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

                                  10010

                          I N  A S S E M B L Y

                               May 4, 2016
                               ___________

Introduced by M. of A. LENTOL -- read once and referred to the Committee
  on Codes

AN  ACT  to  amend  the criminal procedure law and the executive law, in
  relation to the sealing of certain convictions

  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 160.56 to read as follows:
S 160.56 SEALING OF CERTAIN CONVICTIONS.
  1. AS USED IN THIS SECTION, "ELIGIBLE OFFENSE" SHALL MEAN ANY  OFFENSE
DEFINED  IN  THE  LAWS OF THIS STATE OTHER THAN A SEX OFFENSE DEFINED IN
ARTICLE ONE HUNDRED THIRTY OF THE PENAL LAW, AN OFFENSE DEFINED IN ARTI-
CLE TWO HUNDRED SIXTY-THREE OF THE PENAL LAW, A FELONY  OFFENSE  DEFINED
IN  ARTICLE  ONE  HUNDRED TWENTY-FIVE OF THE PENAL LAW, A VIOLENT FELONY
OFFENSE DEFINED IN SECTION 70.02 OF THE PENAL  LAW,  A  CLASS  A  FELONY
OFFENSE  DEFINED  IN  THE  PENAL LAW OTHER THAN A CLASS A FELONY OFFENSE
DEFINED IN ARTICLE TWO HUNDRED TWENTY OF THE PENAL LAW,  OR  AN  OFFENSE
FOR WHICH REGISTRATION AS A SEX OFFENDER IS REQUIRED PURSUANT TO ARTICLE
SIX-C OF THE CORRECTION LAW. FOR THE PURPOSES OF THIS SECTION, WHERE THE
DEFENDANT  IS  CONVICTED OF MORE THAN ONE ELIGIBLE OFFENSE, COMMITTED AS
PART OF THE SAME CRIMINAL TRANSACTION AS DEFINED IN SUBDIVISION  TWO  OF
SECTION  40.10  OF  THIS CHAPTER, THOSE OFFENSES SHALL BE CONSIDERED ONE
ELIGIBLE OFFENSE.
  2. A DEFENDANT WHO HAS BEEN CONVICTED OF UP TO TWO  ELIGIBLE  OFFENSES
BUT  NOT MORE THAN ONE FELONY OFFENSE MAY PETITION THE COURT IN WHICH HE
OR SHE WAS CONVICTED OF THE MOST SERIOUS OFFENSE TO HAVE SUCH CONVICTION
OR CONVICTIONS SEALED. IF ALL OFFENSES ARE OFFENSES WITH THE SAME  CLAS-
SIFICATION,  THE  PETITION  SHALL  BE  FILED  IN  THE COURT IN WHICH THE
DEFENDANT WAS LAST CONVICTED. ON THE DEFENDANT'S MOTION, THE  COURT  MAY
ORDER THAT ALL OFFICIAL RECORDS AND PAPERS RELATING TO THE ARREST, PROS-
ECUTION  AND  CONVICTION  FOR THE DEFENDANT'S PRIOR ELIGIBLE OFFENSES BE
CONDITIONALLY SEALED WHEN:
  (A) THE DEFENDANT HAS NOT BEEN CONVICTED OF ANY OTHER CRIME, INCLUDING
CRIMES SEALED UNDER SECTION 160.58  OF  THIS  CHAPTER,  OTHER  THAN  THE
ELIGIBLE OFFENSES;
  (B)  FOR  A MISDEMEANOR, AT LEAST ONE YEAR HAS PASSED SINCE: THE ENTRY
OF THE JUDGMENT OR; IF THE DEFENDANT  WAS  SENTENCED  TO  A  CONDITIONAL
              

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD15049-02-6

A. 10010                            2

DISCHARGE  OR A PERIOD OF PROBATION, INCLUDING A PERIOD OF INCARCERATION
IMPOSED IN CONJUNCTION WITH  A  SENTENCE  OF  PROBATION  OR  CONDITIONAL
DISCHARGE, THE COMPLETION OF THE DEFENDANT'S TERM OF PROBATION OR CONDI-
TIONAL  DISCHARGE;  OR  IF THE DEFENDANT WAS SENTENCED TO INCARCERATION,
THE DEFENDANT'S RELEASE FROM INCARCERATION, WHICHEVER IS THE LONGEST; OR
  (C) FOR AN ELIGIBLE FELONY, AT LEAST THREE YEARS  HAVE  PASSED  SINCE:
THE ENTRY OF THE JUDGMENT OR; IF THE DEFENDANT WAS SENTENCED TO A CONDI-
TIONAL  DISCHARGE OR A PERIOD OF PROBATION, INCLUDING A PERIOD OF INCAR-
CERATION IMPOSED IN CONJUNCTION WITH A SENTENCE OF PROBATION  OR  CONDI-
TIONAL DISCHARGE, THE COMPLETION OF THE DEFENDANT'S TERM OF PROBATION OR
CONDITIONAL  DISCHARGE;  OR IF THE DEFENDANT WAS SENTENCED TO INCARCERA-
TION, THE DEFENDANT'S RELEASE FROM INCARCERATION, WHICHEVER IS THE LONG-
EST; AND
  (D) THE SENTENCING COURT HAS REQUESTED AND RECEIVED FROM THE  DIVISION
OF  CRIMINAL  JUSTICE  SERVICES OR THE FEDERAL BUREAU OF INVESTIGATION A
FINGERPRINT BASED CRIMINAL HISTORY RECORD OF  THE  DEFENDANT,  INCLUDING
ANY  SEALED  OR SUPPRESSED INFORMATION. THE DIVISION OF CRIMINAL JUSTICE
SERVICES SHALL ALSO INCLUDE A CRIMINAL HISTORY REPORT, IF ANY, FROM  THE
FEDERAL  BUREAU OF INVESTIGATION REGARDING ANY CRIMINAL HISTORY INFORMA-
TION THAT OCCURRED  IN  OTHER  JURISDICTIONS.  THE  DIVISION  IS  HEREBY
AUTHORIZED TO RECEIVE SUCH INFORMATION FROM THE FEDERAL BUREAU OF INVES-
TIGATION  FOR  THIS  PURPOSE.  THE PARTIES SHALL BE PERMITTED TO EXAMINE
THESE RECORDS;
  (E) THE DEFENDANT OR COURT HAS IDENTIFIED THE  MISDEMEANOR  CONVICTION
OR CONVICTIONS OR FELONY CONVICTION FOR WHICH RELIEF MAY BE GRANTED;
  (F) THE COURT HAS RECEIVED DOCUMENTATION THAT THE SENTENCES IMPOSED ON
THE  ELIGIBLE  CONVICTIONS HAVE BEEN COMPLETED, OR IF NO SUCH DOCUMENTA-
TION IS REASONABLY AVAILABLE,  A  SWORN  AFFIDAVIT  THAT  THE  SENTENCES
IMPOSED ON THE PRIOR ELIGIBLE CONVICTIONS HAVE BEEN COMPLETED;
  (G)  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 CONVICTION FOR SUCH
OFFENSES, THAT THE COURT IS  CONSIDERING  SEALING  THE  RECORDS  OF  THE
DEFENDANT'S  ELIGIBLE  CONVICTIONS.  BOTH  THE DISTRICT ATTORNEY AND THE
COURT SHALL BE GIVEN A REASONABLE OPPORTUNITY,  WHICH  SHALL  BE  UP  TO
THIRTY  DAYS,  IN WHICH TO COMMENT AND SUBMIT MATERIALS TO AID THE COURT
IN MAKING SUCH A DETERMINATION.   WHEN THE  COURT  NOTIFIES  A  DISTRICT
ATTORNEY  OF  A SEALING APPLICATION, THE DISTRICT ATTORNEY SHALL PROVIDE
NOTICE TO THE VICTIM, IF ANY, OF  THE  SEALING  APPLICATION  BY  MAILING
WRITTEN  NOTICE TO THE VICTIM'S LAST-KNOWN ADDRESS. FOR PURPOSES OF THIS
SECTION "VICTIM" MEANS ANY PERSON WHO HAS SUSTAINED PHYSICAL  OR  FINAN-
CIAL  INJURY TO PERSON OR TO PROPERTY AS A DIRECT RESULT OF THE CRIME OR
CRIMES FOR WHICH SEALING IS APPLIED. THE COURT SHALL PROVIDE THE DEFEND-
ANT WITH ANY MATERIALS SUBMITTED TO THE COURT IN RESPONSE TO THE DEFEND-
ANT'S PETITION; AND
  (H) NO CHARGES FOR ANY OFFENSE ARE PENDING AGAINST THE DEFENDANT.
  3. AT THE REQUEST OF THE DEFENDANT OR THE DISTRICT ATTORNEY OF A COUN-
TY IN WHICH THE DEFENDANT COMMITTED A CRIME THAT IS THE SUBJECT  OF  THE
SEALING  APPLICATION,  THE  COURT  MAY CONDUCT A HEARING TO CONSIDER AND
REVIEW ANY RELEVANT EVIDENCE OFFERED BY EITHER PARTY THAT WOULD AID  THE
COURT  IN  ITS  DECISION  WHETHER TO SEAL THE RECORDS OF THE DEFENDANT'S
ARRESTS, PROSECUTIONS AND CONVICTIONS. IN MAKING SUCH  A  DETERMINATION,
THE COURT SHALL CONSIDER ANY RELEVANT FACTORS, INCLUDING BUT NOT LIMITED
TO:
  (A)  THE CIRCUMSTANCES AND SERIOUSNESS OF THE OFFENSE OR OFFENSES THAT
RESULTED IN THE CONVICTION OR CONVICTIONS;

A. 10010                            3

  (B) THE CHARACTER OF THE DEFENDANT, INCLUDING WHAT STEPS THE PETITION-
ER HAS TAKEN SINCE THE TIME OF THE  OFFENSE  TOWARD  PERSONAL  REHABILI-
TATION,  INCLUDING  TREATMENT,  WORK,  SCHOOL, OR OTHER PERSONAL HISTORY
THAT DEMONSTRATES REHABILITATION;
  (C) THE DEFENDANT'S CRIMINAL HISTORY;
  (D)  THE  IMPACT  OF  SEALING  THE DEFENDANT'S RECORDS UPON HIS OR HER
REHABILITATION AND HIS OR HER  SUCCESSFUL  AND  PRODUCTIVE  REENTRY  AND
REINTEGRATION INTO SOCIETY, AND ON PUBLIC SAFETY; AND
  (E) ANY STATEMENTS MADE BY THE VICTIM OF THE OFFENSE WHERE THERE IS IN
FACT A VICTIM OF THE CRIME.
  4.  WHEN A COURT ORDERS SEALING PURSUANT TO THIS SECTION, ALL OFFICIAL
RECORDS  AND  PAPERS  RELATING  TO  THE   ARRESTS,   PROSECUTIONS,   AND
CONVICTIONS,  INCLUDING  ALL DUPLICATES AND COPIES THEREOF, ON FILE WITH
THE DIVISION OF CRIMINAL JUSTICE SERVICES OR ANY COURT SHALL  BE  SEALED
AND  NOT  MADE  AVAILABLE  TO  ANY  PERSON  OR PUBLIC OR PRIVATE AGENCY;
PROVIDED, HOWEVER, THE DIVISION  SHALL  RETAIN  ANY  FINGERPRINTS,  PALM
PRINTS, PHOTOGRAPHS, OR DIGITAL IMAGES OF THE SAME.
  5.  WHEN  THE COURT ORDERS SEALING PURSUANT TO THIS SECTION, THE CLERK
OF SUCH COURT SHALL IMMEDIATELY NOTIFY THE COMMISSIONER OF THE  DIVISION
OF CRIMINAL JUSTICE SERVICES, AND ANY COURT THAT SENTENCED THE DEFENDANT
FOR  AN  OFFENSE  WHICH  HAS  BEEN  CONDITIONALLY  SEALED, REGARDING THE
RECORDS THAT SHALL BE SEALED PURSUANT TO THIS SECTION.
  6. RECORDS SEALED PURSUANT TO THIS SECTION SHALL BE MADE AVAILABLE TO:
  (A) THE DEFENDANT OR THE DEFENDANT'S DESIGNATED AGENT;
  (B) QUALIFIED AGENCIES, AS DEFINED  IN  SUBDIVISION  NINE  OF  SECTION
EIGHT  HUNDRED  THIRTY-FIVE  OF THE EXECUTIVE LAW, AND FEDERAL AND STATE
LAW ENFORCEMENT AGENCIES, WHEN ACTING WITHIN  THE  SCOPE  OF  THEIR  LAW
ENFORCEMENT DUTIES;
  (C)  ANY  STATE OR LOCAL OFFICER OR AGENCY WITH RESPONSIBILITY FOR THE
ISSUANCE OF LICENSES TO POSSESS GUNS, WHEN THE PERSON HAS MADE  APPLICA-
TION FOR SUCH A LICENSE;
  (D)  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 APPLICATION FOR EMPLOY-
MENT 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 RECORDS OBTAINED UNDER
THIS PARAGRAPH AND AFFORDED AN OPPORTUNITY TO MAKE AN EXPLANATION THERE-
TO; OR
  (E) THE CRIMINAL JUSTICE INFORMATION SERVICES DIVISION OF THE  FEDERAL
BUREAU  OF  INVESTIGATION,  FOR THE PURPOSES OF RESPONDING TO QUERIES TO
THE NATIONAL INSTANT CRIMINAL BACKGROUND CHECK SYSTEM REGARDING ATTEMPTS
TO PURCHASE OR OTHERWISE TAKE POSSESSION OF FIREARMS, AS DEFINED  IN  18
USC 921 (A) (3).
  7. IF, WITHIN TEN YEARS FOLLOWING THE ENTRY OF THE JUDGMENT OR, IF THE
DEFENDANT  WAS  SENTENCED  TO  A  CONDITIONAL  DISCHARGE  OR A PERIOD OF
PROBATION, INCLUDING A PERIOD OF INCARCERATION  IMPOSED  IN  CONJUNCTION
WITH A SENTENCE OF PROBATION OR CONDITIONAL DISCHARGE, THE COMPLETION OF
THE  DEFENDANT'S  TERM  OF PROBATION OR CONDITIONAL DISCHARGE, OR IF THE
DEFENDANT WAS SENTENCED TO INCARCERATION, THE DEFENDANT'S  RELEASE  FROM
INCARCERATION,  THE  PERSON  WHO  IS  THE SUBJECT OF SUCH RECORDS SEALED
PURSUANT TO THIS SECTION IS ARRESTED FOR OR FORMALLY  CHARGED  WITH  ANY
MISDEMEANOR OR FELONY OFFENSE, SUCH RECORDS SHALL BE UNSEALED IMMEDIATE-
LY  AND REMAIN UNSEALED; PROVIDED, HOWEVER, THAT IF SUCH NEW MISDEMEANOR
OR FELONY ARREST RESULTS IN A TERMINATION IN FAVOR  OF  THE  ACCUSED  AS
DEFINED  IN  SUBDIVISION  THREE  OF SECTION 160.50 OF THIS ARTICLE OR BY

A. 10010                            4

CONVICTION FOR A NON-CRIMINAL OFFENSE AS DESCRIBED IN SECTION 160.55  OF
THIS ARTICLE, SUCH UNSEALED RECORDS SHALL BE CONDITIONALLY SEALED PURSU-
ANT TO THIS SECTION.
  8.  NO  DEFENDANT  SHALL BE REQUIRED OR PERMITTED TO WAIVE ELIGIBILITY
FOR CONDITIONAL SEALING PURSUANT TO THIS SECTION AS PART OF  A  PLEA  OF
GUILTY,  SENTENCE OR ANY AGREEMENT RELATED TO A CONVICTION FOR AN ELIGI-
BLE OFFENSE AND ANY SUCH WAIVER SHALL BE DEEMED VOID  AND  WHOLLY  UNEN-
FORCEABLE.
  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  160.56
OR  160.58 of the criminal procedure law, in connection with the licens-
ing, employment or providing of credit or insurance to such  individual;
provided,  further, that no person shall be required to divulge informa-
tion pertaining to any arrest or criminal accusation of such  individual
not  then pending against that individual which was followed by a termi-
nation of that criminal action or proceeding in favor of  such  individ-
ual,  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  160.56  OR 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 subdivi-
sions  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 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 160.56 OR 160.58 of the criminal procedure law.
  S  3.  This  act  shall take effect on the sixtieth day after it shall
have become a law and shall apply to all convictions occurring prior to,
on, and after such date.