NY State Senate Bill 2015-S8113

Archive: Last Bill Status - In Senate Committee Rules 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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Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jun 13, 2016	referred to rules

2015-S8113 (ACTIVE) - Details

See Assembly Version of this Bill:: A10710
Current Committee:: Senate Rules
Law Section:: Criminal Procedure Law
Laws Affected:: Add §160.59, CP L; amd §296, add §845-c, Exec L; amd §212, Judy L

2015-S8113 (ACTIVE) - Summary

Relates to the sealing of certain convictions; defines terms; relates to criminal history record searches and references to undisposed cases; directs the commissioner of criminal justice services to direct that certain records of any action or proceeding terminated be sealed

2015-S8113 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S8113

 TITLE OF BILL :  An act to amend the criminal procedure law and the
executive law, in relation to sealing of certain convictions (Part A);
to amend the executive law and the judiciary law, in relation to
certain criminal history record searches (Part B); and to direct the
commissioner of the division of criminal justice services to seal
certain records (Part C)

 PURPOSE OF THE BILL :

This bill would allow a defendant to apply to a sentencing court to
seal certain convictions, for purposes of a civil (e.g.
pre-employment) background check only, after ten years of that
defendant living crime free. Additionally, this bill requires the
Division of Criminal Justice Services (DCJS) and the Office of Court
Administration (OCA) to suppress undisposed case information on
criminal history records for civil background checks. In both
instances, the sealing provision and the suppression of undisposed
cases, will not apply to law enforcement agencies and district
attorney offices. This bill would also authorize DCJS to seal records
of actions terminated in favor of a defendant or terminated by a
conviction for a non-criminal offense prior to November 1, 1991.

 SUMMARY OF PROVISIONS OF THE BILL :

Section one of the bill enacts into law major components of
legislation contained in Parts A, B and C.

Section one of Part A of the bill adds a new CPL 160.59 to authorize a
court to seal up to two but not more than one eligible felony
convictions for purposes of a civil background check. A conviction
would not be eligible for sealing under this new provision if the
defendant stands convicted of a sex offense, a child pornography
offense, a homicide offense, a violent felony offense, a class A
felony; previously had the maximum number of convictions sealed or
conditionally sealed; is required to register as a sex offender or is
currently charged with a crime. A conviction would not be eligible for
sealing until at least 10 years have passed since the time of
conviction, excluding any periods of incarceration. Such sealed
records would still be available to law enforcement, prosecutors, a
firearms licensing officer, or a prospective employer of a peace or
police officer.

Section two of Part A of the bill amends the Executive Law § 296(16)
to make the use of a conviction sealed pursuant to CPL 160.59 in
connection with employment or licensing an unlawful discriminatory
act.

Section three of Part A of the bill provides for an effective date of
180 days following enactment.

Section one of Part B of the bill adds a new section 845-c to the
Executive Law to prohibit DCJS from including undisposed case
information on criminal history records (i.e., rapsheets) where the
record is produced for a non-law enforcement or non-criminal justice
purpose (e.g. a pre-employment criminal history record search). The
bill defines an "undisposed case" as: (i) a criminal action or
proceeding or an arrest incident that appears on an individual's
criminal history record for which no final disposition or imposition
of sentence has been recorded; (ii) no entry has been made on the DCJS
record on that criminal action for a period of at least five years;
and (iii) for which no warrant is outstanding.



Section two of Part B of the bill adds new paragraph (s) to
subdivision two of section 212 of the Judiciary Law to establish a
corresponding requirement and stipulations for OCA.

Section three of Part B of the bill provides for an effective date of
180 days following enactment.

Section one of Part C of the bill authorizes DCJS to direct that
records of criminal proceedings terminated in favor of the accused or
by conviction for a non-criminal offense between September 1, 1976 and
November 1, 1991 be sealed in the manner set forth in CPL 160.50 and
160.55, respectively.

Section two of Part C of the bill provides for an effective date of
180 days following enactment.

Section two of the bill is a severability clause.

Section three of the bill provides for an immediate effective date,
provided, however, that Parts A though C of the bill are effective as
stated therein.

 EXISTING LAW :

Currently convictions and undisposed cases are provided to individuals
and entities authorized to conduct a fingerprint based background
check for employment and licensing. Criminal proceedings terminated in
favor of the accused or by conviction for a non-criminal offense
between September 1, 1976 and November 1, 1991 are not automatically
sealed.

 STATEMENT IN SUPPORT :

A number of laws authorize prospective employers to obtain a criminal
history background check. Many individuals seeking employment will be
barred from certain positions simply because they committed a
low-level offense in their past. While State law prohibits employment
discrimination due to a prior criminal conviction unless there is a
direct relationship between the crime of conviction and the employment
sought or a threat to the safety of a specific individual or the
public, it is often difficult for a person to prove that he or she was
passed over for employment due to a past conviction instead of some
other non-discriminatory reason. Allowing a person to apply for the
sealing of up to two low-level offenses will assist in the employment
efforts of a person who has turned their life around and has
demonstrated that over a significant period of time. The records
sealed under this section would be sealed only in conjunction with a
civil background check. Police, courts and prosecutors would continue
to be provided with the entire criminal history, including records
sealed under this bill.

Additionally, although current law provides for the sealing of certain
criminal records, in some cases administrative breakdowns occur,
leaving information about cases that have terminated in a person's
favor, or have been filed in court but never brought to any final
disposition, open on a person's permanent criminal history record
maintained by DCJS. Attempts to correct these errors and eliminate
such case references often prove unsuccessful because no information
about the cases is available, either because the parties involved no
longer have records, because no records have been generated due to the
preliminary nature of the case, or because the case in question has
been deemed dismissed by another court as a result of action taken in
an entirely separate case.

In an age where the criminal history background check is almost
universal, New York's sealing laws act as a guard against illegal
work-place discrimination by preventing the inappropriate disclosure
or use by employers or licensing agencies of records of arrest that
resulted either in a violation (non-criminal) conviction (CPL 160.55)
or were terminated in a person's favor (CPL 160.50).  However, the
sealing laws are only effective if the various entities in the
criminal justice system effectively communicate with each other.
Pursuant to the CPL, the clerk of a court is responsible for reporting
to DCJS that a criminal action terminated in a person's favor. DCJS is
sometimes not notified as required. Thus, some records at DCJS remain
"open" for an extended period of time. Because DCJS has no authority
to complete the records without information being provided to it from
the relevant agency, these inaccuracies, in effect, can become a
permanent part of an individual's criminal record.

In situations where a case has been terminated in a person's favor,
the original records may have been destroyed. As a result, persons
with inaccuracies on their criminal history records are in limbo:
they cannot contest inaccurate or incomplete information on their
criminal history record if the necessary original records have been
purged or are otherwise unavailable or incomplete. This may result in
such persons losing the protections they may be entitled to under New
York State's sealing laws and the Federal and New York State Fair
Credit Reporting Acts.

This bill would require DCJS and OCA to suppress "undisposed case"
information, as defined by the bill, in any report of a criminal
history search conducted by them and provided for employment or
licensing reasons. Where the report is produced by DCJS for a
"qualified agency," or a federal law enforcement agency, for a
criminal justice purpose, or by DCJS or OCA for research, record
review, or internal record keeping purposes, those undisposed cases
will remain visible. The District Attorney with jurisdiction over the
case will be notified that the case is considered "undisposed" and
will have an opportunity to provide DCJS with information showing that
a prosecution is still pending. This provision will assist individuals
in obtaining gainful employment by suppressing possible inaccurate
information contained on a rap sheet while still allowing such
information to be released to law enforcement, courts, and
prosecutors.

An additional impediment to employment is faced by persons who were
arrested and whose cases were either terminated in their favor or
resulted in a non-criminal disposition. Starting in 1976, the Criminal
Procedure Law (CPL) authorized a court to seal such cases.  However,
prior to November 1, 1991, it was necessary for the defendant to make
a motion to request sealing. Many defendants neglected to do so. In
1991, the Legislature amended the CPL to authorize automatic sealing
by DCJS upon the receipt of a disposition in the defendant's favor or
a conviction for a violation or an infraction. However, this amendment
was not made retroactive. As a result, those pre-1991 defendants with
an arrest or an unsealed event that result in termination in their
favor, may face difficulties in obtaining employment because an
employer has learned of that event.  Making a motion to seal a case
that is several decades old can be burdensome. This bill would allow
DCJS to automatically seal these old cases, putting such defendant on
an equal footing with current persons who are acquitted or have their
cases dismissed.

This bill would effectively address current systemic deficiencies and
would help to ensure the accuracy and integrity of the criminal
history record keeping system in New York State. In addition, it would
permit persons who have made up to two low-level mistakes the ability
to have their record sealed for civil inquiries. Altogether this bill
would enhance the economy of the State by helping citizens to find and
maintain employment free from the impediments imposed by faulty data
or one mistake which led to a low level conviction.
 BUDGET IMPLICATIONS :

None.

 EFFECTIVE DATE :
This act shall take effect immediately, provided, however, that the
applicable effective date of Parts A through C of this act shall be as
specifically set forth in the last section of such Parts.

2015-S8113 (ACTIVE) - Bill Text download pdf

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

                                  8113

                            I N  S E N A T E

                              June 13, 2016
                               ___________

Introduced  by Sen. GALLIVAN -- read twice and ordered printed, and when
  printed to be committed to the Committee on Rules

AN ACT to amend the criminal procedure law and  the  executive  law,  in
  relation  to  sealing  of  certain  convictions (Part A); to amend the
  executive law and the judiciary law, in relation to  certain  criminal
  history  record  searches  (Part B); and to direct the commissioner of
  the division of criminal justice  services  to  seal  certain  records
  (Part C)

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

  Section 1. This act enacts into law major components  of  legislation.
Each  component  is  wholly  contained with a Part identified as Parts A
through C. The effective date for each  particular  provision  contained
within  such  Part  is  set  forth in the last section of such Part. Any
provision in any section contained within a Part, including  the  effec-
tive date of the Part, which makes reference to a section "of this act",
when  used in connection with that particular component, shall be deemed
to mean and refer to the corresponding section of the Part in  which  it
is  found.  Section  three  of this act sets forth the general effective
date of this act.

                                 PART A

  Section 1. The criminal procedure law  is  amended  by  adding  a  new
section 160.59 to read as follows:
S 160.59 SEALING OF CERTAIN CONVICTIONS.
  1.  DEFINITIONS:  AS  USED  IN THIS SECTION, THE FOLLOWING TERMS SHALL
HAVE THE FOLLOWING MEANINGS;
  (A) "ELIGIBLE OFFENSE" SHALL MEAN ANY CRIME DEFINED  IN  THE  LAWS  OF
THIS STATE OTHER THAN A SEX OFFENSE DEFINED IN ARTICLE ONE HUNDRED THIR-
TY  OF  THE  PENAL  LAW,  AN  OFFENSE  DEFINED  IN  ARTICLE  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

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

                                                           LBD15862-02-6

S. 8113                             2

THE  PENAL  LAW, A FELONY OFFENSE DEFINED IN ARTICLE ONE HUNDRED FIVE OF
THE PENAL LAW WHERE THE UNDERLYING OFFENSE IS NOT AN  ELIGIBLE  OFFENSE,
AN  ATTEMPT  TO COMMIT AN OFFENSE THAT IS NOT AN ELIGIBLE OFFENSE IF THE
ATTEMPT  IS  A  FELONY,  OR  AN  OFFENSE FOR WHICH REGISTRATION AS A SEX
OFFENDER IS REQUIRED PURSUANT TO ARTICLE SIX-C OF THE CORRECTION LAW.
  (B) "SENTENCING JUDGE" SHALL MEAN THE JUDGE  WHO  PRONOUNCED  SENTENCE
UPON  THE  CONVICTION UNDER CONSIDERATION, OR IF THAT JUDGE IS NO LONGER
SITTING IN A COURT IN THE  JURISDICTION  IN  WHICH  THE  CONVICTION  WAS
OBTAINED, ANY OTHER JUDGE WHO IS SITTING IN THE CRIMINAL COURT WHERE THE
JUDGMENT OF CONVICTION WAS ENTERED.
  2.  (A)  A  DEFENDANT  WHO  HAS  BEEN  CONVICTED OF UP TO TWO ELIGIBLE
OFFENSES BUT NOT MORE THAN ONE FELONY OFFENSE MAY APPLY TO THE COURT  IN
WHICH  HE  OR SHE WAS CONVICTED OF THE MOST SERIOUS OFFENSE TO HAVE SUCH
CONVICTION SEALED. IF ALL OFFENSES ARE OFFENSES WITH  THE  SAME  CLASSI-
FICATION,  THE  APPLICATION  SHALL  BE  MADE  TO  THE COURT IN WHICH THE
DEFENDANT WAS LAST CONVICTED.
  (B) AN APPLICATION SHALL CONTAIN: (I)  A  COPY  OF  A  CERTIFICATE  OF
DISPOSITION OR OTHER SIMILAR DOCUMENTATION FOR ANY OFFENSE FOR WHICH THE
DEFENDANT  HAS BEEN CONVICTED, OR AN EXPLANATION OF WHY SUCH CERTIFICATE
OR OTHER DOCUMENTATION IS NOT AVAILABLE; (II) A SWORN STATEMENT  OF  THE
DEFENDANT  AS  TO  WHETHER HE OR SHE HAS FILED, OR THEN INTENDS TO FILE,
ANY APPLICATION FOR SEALING OF ANY OTHER ELIGIBLE OFFENSE; (III) A  COPY
OF  ANY  OTHER SUCH APPLICATION THAT HAS BEEN FILED; (IV) A SWORN STATE-
MENT AS TO THE CONVICTION OR  CONVICTIONS  FOR  WHICH  RELIEF  IS  BEING
SOUGHT; AND (V) A SWORN STATEMENT OF THE REASON OR REASONS WHY THE COURT
SHOULD, IN ITS DISCRETION, GRANT SUCH SEALING, ALONG WITH ANY SUPPORTING
DOCUMENTATION.
  (C)  A  COPY  OF ANY APPLICATION FOR SUCH SEALING SHALL BE SERVED UPON
THE DISTRICT ATTORNEY OF THE COUNTY IN WHICH THE CONVICTION, OR, IF MORE
THAN ONE, THE CONVICTIONS, WAS OR WERE OBTAINED. THE  DISTRICT  ATTORNEY
SHALL  NOTIFY  THE  COURT WITHIN FORTY-FIVE DAYS IF HE OR SHE OBJECTS TO
THE APPLICATION FOR SEALING.
  (D) WHEN SUCH APPLICATION  IS  FILED  WITH  THE  COURT,  IT  SHALL  BE
ASSIGNED  TO  THE  SENTENCING  JUDGE UNLESS MORE THAN ONE APPLICATION IS
FILED IN WHICH CASE THE APPLICATION SHALL  BE  ASSIGNED  TO  THE  COUNTY
COURT  OR THE SUPREME COURT OF THE COUNTY IN WHICH THE CRIMINAL COURT IS
LOCATED, WHO SHALL REQUEST AND RECEIVE FROM  THE  DIVISION  OF  CRIMINAL
JUSTICE  SERVICES  A  FINGERPRINT  BASED  CRIMINAL HISTORY RECORD OF THE
DEFENDANT, INCLUDING ANY SEALED OR SUPPRESSED RECORDS. THE  DIVISION  OF
CRIMINAL  JUSTICE SERVICES ALSO SHALL INCLUDE A CRIMINAL HISTORY REPORT,
IF ANY, FROM THE FEDERAL BUREAU OF INVESTIGATION REGARDING ANY  CRIMINAL
HISTORY  INFORMATION THAT OCCURRED IN OTHER JURISDICTIONS.  THE DIVISION
IS HEREBY AUTHORIZED TO RECEIVE SUCH INFORMATION FROM THE FEDERAL BUREAU
OF INVESTIGATION FOR THIS PURPOSE, AND TO MAKE SUCH  INFORMATION  AVAIL-
ABLE  TO  THE  COURT,  WHICH  MAY MAKE THIS INFORMATION AVAILABLE TO THE
DISTRICT ATTORNEY AND THE DEFENDANT.
  3. THE SENTENCING JUDGE, OR COUNTY OR SUPREME  COURT  SHALL  SUMMARILY
DENY THE DEFENDANT'S APPLICATION WHEN:
  (A)  THE  DEFENDANT IS REQUIRED TO REGISTER AS A SEX OFFENDER PURSUANT
TO ARTICLE SIX-C OF THE CORRECTION LAW; OR
  (B) THE DEFENDANT HAS  PREVIOUSLY  OBTAINED  SEALING  OF  THE  MAXIMUM
NUMBER  OF  CONVICTIONS  ALLOWABLE  UNDER SECTION 160.58 OF THE CRIMINAL
PROCEDURE LAW; OR
  (C) THE DEFENDANT HAS  PREVIOUSLY  OBTAINED  SEALING  OF  THE  MAXIMUM
NUMBER  OF CONVICTIONS ALLOWABLE UNDER SUBDIVISION FOUR OF THIS SECTION;
OR

S. 8113                             3

  (D) THE TIME PERIOD SPECIFIED IN SUBDIVISION FIVE OF THIS SECTION  HAS
NOT YET BEEN SATISFIED; OR
  (E) THE DEFENDANT HAS AN UNDISPOSED ARREST OR CHARGE PENDING; OR
  (F)  THE  DEFENDANT  WAS  CONVICTED OF ANY CRIME AFTER THE DATE OF THE
IMPOSITION OF THE SENTENCE ON  THE  DEFENDANT'S  LATEST  CONVICTION  FOR
WHICH SEALING IS SOUGHT; OR
  (G)  THE  DEFENDANT  HAS FAILED TO PROVIDE THE COURT WITH THE REQUIRED
SWORN STATEMENT OF THE REASONS WHY THE COURT  SHOULD  GRANT  THE  RELIEF
REQUESTED; OR
  (H)  THE  DEFENDANT HAS BEEN CONVICTED OF TWO OR MORE FELONIES OR MORE
THAN TWO CRIMES.
  4. PROVIDED THAT THE APPLICATION  IS  NOT  SUMMARILY  DENIED  FOR  THE
REASONS  SET FORTH IN SUBDIVISION THREE OF THIS SECTION, A DEFENDANT WHO
STANDS CONVICTED OF UP TO TWO ELIGIBLE OFFENSES, MAY OBTAIN  SEALING  OF
NO MORE THAN TWO ELIGIBLE OFFENSES BUT NOT MORE THAN ONE FELONY OFFENSE.
  5.  ANY  ELIGIBLE  OFFENSE MAY BE SEALED ONLY AFTER AT LEAST TEN YEARS
HAVE PASSED SINCE THE IMPOSITION OF  THE  SENTENCE  ON  THE  DEFENDANT'S
LATEST  CONVICTION,  OR,  IF  THE DEFENDANT WAS SENTENCED TO A PERIOD OF
INCARCERATION, INCLUDING A PERIOD OF INCARCERATION IMPOSED  IN  CONJUNC-
TION  WITH  A SENTENCE OF PROBATION, THE DEFENDANT'S LATEST RELEASE FROM
INCARCERATION. IN CALCULATING THE TEN YEAR PERIOD  UNDER  THIS  SUBDIVI-
SION,  ANY  PERIOD  OF  TIME  THE DEFENDANT SPENT INCARCERATED AFTER THE
CONVICTION FOR WHICH THE APPLICATION FOR SEALING  IS  SOUGHT,  SHALL  BE
EXCLUDED AND SUCH TEN YEAR PERIOD SHALL BE EXTENDED BY A PERIOD OR PERI-
ODS EQUAL TO THE TIME SERVED UNDER SUCH INCARCERATION.
  6.  UPON  DETERMINING THAT THE APPLICATION IS NOT SUBJECT TO MANDATORY
DENIAL PURSUANT TO SUBDIVISION THREE OF THIS SECTION AND THAT THE APPLI-
CATION IS OPPOSED BY THE DISTRICT  ATTORNEY,  THE  SENTENCING  JUDGE  OR
COUNTY  OR  SUPREME  COURT SHALL CONDUCT A HEARING ON THE APPLICATION IN
ORDER TO CONSIDER ANY EVIDENCE OFFERED BY EITHER PARTY  THAT  WOULD  AID
THE  SENTENCING JUDGE IN HIS OR HER DECISION WHETHER TO SEAL THE RECORDS
OF THE DEFENDANT'S CONVICTIONS. NO HEARING IS REQUIRED IF  THE  DISTRICT
ATTORNEY  DOES  NOT OPPOSE THE APPLICATION, HOWEVER THE COURT MAY HOLD A
HEARING AT ITS DISCRETION.
  7. IN CONSIDERING ANY SUCH APPLICATION, THE SENTENCING JUDGE OR COUNTY
OR SUPREME COURT SHALL CONSIDER ANY RELEVANT FACTORS, INCLUDING BUT  NOT
LIMITED TO:
  (A)  THE  AMOUNT  OF  TIME THAT HAS ELAPSED SINCE THE DEFENDANT'S LAST
CONVICTION;
  (B) THE CIRCUMSTANCES AND SERIOUSNESS OF THE  OFFENSE  FOR  WHICH  THE
DEFENDANT IS SEEKING RELIEF, INCLUDING WHETHER THE ARREST CHARGE WAS NOT
AN ELIGIBLE OFFENSE;
  (C)  THE CIRCUMSTANCES AND SERIOUSNESS OF ANY OTHER OFFENSES FOR WHICH
THE DEFENDANT STANDS CONVICTED;
  (D) THE CHARACTER OF THE DEFENDANT, INCLUDING ANY  MEASURES  THAT  THE
DEFENDANT  HAS  TAKEN  TOWARD  REHABILITATION,  SUCH AS PARTICIPATING IN
TREATMENT PROGRAMS, WORK, OR SCHOOLING, AND PARTICIPATING  IN  COMMUNITY
SERVICE OR OTHER VOLUNTEER PROGRAMS;
  (E)  ANY  STATEMENTS  MADE  BY THE VICTIM OF THE OFFENSE FOR WHICH THE
DEFENDANT IS SEEKING RELIEF;
  (F) THE IMPACT OF SEALING THE DEFENDANT'S RECORD UPON HIS OR HER REHA-
BILITATION AND UPON HIS OR HER SUCCESSFUL  AND  PRODUCTIVE  REENTRY  AND
REINTEGRATION INTO SOCIETY; AND
  (G)  THE IMPACT OF SEALING THE DEFENDANT'S RECORD ON PUBLIC SAFETY AND
UPON THE PUBLIC'S CONFIDENCE IN AND RESPECT FOR THE LAW.

S. 8113                             4

  8. WHEN A SENTENCING JUDGE OR COUNTY OR SUPREME 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 EXCEPT AS PROVIDED FOR IN SUBDIVISION  NINE  OF
THIS  SECTION;  PROVIDED, HOWEVER, THE DIVISION SHALL RETAIN ANY FINGER-
PRINTS, PALMPRINTS AND PHOTOGRAPHS, OR DIGITAL IMAGES OF THE  SAME.  THE
CLERK  OF  SUCH  COURT  SHALL IMMEDIATELY NOTIFY THE COMMISSIONER OF THE
DIVISION OF CRIMINAL JUSTICE SERVICES REGARDING THE RECORDS  THAT  SHALL
BE  SEALED  PURSUANT  TO  THIS  SECTION. THE CLERK ALSO SHALL NOTIFY ANY
COURT IN WHICH THE DEFENDANT HAS STATED, PURSUANT TO  PARAGRAPH  (B)  OF
SUBDIVISION  TWO OF THIS SECTION, THAT HE OR SHE HAS FILED OR INTENDS TO
FILE AN APPLICATION FOR SEALING OF ANY OTHER ELIGIBLE OFFENSE.
  9. RECORDS SEALED PURSUANT TO THIS SECTION SHALL BE MADE AVAILABLE TO:
  (A) THE DEFENDANT OR THE DEFENDANT'S DESIGNATED AGENT; OR
  (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; OR
  (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; 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).
  10.  A CONVICTION WHICH IS SEALED PURSUANT TO THIS SECTION IS INCLUDED
WITHIN THE DEFINITION OF A CONVICTION FOR THE PURPOSES OF  ANY  CRIMINAL
PROCEEDING  IN  WHICH  THE  FACT  OF  A PRIOR CONVICTION WOULD ENHANCE A
PENALTY OR IS AN ELEMENT OF THE OFFENSE CHARGED.
  11. NO DEFENDANT SHALL BE REQUIRED OR PERMITTED TO  WAIVE  ELIGIBILITY
FOR  SEALING  PURSUANT  TO  THIS  SECTION  AS  PART OF A PLEA OF GUILTY,
SENTENCE OR ANY AGREEMENT  RELATED  TO  A  CONVICTION  FOR  AN  ELIGIBLE
OFFENSE AND ANY SUCH WAIVER SHALL BE DEEMED VOID AND WHOLLY ENFORCEABLE.
  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 by 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

S. 8113                             5

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
OR 160.59 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 160.58 OR 160.59 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 160.58 OR 160.59 of the criminal procedure law.
  S 3. This act shall take effect on the one hundred eightieth day after
it shall have become a law and  shall  apply  to  searches  of  criminal
history records conducted on or after such date; provided, however, that
a  defendant  may request sealing, as set forth in section 160.59 of the
criminal procedure law, as added by section one  of  this  act,  for  an
offense  which  was committed prior to the effective date of this act or
on or after the effective date of this act.

                                 PART B

  Section 1. The executive law is amended by adding a new section  845-c
to read as follows:
  S 845-C. CRIMINAL HISTORY RECORD SEARCHES; UNDISPOSED CASES.  1. WHEN,
PURSUANT  TO  STATUTE  OR  THE REGULATIONS OF THE DIVISION, THE DIVISION
CONDUCTS A SEARCH OF ITS CRIMINAL HISTORY RECORDS AND RETURNS  A  REPORT
THEREON,  ALL  REFERENCES TO UNDISPOSED CASES CONTAINED IN SUCH CRIMINAL
HISTORY RECORD SHALL BE EXCLUDED FROM SUCH REPORT.
  2. FOR PURPOSES OF THIS SECTION, "UNDISPOSED CASE" SHALL MEAN A CRIMI-
NAL ACTION OR PROCEEDING IDENTIFIED IN THE DIVISION'S  CRIMINAL  HISTORY
RECORD REPOSITORY, FOR WHICH THERE IS NO RECORD OF AN UNEXECUTED WARRANT
OF  ARREST,  SUPERIOR COURT WARRANT OF ARREST, OR BENCH WARRANT, AND FOR
WHICH THERE IS NO RECORD OF CONVICTION  OR  IMPOSITION  OF  SENTENCE  OR
OTHER FINAL DISPOSITION, OTHER THAN THE ISSUANCE OF AN APPARENTLY UNEXE-
CUTED  WARRANT, HAS BEEN RECORDED AND WITH RESPECT TO WHICH NO ENTRY HAS
BEEN MADE IN THE DIVISION'S CRIMINAL HISTORY RECORDS FOR A PERIOD OF  AT
LEAST  FIVE YEARS PRECEDING THE ISSUANCE OF SUCH REPORT. WHEN A CRIMINAL
ACTION IN THE DIVISION'S CRIMINAL HISTORY RECORD REPOSITORY  BECOMES  AN

S. 8113                             6

UNDISPOSED  CASE PURSUANT TO THIS SECTION, THE DIVISION SHALL NOTIFY THE
DISTRICT ATTORNEY IN THE COUNTY WHICH HAS JURISDICTION. IF THE  DISTRICT
ATTORNEY  NOTIFIES THE DIVISION THAT SUCH CASE IS PENDING AND SHOULD NOT
MEET  THE  DEFINITION  OF  AN  UNDISPOSED  CASE,  THE  CASE SHALL NOT BE
EXCLUDED FROM SUCH REPORT.
  3. THE PROVISIONS OF SUBDIVISION ONE OF THIS SECTION SHALL  NOT  APPLY
TO  CRIMINAL HISTORY RECORD INFORMATION: (A) PROVIDED BY THE DIVISION TO
QUALIFIED AGENCIES PURSUANT TO SUBDIVISION SIX OF SECTION EIGHT  HUNDRED
THIRTY-SEVEN  OF  THIS  ARTICLE,  OR TO FEDERAL OR STATE LAW ENFORCEMENT
AGENCIES, FOR CRIMINAL JUSTICE PURPOSES; (B) PREPARED SOLELY FOR A  BONA
FIDE RESEARCH PURPOSE; OR (C) PREPARED FOR THE INTERNAL RECORDKEEPING OR
CASE MANAGEMENT PURPOSES OF THE DIVISION.
  S  2.  Subdivision 2 of section 212 of the judiciary law is amended by
adding a new paragraph (u) to read as follows:
  (U) TAKE SUCH ACTIONS AND ADOPT SUCH MEASURES AS MAY BE  NECESSARY  TO
ENSURE THAT NO WRITTEN OR ELECTRONIC REPORT OF A CRIMINAL HISTORY RECORD
SEARCH  CONDUCTED  BY  THE  OFFICE OF COURT ADMINISTRATION, OTHER THAN A
SEARCH CONDUCTED SOLELY FOR THE INTERNAL RECORDKEEPING OR  CASE  MANAGE-
MENT  PURPOSES  OF  THE  JUDICIARY  OR FOR A BONA FIDE RESEARCH PURPOSE,
CONTAINS INFORMATION RELATING TO AN UNDISPOSED  CASE.  FOR  PURPOSES  OF
THIS  PARAGRAPH,  "UNDISPOSED  CASE"  SHALL  MEAN  A  CRIMINAL ACTION OR
PROCEEDING, OR AN ARREST INCIDENT, APPEARING  IN  THE  CRIMINAL  HISTORY
RECORDS  OF  THE OFFICE OF COURT ADMINISTRATION FOR WHICH NO CONVICTION,
IMPOSITION OF SENTENCE, ORDER OF REMOVAL  OR  OTHER  FINAL  DISPOSITION,
OTHER  THAN  THE  ISSUANCE OF AN APPARENTLY UNEXECUTED WARRANT, HAS BEEN
RECORDED AND WITH RESPECT TO WHICH  NO  ENTRY  HAS  BEEN  MADE  IN  SUCH
RECORDS  FOR  A  PERIOD OF AT LEAST FIVE YEARS PRECEDING THE ISSUANCE OF
SUCH REPORT. NOTHING CONTAINED IN THIS  PARAGRAPH  SHALL  BE  DEEMED  TO
PERMIT  OR REQUIRE THE RELEASE, DISCLOSURE OR OTHER DISSEMINATION BY THE
OFFICE OF COURT ADMINISTRATION OF CRIMINAL  HISTORY  RECORD  INFORMATION
THAT HAS BEEN SEALED IN ACCORDANCE WITH LAW.
  S 3. This act shall take effect on the one hundred eightieth day after
it  shall  have  become  a  law  and shall apply to searches of criminal
history records conducted on or after such date; provided, however, that
prior to such effective date, the division of criminal justice services,
in consultation with the state administrator of the unified court system
as well as any other public or  private  agency,  shall  undertake  such
measures  as  may  be  necessary  and appropriate to update its criminal
history records with respect to criminal cases and arrest incidents  for
which no final disposition has been reported.

                                 PART C

  Section  1.  The  commissioner  of  the  division  of criminal justice
services is authorized to direct that records of any action or  proceed-
ing  terminated in favor of the accused, as defined by section 160.50 of
the criminal procedure law, on or after September  1,  1976  and  before
November 1, 1991 maintained by the division of criminal justice services
be  sealed  in the manner provided for by section 160.50 of the criminal
procedure law. The commissioner of  the  division  of  criminal  justice
services  is  further authorized to direct that records of any action or
proceeding terminated by a conviction for  a  traffic  infraction  or  a
violation, other than a violation of loitering as described in paragraph
(d)  of subdivision 1 of section 160.10 of the criminal procedure law or
the violation of driving while ability impaired as described in subdivi-
sion 1 of section 1192 of the  vehicle  and  traffic  law  on  or  after

S. 8113                             7

September 1, 1980 and before November 1, 1991 maintained by the division
of  criminal  justice  services  be sealed in the manner provided for by
section 160.55 of the criminal procedure law.
  S 2. This act shall take effect on the one hundred eightieth day after
it shall have become a law.
  S  2. Severability clause. If any provision of this act or application
thereof shall for any reason be  adjudged  by  any  court  of  competent
jurisdiction  to  be invalid, such judgment shall not affect, impair, or
invalidate the remainder of the act, but shall be confined in its opera-
tion to the provision thereof directly involved in  the  controversy  in
which the judgment shall have been rendered.
  S  3.  This act shall take effect immediately, provided, however, that
the applicable effective date of Parts A through C of this act shall  be
as specifically set forth in the last section of such Parts.

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Sponsored By

Patrick M. Gallivan

Archive: Last Bill Status - In Senate Committee Rules Committee

Actions

2015-S8113 (ACTIVE) - Details

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