Senate Bill S6939

                                 BILL NUMBER:  S6939

 TITLE OF BILL :  An act to amend the criminal procedure law, in
relation to sealing petty offenses

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of his Advisory
Committee on Criminal Law and Procedure.

The measure would amend CPL 160.55 to clarify that where a court
sentences a defendant convicted of a petty offense to a term of a
conditional discharge, the criminal action or proceeding does not
terminate for purposes of sealing until the defendant has satisfied
the conditions imposed by the court at the time of sentence.

When an individual is convicted of a petty offense, the Criminal
Procedure Law provides for sealing all official records and papers
relating to the arrest or prosecution on file with the Division of
Criminal Justice Services, the police and the prosecutor's office

(CPL 160.55). This sealing protocol is triggered "(u)pon the
termination of a criminal action or proceeding against a person by the
conviction of a . . . violation" (see CPL 160.55(1)). In this context,
the word "conviction" means "the entry of a plea of guilty to, or a
verdict of guilty upon, an accusatory instrument . . . " (CPL
1.20(13)). Thus, a defendant is "convicted" when he or she pleads
              

guilty. In contrast, a "criminal action terminates with the imposition
of sentence or some other final disposition in a criminal court (CPL
1.20(16)), whereas a "criminal proceeding" means any proceeding which
constitutes a part of a criminal action or occurs in a criminal court
and is related to a prospective, pending or completed criminal action
(CPL 1.20(18)).

The ambiguous language of CPL 160.55 for the timing of the sealing of
the conviction has led to an inconsistent application of sealing
rules, especially as it applies to sentences of a conditional
discharge, which are rarely monitored by any agency. Many courts seal
the case upon sentence in accordance with the statutory language
requiring sealing on the date the criminal action has terminated (CPL
1.20(16)). However, where the case is sealed on the date of sentence,
official records are no longer available for review. If the defendant
is rearrested on an unrelated offense during the term of the
conditional discharge, the sealed conviction will not be reflected,
and in most cases the court will never learn that the defendant has
violated a critical condition of his or her sentence. In recognition
of this result, some courts administratively withhold sealing until
the sentence of conditional discharge is satisfied, reasoning that the
"criminal proceeding" has not terminated (CPL 1.20(18)). Other courts
avoid the issue by ordering the file to remain unsealed "in the
interests of justice" so that any re-arrest will be properly brought
to the attention of the court. This procedure, however, may unduly
delay sealing, even after the conditional discharge sentence is
completed, and may require a defendant to bring a separate proceeding
to later seal the case when the period of conditional discharge ends.

This measure resolves both the statutory ambiguity and the procedural
inconsistency by making it plain that sentences of conditional
discharge do not terminate until the completion of all conditions
imposed by the court. The measure leaves intact, however, the court's
authority to terminate the sentence of conditional discharge "in the
interests of justice." Our Advisory Committee has reasoned that any
other result gives an unwarranted advantage to a defendant by
suppressing any meaningful use of the record to monitor defendant's
compliance with the sentence of conditional discharge.


This measure, which would have no fiscal impact, would take effect
immediately.

 LEGISLATIVE HISTORY :

None. New proposal.