. 3384                             6

that  no  person  shall be required to divulge information pertaining to
any arrest or criminal accusation of such individual  not  then  pending
against  that  individual  which  was  followed by a termination of that
criminal action or proceeding in favor of such individual, as defined in
subdivision two of section 160.50 of the criminal procedure law, or by a
youthful offender adjudication, as defined in subdivision one of section
720.35 of the criminal procedure law, or by a conviction for a violation
sealed pursuant to section 160.55 of the criminal procedure law, or by a
conviction  which  is  sealed pursuant to section 160.58 of the criminal
procedure law, OR BY A CONVICTION FOR A CRIMINAL OR NON-CRIMINAL OFFENSE
WHICH IS SEALED PURSUANT TO SECTION 160.65  OF  THE  CRIMINAL  PROCEDURE
LAW. The provisions of this subdivision shall not apply to the licensing
activities of governmental bodies in relation to the regulation of guns,
firearms  and  other deadly weapons or in relation to an application for
employment as a police officer or  peace  officer  as  those  terms  are
defined  in subdivisions thirty-three and thirty-four of section 1.20 of
the criminal procedure law; provided further that the provisions of this
subdivision shall not apply to an application for employment or  member-
ship  in any law enforcement agency with respect to any arrest or crimi-
nal accusation which was followed by a youthful  offender  adjudication,
as  defined  in subdivision one of section 720.35 of the criminal proce-
dure law, or by a conviction for a violation sealed pursuant to  section
160.55 of the criminal procedure law, or by a conviction which is sealed
pursuant  to  section  160.58  of  the  criminal  procedure law, OR BY A
CONVICTION FOR A CRIMINAL OR NON-CRIMINAL OFFENSE WHICH IS SEALED PURSU-
ANT TO SECTION 160.65 OF THE CRIMINAL PROCEDURE LAW.
  S 3. This act shall take effect on the sixtieth  day  after  it  shall
have become a law.

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