NY State Senate Bill 2015-S5020

Senate Bill S5020

2015-2016 Legislative Session

Relates to the sealing and expungement of records in persons in need of supervision cases in family court

download bill text pdf

Archive: Last Bill Status - In Senate Committee Children And Families Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 06, 2016	referred to children and families
Apr 28, 2015	referred to children and families

2015-S5020 (ACTIVE) - Details

See Assembly Version of this Bill:: A7049
Current Committee:: Senate Children And Families
Law Section:: Family Court Act
Laws Affected:: Amd §§783 & 784, Fam Ct Act
Versions Introduced in 2013-2014 Legislative Session:: S6814, A9916

2015-S5020 (ACTIVE) - Summary

Relates to the sealing and expungement of records in persons in need of supervision cases in family court.

2015-S5020 (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S5020

TITLE OF BILL:  An act to amend the family court act, in relation to
sealing and expungement of records in persons in need of supervision
cases in the family court

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of her Family
Court Advisory and Rules Committee.

When Article 3 of the Family Court Act, the juvenile delinquency
procedure statute, was enacted over three decades ago (L. 1982, c.
920), it incorporated applicable provisions of the Criminal Procedure
Law deemed essential for due process and fairness. However, a similar
process was not undertaken in the remaining provisions of Article 7 of
the Family Court Act, which from that point onward applied only to
Persons in Need of Supervision (PINS). One of the most glaring
omissions is the provision regarding confidentiality of records.
Article 3, modeled after Criminal Procedure Law § 160.50, has afforded
youth accused of juvenile delinquency, like adults accused of crimes,
far more protections than those afforded youth who are the subjects of
PINS proceedings.

Professor Merril Sobie has noted this disparity in his Practice
Commentaries to Family Court Act § 751:

(Family Court Act) Article 7, unlike Article 3 (the juvenile
delinquency statute), does not provide for the automatic sealing of
records when a petition is dismissed or withdrawn (see Section 375.1).
Hence, the records remain relatively open, subject only to the
generalized, imprecise (Family Court Act) Section 166 stipulation that
"(t)he records of any proceeding in the family court shall not be open
to indiscriminate public inspection". Ironically, children who are
falsely accused of non-criminal "status offense" conduct are afforded
less protection than youths who are accused of engaging in criminal
activities.

This measure would correct that imbalance. First, closely tracking
section 375.1 of the Family Court Act and section 160.50 of the
Criminal Procedure Law, the measure would amend Family Court Act § 783
to provide that court records in actions terminated favorably to the
accused - that is, cases that are diverted (diverted without
petition), withdrawn or dismissed -would automatically be sealed.
Notices would be required to be sent to probation departments,
designated lead agencies for PINS diversion and, if either presentment
or law enforcement agencies have been involved, to such agencies,
directing them to seal their records as well. Youth whose cases are
favorably terminated prior to the effective date of the statute would
be permitted to move for sealing upon twenty days' notice.

Second, in cases in which a juvenile has been adjudicated as a PINS,
the juvenile would be permitted to make a motion to seal the record in
the interests of justice. If granted, notices would likewise be sent
to the agencies involved in the case to seal their records. As in
Family Court Act § 375.3, the Family Court would retain its inherent
authority to expunge, rather than simply seal, its records.  See
Matter of Dorothy D. v. New York City Probation Department, 49 N.Y.2d


212 (1980) (juvenile delinquency); Matter of Richard S. v.  City of
New York, 32 N.Y . 2d 592 (1973) (PINS); Matter of Daniel PP., 224
A.D.2d 906 (3d Dept., 1996) (PINS). As the Court of Appeals held in
Matter of Dorothy D. supra:

That the very existence of such records, despite provisions for
confidentiality, may constitute a substantial impediment to entry into
institutions of higher learning, government or private employment, the
armed services, or the professions, cannot be seriously questioned.
For this reason it would be antithetical to the purpose of the Family
Court Act to maintain records which would not benefit society and
would result in bringing unwarranted discrimination to a child's
future. (Matter of Richard S. v. City of New York, 32 N.Y.2d 592,
595-596).

Many states, in fact, include expungement, not simply sealing, as
their mechanism for ensuring the confidentiality of juvenile records.
See, e.g., West's Colorado Revised Statutes § 19-1-306; Illinois
Compiled Statutes § 405/5-915 (juvenile delinquency) and § 405/1-9
(juvenile court records other than juvenile delinquency); Ohio Revised
Code §§ 2151.355, 2151.356, 2151.358 (juvenile delinquency and "unruly
children" records); Revised Code of Washington § 13.50.050; Delaware
Code §§ 1014-1018; North Carolina General Statutes §§ 7B-3200, 3201
(juvenile delinquency and "undisciplined" children); Arizona Revised
Statutes § 13-921; Arkansas Code §§ 9-27-309(b)(1)(A), (b)(2); West's
California Code, Div. 2, C. 2, Art. 22, § 826(a); Connecticut General
Statutes §§ 46b-133a,46b-146; West's Florida Statutes § 943.0582;
Minnesota Statutes § 260B.235(9); Pennsylvania Consolidated Statutes
9123; West's Code of Virginia § 16-1-306.

Finally, recognizing that PINS behavior consists of conduct that would
not be criminal if committed by adults, sections 783 and 784 of the
Family Court Act would be amended to preclude use of PINS records in
other courts. The language in section 783, permitting such records to
be utilized in criminal sentencing proceedings, as well as the
reference in section 784 to criminal courts taking action regarding
police records, are vestiges of the days when juvenile delinquency and
PINS proceedings were both covered by Article 7 of the Family Court
Act and are more appropriately applied solely to juvenile delinquency
records. Indeed, these provisions have been incorporated into Article
3. See Family Court Act §§ 381.2, 381.3(2).  This measure
appropriately deletes these provisions from Family Court Act Article
7.

The need to keep records of juvenile misbehavior, both criminal and
noncriminal in nature, confidential has long been a central feature of
the juvenile justice system. As former Chief Justice Rehnquist noted,
in his concurring opinion in Smith v. Daily Mail, 443 U.S. 97, 107
(1979):

It is a hallmark of our juvenile justice system in the United States
that, virtually from its inception at the end of the last century, its
proceedings have been conducted outside of the public's full gaze and
the youths brought before our juvenile courts have been shielded from
publicity. See H. Lou, Juvenile Courts in the United States 131-133
(1927); Geis, Publicity and Juvenile Court Proceedings, 30 Rocky
Mt.L.Rev. 101, 102, 116 (1958). This insistence on confidentiality is


born of a tender concern for the welfare of the child, to hide his
youthful errors and "bury them in the graveyard of the forgotten
past.'" In re Gault, 387 U. S. 1, 387 U. S. 24-25 (1967).

This measure recognizes that non-criminal conduct, the gravamen of
PINS cases, no less than the criminal conduct that forms the basis of
juvenile delinquency proceedings, compels the protections that have
long been deemed essential to fulfilling the goals of the juvenile
justice system.

This measure, which would have no fiscal impact, would take effect 90
days after it shall have become a law.

2014 Legislative History:  Senate 6814-A (Sen. Felder) (committed to
Rules) Assembly 9916-A (M. of A. Lupardo) (Passed)

2015-S5020 (ACTIVE) - Bill Text download pdf

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

                                  5020

                       2015-2016 Regular Sessions

                            I N  S E N A T E

                             April 28, 2015
                               ___________

Introduced by Sen. FELDER -- (at request of the Office of Court Adminis-
  tration)  --  read  twice  and ordered printed, and when printed to be
  committed to the Committee on Children and Families

AN ACT to amend the  family  court  act,  in  relation  to  sealing  and
  expungement  of records in persons in need of supervision cases in the
  family court

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

  Section  1.  Section 783 of the family court act is amended to read as
follows:
  S 783. Use of [record] RECORDS in other court; SEALING AND EXPUNGEMENT
OF RECORDS.  (A) Neither the fact that a person was  before  the  family
court  under this article for a hearing nor any confession, admission or
statement made by him OR HER to the court or to any officer  thereof  in
any stage of the proceeding is admissible as evidence against him or HER
OR his OR HER interests in any other court.  [Another court, in imposing
sentence  upon  an  adult after conviction, may receive and consider the
records and information on file with the family  court  concerning  such
person when he was a child.]
  (B)  FOR PURPOSES OF THIS SECTION, "SEALING" SHALL MEAN THAT ALL OFFI-
CIAL RECORDS AND PAPERS, INCLUDING JUDGMENTS AND ORDERS  OF  THE  COURT,
BUT  NOT  INCLUDING  PUBLIC  COURT  DECISIONS OR OPINIONS OR RECORDS AND
BRIEFS  ON  APPEAL,  RELATING  TO  THE  ARREST,  PROSECUTION  AND  COURT
PROCEEDINGS  AND  RECORDS  OF  THE PROBATION SERVICE AND DESIGNATED LEAD
AGENCY, INCLUDING ALL DUPLICATES OR COPIES THEREOF,  ON  FILE  WITH  THE
COURT,  POLICE DEPARTMENT AND LAW ENFORCEMENT AGENCY, PROBATION SERVICE,
DESIGNATED  LEAD  AGENCY  AND  PRESENTMENT  AGENCY,  IF  ANY,  SHALL  BE
PROTECTED  FROM PUBLIC INSPECTION AND SHALL NOT BE MADE AVAILABLE TO ANY
PERSON OR PUBLIC OR PRIVATE AGENCY. SUCH  RECORDS  SHALL  ONLY  BE  MADE
AVAILABLE TO THE RESPONDENT OR HIS OR HER DESIGNATED AGENT.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09778-01-5

S. 5020                             2

  (C)  AUTOMATIC  SEALING  OF  A  PROCEEDING  UNDER THIS ARTICLE THAT IS
TERMINATED IN FAVOR  OF  THE  RESPONDENT.  (I)  UPON  TERMINATION  OF  A
PROCEEDING  UNDER  THIS ARTICLE IN FAVOR OF THE RESPONDENT, THE CLERK OF
THE COURT SHALL IMMEDIATELY NOTIFY  AND  DIRECT  THE  DIRECTORS  OF  THE
APPROPRIATE  PROBATION  DEPARTMENT,  DESIGNATED  LEAD AGENCY PURSUANT TO
SECTION SEVEN HUNDRED THIRTY-FIVE OF THIS ARTICLE AND, IF A  PRESENTMENT
AGENCY  REPRESENTED  THE PETITIONER IN THE PROCEEDING, SUCH AGENCY, THAT
THE PROCEEDING HAS TERMINATED IN FAVOR OF THE RESPONDENT  AND  THAT  THE
RECORDS,  IF ANY, OF SUCH ACTION OR PROCEEDING ON FILE WITH SUCH OFFICES
SHALL BE SEALED. IF THE RESPONDENT HAD BEEN THE SUBJECT OF A WARRANT  OR
AN  ARREST IN CONNECTION WITH THE PROCEEDING, OR LAW ENFORCEMENT WAS THE
REFERRING AGENCY OR PETITIONER PURSUANT TO SECTION SEVEN  HUNDRED  THIR-
TY-THREE OF THIS ARTICLE, THE NOTICE SHALL ALSO BE SENT TO THE APPROPRI-
ATE  POLICE  DEPARTMENT  OR LAW ENFORCEMENT AGENCY. UPON RECEIPT OF SUCH
NOTIFICATION, THE RECORDS SHALL BE SEALED IN ACCORDANCE WITH SUBDIVISION
(B) OF THIS SECTION. THE ATTORNEY FOR THE RESPONDENT SHALL  BE  NOTIFIED
BY  THE  CLERK  OF  THE  COURT  IN  WRITING OF THE DATE AND AGENCIES AND
DEPARTMENTS TO WHICH SUCH NOTIFICATIONS WERE SENT.
  (II) FOR THE PURPOSES OF THIS SECTION, A PROCEEDING UNDER THIS ARTICLE
SHALL BE CONSIDERED TERMINATED  IN  FAVOR  OF  A  RESPONDENT  WHERE  THE
PROCEEDING HAS BEEN:
  (A) DIVERTED PRIOR TO THE FILING OF A PETITION PURSUANT TO SUBDIVISION
(G)  OF  SECTION SEVEN HUNDRED THIRTY-FIVE OF THIS ARTICLE OR SUBSEQUENT
TO THE FILING OF A PETITION PURSUANT TO SUBDIVISION (B) OF SECTION SEVEN
HUNDRED FORTY-TWO OF THIS ARTICLE; OR
  (B) WITHDRAWN OR DISMISSED FOR FAILURE TO PROSECUTE, OR FOR ANY  OTHER
REASON AT ANY STAGE; OR
  (C)  DISMISSED  FOLLOWING AN ADJOURNMENT IN CONTEMPLATION OF DISMISSAL
PURSUANT TO SUBDIVISION (A) OF SECTION SEVEN HUNDRED FORTY-NINE OF  THIS
ARTICLE.
  (III)  IF,  WITH RESPECT TO A RESPONDENT WHO HAD BEEN THE SUBJECT OF A
WARRANT OR AN ARREST IN CONNECTION WITH THE PROCEEDING, OR LAW  ENFORCE-
MENT WAS THE REFERRING AGENCY, THE DESIGNATED LEAD AGENCY DIVERTS A CASE
EITHER  PRIOR  TO  OR  SUBSEQUENT TO THE FILING OF A PETITION UNDER THIS
ARTICLE, THE DESIGNATED LEAD AGENCY SHALL SERVE A CERTIFICATION OF  SUCH
DIVERSION  UPON  THE APPROPRIATE PROBATION SERVICE AND POLICE DEPARTMENT
OR LAW ENFORCEMENT AGENCY.  UPON  RECEIPT  OF  SUCH  CERTIFICATION,  THE
PROBATION  SERVICE AND POLICE DEPARTMENT OR LAW ENFORCEMENT AGENCY SHALL
SEAL ANY RECORDS IN ACCORDANCE WITH SUBDIVISION (B) OF THIS  SECTION  IN
THE  SAME MANNER AS IS REQUIRED THEREUNDER WITH RESPECT TO AN ORDER OF A
COURT.
  (IV) IF, FOLLOWING THE REFERRAL OF A PROCEEDING UNDER THIS ARTICLE FOR
THE FILING OF A  PETITION,  THE  PETITIONER  OR,  IF  REPRESENTED  BY  A
PRESENTMENT  AGENCY,  SUCH  AGENCY,  ELECTS NOT TO FILE A PETITION UNDER
THIS ARTICLE, THE PETITIONER OR, IF APPLICABLE, THE PRESENTMENT  AGENCY,
SHALL  SERVE  A CERTIFICATION OF SUCH DETERMINATION UPON THE APPROPRIATE
PROBATION SERVICE AND DESIGNATED LEAD AGENCY. IF THE RESPONDENT HAD BEEN
THE SUBJECT OF A WARRANT OR AN ARREST IN CONNECTION WITH THE PROCEEDING,
OR LAW ENFORCEMENT WAS THE REFERRING  AGENCY,  THE  CERTIFICATION  SHALL
ALSO  BE  SENT  TO  THE APPROPRIATE POLICE DEPARTMENT OR LAW ENFORCEMENT
AGENCY. UPON RECEIPT OF SUCH CERTIFICATION, THE RECORDS SHALL BE  SEALED
IN ACCORDANCE WITH SUBDIVISION (B) OF THIS SECTION IN THE SAME MANNER AS
IS REQUIRED THEREUNDER WITH RESPECT TO AN ORDER OF A COURT.
  (V)  A  RESPONDENT IN WHOSE FAVOR A PROCEEDING WAS TERMINATED PRIOR TO
THE EFFECTIVE DATE OF THE CHAPTER OF THE LAWS OF  TWO  THOUSAND  FIFTEEN
WHICH  ADDED  THIS  PARAGRAPH MAY, UPON MOTION, APPLY TO THE COURT, UPON

S. 5020                             3

NOT LESS THAN TWENTY DAYS NOTICE TO THE PETITIONER OR (WHERE  THE  PETI-
TIONER IS REPRESENTED BY A PRESENTMENT AGENCY) SUCH AGENCY, FOR AN ORDER
GRANTING  THE  RELIEF  SET  FORTH  IN PARAGRAPH (I) OF THIS SUBDIVISION.
WHERE  A  PROCEEDING  UNDER  THIS ARTICLE WAS TERMINATED IN FAVOR OF THE
RESPONDENT IN ACCORDANCE WITH PARAGRAPH (III) OR (IV) OF  THIS  SUBDIVI-
SION PRIOR TO THE EFFECTIVE DATE OF THE CHAPTER OF THE LAWS OF TWO THOU-
SAND FIFTEEN WHICH ADDED THIS PARAGRAPH, THE RESPONDENT MAY APPLY TO THE
DESIGNATED LEAD AGENCY, PETITIONER OR PRESENTMENT AGENCY, AS APPLICABLE,
FOR  A CERTIFICATION AS DESCRIBED IN SUCH PARAGRAPHS GRANTING THE RELIEF
SET FORTH THEREIN AND SUCH CERTIFICATION SHALL BE GRANTED.
  (D) MOTION TO SEAL AFTER AN ADJUDICATION AND DISPOSITION.  (I)  IF  AN
ACTION  HAS RESULTED IN AN ADJUDICATION AND DISPOSITION UNDER THIS ARTI-
CLE, THE COURT MAY, IN THE INTEREST OF JUSTICE AND UPON  MOTION  OF  THE
RESPONDENT, ORDER THE SEALING OF THE RECORDS AND PROCEEDINGS.
  (II)  SUCH  MOTION  MUST  BE  IN  WRITING AND MAY BE FILED AT ANY TIME
SUBSEQUENT TO THE CONCLUSION OF  THE  DISPOSITION,  INCLUDING,  BUT  NOT
LIMITED  TO,  THE EXPIRATION OF THE PERIOD OF PLACEMENT, SUSPENDED JUDG-
MENT, ORDER OF PROTECTION OR PROBATION OR ANY EXTENSION THEREOF.  NOTICE
OF  SUCH  MOTION  SHALL  BE SERVED NOT LESS THAN EIGHT DAYS PRIOR TO THE
RETURN DATE OF THE MOTION UPON THE PETITIONER OR, IF THE PETITIONER  WAS
REPRESENTED  BY  A PRESENTMENT AGENCY, SUCH AGENCY. ANSWERING AFFIDAVITS
SHALL BE SERVED AT LEAST TWO DAYS BEFORE THE RETURN DATE.
  (III) THE COURT SHALL SET FORTH IN A WRITTEN  ORDER  ITS  REASONS  FOR
GRANTING  OR  DENYING  THE  MOTION.  IF THE COURT GRANTS THE MOTION, ALL
COURT RECORDS, AS WELL AS ALL RECORDS IN THE POSSESSION  OF  THE  DESIG-
NATED  LEAD  AGENCY,  THE  PROBATION SERVICE, THE PRESENTMENT AGENCY, IF
ANY, AND, IF THE RESPONDENT HAD BEEN THE SUBJECT  OF  A  WARRANT  OR  AN
ARREST  IN  CONNECTION  WITH  THE  PROCEEDING,  OR  IF THE POLICE OR LAW
ENFORCEMENT AGENCY WAS THE REFERRING AGENCY OR  PETITIONER  PURSUANT  TO
SECTION  SEVEN  HUNDRED  THIRTY-THREE  OF  THIS ARTICLE, THE APPROPRIATE
POLICE OR LAW ENFORCEMENT AGENCY, SHALL BE  SEALED  IN  ACCORDANCE  WITH
SUBDIVISION (B) OF THIS SECTION.
  (E)  EXPUNGEMENT  OF  COURT RECORDS. NOTHING CONTAINED IN THIS ARTICLE
SHALL PRECLUDE THE COURT'S USE  OF  ITS  INHERENT  POWER  TO  ORDER  THE
EXPUNGEMENT OF COURT RECORDS.
  S  2.  Section  784  of  the  family  court  act is amended to read as
follows:
  S 784. Use of police records.  All  police  records  relating  to  the
arrest and disposition of any person under this article shall be kept in
files  separate  and apart from the arrests of adults and shall be with-
held  from  public  inspection,  but  such  records  shall  be  open  to
inspection upon good cause shown by the parent, guardian, next friend or
attorney  of that person upon the written order of a judge of the family
court in the county in which the order was made [or, if  the  person  is
subsequently  convicted  of a crime, of a judge of the court in which he
was convicted].
  S 3. This act shall take effect on the ninetieth day  after  it  shall
have become a law.

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