senate Bill S4071

2013-2014 Legislative Session

Permits disclosure of arrest and prosecution records of applicants for employment in police departments and law enforcement agencies

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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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Actions

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jan 08, 2014 referred to codes
returned to senate
died in assembly
Jun 13, 2013 referred to codes
delivered to assembly
passed senate
Jun 12, 2013 ordered to third reading cal.1336
committee discharged and committed to rules
Jun 05, 2013 reported and committed to finance
Mar 07, 2013 referred to codes

Votes

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Jun 17, 2013 - Rules committee Vote

S4071
21
3
committee
21
Aye
3
Nay
0
Aye with Reservations
0
Absent
1
Excused
0
Abstained
show Rules committee vote details

Jun 12, 2013 - Rules committee Vote

S4071
21
3
committee
21
Aye
3
Nay
0
Aye with Reservations
0
Absent
1
Excused
0
Abstained
show Rules committee vote details

Jun 5, 2013 - Codes committee Vote

S4071
11
1
committee
11
Aye
1
Nay
3
Aye with Reservations
0
Absent
0
Excused
0
Abstained
show Codes committee vote details

Codes Committee Vote: Jun 5, 2013

nay (1)
aye wr (3)

S4071 - Bill Details

Current Committee:
Law Section:
Criminal Procedure Law
Laws Affected:
Amd §§160.50, 160.55 & 160.58, CP L; amd §296, Exec L

S4071 - Bill Texts

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Permits disclosure of arrest and prosecution records of applicants for employment by police departments and other law enforcement agencies.

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BILL NUMBER:S4071

TITLE OF BILL: An act to amend the criminal procedure law and the
executive law, in relation to disclosure of arrest and prosecution
records of applicants for employment by police departments and other
law enforcement agencies

PURPOSE:

To allow the disclosure of criminal histories of all applicants for
employment by police departments and other law enforcement agencies.

SUMMARY OF PROVISIONS:

Section 1 of the bill amends Criminal Procedure Law section
160.50(1)(d) to provide that criminal records sealed pursuant to this
section shall be made available to a police department or law
enforcement agency when an employment application has been made by the
person accused of criminal activity. Any records obtained must also be
provided to the applicant and the applicant shall be afforded the
opportunity to provide an explanation.

Section 2 of the bill amends Criminal Procedure Law section
160.55(1)(d) to provide that criminal records sealed pursuant to this
section shall be made available to a police department or law
enforcement agency when an employment application has been made by the
person accused of criminal activity. Any records obtained must also be
provided to the applicant and the applicant shall be afforded the
opportunity to provide an explanation.

Section 3 of the bill amends Executive Law section 296(16), which is
the Human Rights Law, to provide that it shall not be an unlawful
discriminatory practice to for a police department or law enforcement
inquire about a criminal accusation or arrest of an applicant that is
not followed by a youthful offender adjudication or sealed pursuant to
Criminal procedure Law sections 160.55 or 160.58.

Section 4 of the bill amends Criminal Procedure Law section 160.58
regarding sealed convictions for marihuana and certain controlled
substances to allow disclosure to police departments and law
enforcement agencies in relation to an application for employment.

Section 5 of the bill provides that this act shall take effect on the
ninetieth day after it shall have become a law.

EXISTING LAW:

Currently, both amended sections of the Criminal Procedure Law provide
that sealed criminal records regarding a person may be made available
to certain entities in certain specified situations. These situations
include disclosure to the prospective employer of a police officer or
peace officer in relation to an application for employment as a police
officer or peace officer and to the State or local officer responsible
for the issuance of licenses to possess a gun. Currently, the Human
Rights Law provides that it is not an unlawful discriminatory practice
for an agency, in connection with an application for employment as a


police officer or peace officer, to inquire about certain arrests or
criminal accusations concerning the applicant.

JUSTIFICATION:

It is vitally important that police departments and other law
enforcement agencies have the ability to conduct thorough background
checks on potential employees. Current law provides an ability to do
so when the applicant is a potential police officer or peace officer.
Pursuant to Criminal Procedure Law section 160.50(d), police
departments and law enforcement agencies may receive criminal
histories that include cases sealed pursuant to such sections that
terminated in favor of the accused.

However, under current law, police departments and law enforcement
agencies may not obtain disclosure of records that were sealed under
the provisions of Criminal Procedure Law section 160.55 for applicants
seeking employment by the police department or law enforcement agency.
This anomalous result, where law enforcement is authorized to obtain
records of sealed acquittals but not sealed convictions, must be
corrected.

Further, in neither case are the records of potential civilian
employees of law enforcement agencies made available. Employment by a
police agency is by definition sensitive in nature. Civilian employees
may have access to highly confidential information and, may occupy
positions of trust, with the availability to take enforcement action
or make decisions affecting agency operations and policy. Police
agencies are responsible for both conventional crime fighting and
counter terrorism efforts, and it is vitally important that these
agencies obtain as much information about potential employees as is
possible before a law enforcement agency entrusts them with
responsibility for public safety.

LEGISLATIVE HISTORY:

2012: S.1423 - Referred to Codes
2011: S.1423 - Passed Senate
2009 - 2010: S.2101 - Referred to Codes
2007 - 2008: S.4268-A - Passed Senate both years
2006: S.7927 - Passed Senate

FISCAL IMPLICATIONS:

None

EFFECTIVE DATE:

This act shall take effect on the ninetieth day 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
________________________________________________________________________

                                  4071

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                              March 7, 2013
                               ___________

Introduced  by  Sen.  GOLDEN -- 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 disclosure of arrest and prosecution records of applicants
  for  employment  by police departments and other law enforcement agen-
  cies

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

  Section  1.  Paragraph  (d)  of subdivision 1 of section 160.50 of the
criminal procedure law, as amended by section 73 of subpart B of part  C
of chapter 62 of the laws of 2011, is amended to read as follows:
  (d)  such  records shall be made available to the person accused or to
such person's designated agent, and shall be made  available  to  (i)  a
prosecutor in any proceeding in which the accused has moved for an order
pursuant  to  section  170.56  or  210.46 of this chapter, or (ii) 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 (iii)  any  state
or  local  officer  or  agency  with  responsibility for the issuance of
licenses to possess guns, when the accused has made application for such
a license, or (iv) the New York  state  department  of  corrections  and
community  supervision  when  the  accused is on parole supervision as a
result of conditional release or a 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  such  super-
vision  or  (v)  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 applica-
tion for employment 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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD07250-02-3

S. 4071                             2

records  obtained  under  this  paragraph and afforded an opportunity to
make an explanation thereto, or (vi) A POLICE DEPARTMENT  OR  OTHER  LAW
ENFORCEMENT  AGENCY, IN RELATION TO AN APPLICATION BY THE PERSON ACCUSED
FOR  EMPLOYMENT  BY  SUCH  AGENCY OR DEPARTMENT; PROVIDED, HOWEVER, THAT
EVERY SUCH PERSON SHALL BE FURNISHED WITH A COPY OF ALL RECORDS OBTAINED
UNDER THIS PARAGRAPH AND AFFORDED AN OPPORTUNITY TO MAKE AN  EXPLANATION
THERETO,  OR  (VII) 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; and
  S  2. Paragraph (d) of subdivision 1 of section 160.55 of the criminal
procedure law, as amended by section 74 of subpart B of part C of  chap-
ter 62 of the laws of 2011, is amended to read as follows:
  (d) the records referred to in paragraph (c) of this subdivision shall
be  made  available to the person accused or to such person's designated
agent, and shall be made available to (i) a prosecutor in any proceeding
in which the accused has moved for an order pursuant to  section  170.56
or  210.46  of  this  chapter,  or (ii) 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 (iii) any state or local officer or agency with
responsibility for the issuance of licenses to possess  guns,  when  the
accused  has  made  application for such a license, or (iv) the New York
state department of  corrections  and  community  supervision  when  the
accused  is  under parole supervision as a result of conditional 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 such supervision, or (v) 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 (vi) a police agency, probation  department,  sher-
iff's  office,  district  attorney's office, department of correction of
any municipality and parole department, for  law  enforcement  purposes,
upon  arrest  in  instances  in which the individual stands convicted 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 subdivision one of section 530.11 of this
chapter, and determined  pursuant  to  subdivision  eight-a  of  section
170.10 of this title; OR (VII) A POLICE DEPARTMENT OR OTHER LAW ENFORCE-
MENT  AGENCY,  IN  RELATION  TO AN APPLICATION BY THE PERSON ACCUSED FOR
EMPLOYMENT BY SUCH AGENCY OR DEPARTMENT; PROVIDED, HOWEVER,  THAT  EVERY
SUCH PERSON SHALL BE FURNISHED WITH A COPY OF ALL RECORDS OBTAINED UNDER
THIS PARAGRAPH AND AFFORDED AN OPPORTUNITY TO MAKE AN EXPLANATION THERE-
TO; and
  S 3. 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

S. 4071                             3

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, in connection with the licensing, employ-
ment  or  providing of credit or insurance to such individual; provided,
further, 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 proce-
dure law, or by a conviction which is sealed pursuant to section  160.58
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 OR IN RELATION
TO  AN APPLICATION   FOR EMPLOYMENT FOR ANY POSITION IN A POLICE DEPART-
MENT  OR  OTHER  LAW  ENFORCEMENT  AGENCY;  provided  further  that  the
provisions  of  this  subdivision  shall not apply to an application for
employment or membership in any law enforcement agency with  respect  to
any  arrest  or  criminal  accusation  which  was followed 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.
  S  4. Paragraphs (c) and (d) of subdivision 6 of section 160.58 of the
criminal procedure law, as added by section 3 of part AAA of chapter  56
of  the  laws  of  2009, are amended and a new paragraph (e) is added to
read as follows:
  (c) the court has received documentation that the sentences imposed on
the eligible misdemeanor convictions have been completed, or if no  such
documentation  is  reasonably  available,  a  sworn  affidavit  that the
sentences imposed on the prior misdemeanors have been completed; [and]
  (d) the court has notified the district attorney of each  jurisdiction
in  which the defendant has been convicted of an offense with respect to
which sealing is sought, and the court or  courts  of  record  for  such
offenses,  that  the  court  is  considering  sealing the records of the
defendant's eligible misdemeanor convictions. Both the district attorney
and the court shall be given a reasonable opportunity, which  shall  not
be  less  than  thirty days, in which to comment and submit materials to
aid the court in making such a determination[.]; AND
  (E) ANY POLICE DEPARTMENT OR LAW ENFORCEMENT AGENCY, IN RELATION TO AN
APPLICATION FOR EMPLOYMENT BY SUCH POLICE DEPARTMENT OR LAW  ENFORCEMENT
AGENCY;  PROVIDED, HOWEVER, THAT EVERY APPLICANT SHALL BE FURNISHED WITH
A COPY OF ALL RECORDS OBTAINED UNDER  THIS  PARAGRAPH  AND  AFFORDED  AN
OPPORTUNITY TO MAKE AN EXPLANATION THERETO.
  S  5.  This  act shall take effect on the ninetieth day after it shall
have become a law.

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