The New York State Senate

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

                                 5593--A

                       2015-2016 Regular Sessions

                            I N  S E N A T E

                              May 15, 2015
                               ___________

Introduced  by  Sens.  HASSELL-THOMPSON,  HAMILTON, KRUEGER, MONTGOMERY,
  PARKER, PERKINS, SANDERS -- read twice and ordered printed,  and  when
  printed  to  be  committed to the Committee on Codes -- recommitted to
  the Committee on Codes in accordance with Senate Rule  6,  sec.  8  --
  committee  discharged,  bill amended, ordered reprinted as amended and
  recommitted to said committee

AN ACT to amend the criminal procedure law and  the  executive  law,  in
  relation  to  permitting  the sealing of records of certain nonviolent
  misdemeanor or non-sexual misdemeanor offenses

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

  Section  1.  This  act  shall be known and may be cited as the "second
chance for ex-offenders act".
  S 2. The criminal procedure law is amended by  adding  a  new  section
160.65 to read as follows:
S 160.65 CONDITIONAL SEALING OF CERTAIN MISDEMEANOR OFFENSES.
  1.  FOR  THE PURPOSES OF THIS SECTION, THE TERM "ELIGIBLE MISDEMEANOR"
SHALL BE A MISDEMEANOR OFFENSE DEFINED IN THE PENAL LAW,  PROVIDED  THAT
AN  ELIGIBLE  MISDEMEANOR  SHALL  NOT INCLUDE ANY SEX OFFENSE AS DEFINED
UNDER SUBDIVISION TWO  OF  SECTION  ONE  HUNDRED  SIXTY-EIGHT-A  OF  THE
CORRECTION LAW.
  2.  A  PERSON HAVING A CONVICTION FOR NO MORE THAN THREE MISDEMEANORS,
WHO DOES NOT STAND CONVICTED OF ANY FELONY, OR WHO IS  NOT  REQUIRED  TO
MAINTAIN  REGISTRATION  UNDER  ARTICLE  SIX-C OF THE CORRECTION LAW, MAY
PETITION THE COURT TO CONDITIONALLY SEAL UP TO THREE ELIGIBLE  MISDEMEA-
NORS WHEN:
  (A) AT LEAST FIVE YEARS HAVE PASSED SINCE THE COMPLETION OF A SENTENCE
ON AN ELIGIBLE MISDEMEANOR; AND
  (B) SUCH PERSON HAS NOT BEEN CONVICTED OF A CRIME DURING THE LAST FIVE
YEARS AND IS NOT THE SUBJECT OF AN UNDISPOSED ARREST.
  3. THE PETITION AUTHORIZED BY THIS SECTION SHALL BE FILED IN THE COURT
OF  RECORD  THAT LAST IMPOSED A SENTENCE UPON PETITIONER FOR AN ELIGIBLE
MISDEMEANOR. ON THE DEFENDANT'S MOTION, THE COURT  MAY  ORDER  THAT  ALL
OFFICIAL  RECORDS  AND  PAPERS  RELATING  TO THE ARREST, PROSECUTION AND

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD02961-04-6

S. 5593--A                          2

CONVICTION RECORDS FOR NO MORE  THAN  THREE  OF  THE  DEFENDANT'S  PRIOR
ELIGIBLE  MISDEMEANORS BE CONDITIONALLY SEALED.  THE COURT MAY ONLY SEAL
THE RECORDS OF THE DEFENDANT'S  ARRESTS,  PROSECUTIONS  AND  CONVICTIONS
WHEN:
  (A)  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;
  (B)  THE  DEFENDANT OR COURT HAS IDENTIFIED THE MISDEMEANOR CONVICTION
OR CONVICTIONS FOR WHICH RELIEF MAY BE GRANTED;
  (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. 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
FINANCIAL  INJURY  TO  PERSON  OR  TO PROPERTY AS A DIRECT RESULT OF THE
MISDEMEANOR CRIME OR MISDEMEANOR CRIMES FOR WHICH SEALING IS APPLIED.
  4. 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;
  (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.
  5. AFTER A COURT DECLARES ITS WILLINGNESS  TO  GRANT  THE  DEFENDANT'S
REQUEST FOR CONDITIONAL SEALING PURSUANT TO THIS SECTION, BUT BEFORE THE

S. 5593--A                          3

COURT ORDERS SEALING PURSUANT TO THIS SECTION, THE DEFENDANT SHALL PAY A
MANDATORY CONDITIONAL SEALING FEE. THE MANDATORY CONDITIONAL SEALING FEE
WILL  BE  A  FEE  OF  EIGHTY  DOLLARS, HOWEVER, SUCH FILING FEE SHALL BE
WAIVED  IN CASES OF INDIGENCE. THE MANDATORY FILING FEE SHALL BE PAID TO
THE CLERK OF THE COURT OR  ADMINISTRATIVE  TRIBUNAL  THAT  RENDERED  THE
CONVICTION.  WITHIN THE FIRST TEN DAYS OF THE MONTH FOLLOWING COLLECTION
OF THE MANDATORY FILING FEE, THE COLLECTING AUTHORITY IF IT IS AN ADMIN-
ISTRATIVE TRIBUNAL, OR A TOWN OR VILLAGE JUSTICE COURT, SHALL  THEN  PAY
SUCH  MONEY TO THE STATE COMPTROLLER WHO SHALL DEPOSIT SUCH MONEY IN THE
STATE TREASURY PURSUANT TO SECTION ONE HUNDRED TWENTY-ONE OF  THE  STATE
FINANCE  LAW  TO THE CREDIT OF THE INDIGENT LEGAL SERVICES FUND. IF SUCH
COLLECTING AUTHORITY IS ANY OTHER COURT OF THE UNIFIED COURT SYSTEM,  IT
SHALL,  WITHIN SUCH PERIOD, PAY SUCH MONEY ATTRIBUTABLE TO THE MANDATORY
FILING FEE TO THE STATE COMMISSIONER OF  TAXATION  AND  FINANCE  TO  THE
CREDIT  OF THE INDIGENT LEGAL SERVICES FUND ESTABLISHED BY SECTION NINE-
TY-EIGHT-B OF THE STATE FINANCE LAW.
  6. 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.
  7. 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.
  8. RECORDS SEALED PURSUANT TO THIS SUBDIVISION 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; OR
  (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.
  9.  THE  COURT  SHALL NOT SEAL THE DEFENDANT'S RECORD PURSUANT TO THIS
SECTION WHILE ANY CHARGED OFFENSE IS PENDING.
  10. IF, SUBSEQUENT TO THE SEALING OF RECORDS PURSUANT TO THIS SUBDIVI-
SION, THE PERSON WHO IS THE SUBJECT OF SUCH RECORDS IS ARRESTED  FOR  OR
FORMALLY  CHARGED  WITH  ANY MISDEMEANOR OR FELONY OFFENSE, SUCH RECORDS
SHALL BE UNSEALED IMMEDIATELY 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 CONVICTION FOR A NON-CRIMINAL OFFENSE AS

S. 5593--A                          4

DESCRIBED IN SECTION 160.55 OF THIS ARTICLE, SUCH UNSEALED RECORDS SHALL
BE CONDITIONALLY SEALED PURSUANT TO THIS SECTION.
  11.  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 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
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 WHICH IS SEALED PURSU-
ANT  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,  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  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  regu-
lation  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  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, OR BY A CONVICTION WHICH IS SEALED  PURSUANT  TO  SECTION
160.65 OF THE CRIMINAL PROCEDURE LAW.
  S 4. This act shall take effect on the one hundred eightieth day after
it  shall have become a law and shall apply to all convictions occurring
prior to, on, and after such date.