Senate Bill S5095

2017-2018 Legislative Session

Establishes an alternative to incarceration program for youth facility

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Archive: Last Bill Status - In Senate Committee Crime Victims, Crime And Correction 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
Jan 03, 2018	referred to crime victims, crime and correction
Mar 07, 2017	referred to crime victims, crime and correction

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2017-S5095 (ACTIVE) - Details

Current Committee:: Senate Crime Victims, Crime And Correction
Law Section:: Correction Law
Laws Affected:: Amd §§2, 70 & 72, add Art 26-B §§868 & 869, Cor L; amd §§259-i & 296, Exec L; amd §§60.04 & 70.40, Pen L; add §160.65, CP L

2017-S5095 (ACTIVE) - Summary

Directs the commissioner of corrections and community supervision to establish an alternative to incarceration program for youth for certain inmates ages 16 to 18 who are selected to serve a reduced sentence in a facility which provides physical activity and rehabilitation therapy and provides the possibility for sealing of the inmates record.

2017-S5095 (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S5095                 Revised 03/26/18

SPONSOR: CROCI
 
TITLE OF BILL:

An act to amend the correction law, the executive law, the penal law and
the criminal procedure law, in relation to the establishment of an
alternative to incarceration program for youth facility

 
PURPOSE:

To provide persons, aged 16 or 17 at the time of their offense, who are
first-time/non-violent offenders, the ability to participate in the
Alternative to Incarceration Program for Youth and to provide an avenue
for the conditional sealing of offenses committed by persons aged 16 or
17.

 
SUMMARY OF PROVISIONS:

Section one of this bill amends the correction law to define "Alterna-
tive to Incarceration Program for Youth Facility".

Section two and three of this bill amend the correction law to authorize
the Commissioner of Corrections to identify facilities to be utilized
for the Alternative to Incarceration Program for Youth within existing
resources.

Section four of this bill establishes a new Article 26-B in the
correction law, entitled Alternative to Incarceration Program for Youth.
This new article provides for the creation of a rehabilitation program
for youth as an alternative to incarceration. The rehabilitation program
is to be substantially similar to the current SHOCK Incarceration
Program, except only persons who were aged 16 or 17 at the time of their
offense will be eligible to participate. Further, only persons sentenced
pursuant to Penal Law Section 70.00 (First-time/non-violent offender),
70.05 (Juvenile offenders), 70.15 (Non-Felony Offenses) or 70.70 (First-
time/non-violent drug offense) will be admitted to the program. Persons
otherwise eligible, whose sentences are to be served at a local correc-
tional facility can apply to participate in this program upon obtaining
consent from the local correctional facility.  In exchange for success-
ful participation in this program, participants will be eligible for
release to post-release supervision upon participation for a length of
time equal to % their minimum sentence if indeterminate, or % their
sentence if determinate.

Section five of this bill provides that an inmate participating in an
Alternative to Incarceration Program for Youth may leave the facility to
participate in rehabilitation exercises, in accordance with the program.

Section six provides that an individual may be paroled without the need
for an in-person interview, if they complete the requirements of the
Alternative to Incarceration Program for Youth.

Section seven provides that the sentencing judge may order that an
eligible offender participate in the Alternative to Incarceration
Program for Youth and provides an alternative for persons ordered to
participate, who have been deemed to not be medically or mentally able
to participate.

Section eight provides that a person who has successfully participated
in the program for a length of time equal to % their sentence, may be
automatically released to parole.

Section nine amends the criminal procedure law to provide for the condi-
tional sealing of certain offenses. Upon completion of any post-supervi-
sion requirements, a successful participant in an Alternative to Incar-
ceration Program for Youth, may apply to have the relative criminal
offense conditionally sealed. Further, any person aged 16 or 17 at the
time of their offense, who was a first-time/non-violent felony offender
or who was convicted of a misdemeanor, may also apply to have their
criminal record conditionally sealed if they complete an additional 200
hours of community service. The conditional sealing provided in this
section shall not be available to any person who is subsequently
convicted of another criminal offense, and any post-sealing conviction
will result in the record being unsealed.

Section ten provides that any person whose record is sealed as a result
of the conditional sealing established in section 10, shall be entitled
to answer "no" if asked by an employer if they have ever been arrested
or convicted of a crime.

 
JUSTIFICATION:

This program provides first time offenders, aged 16 or 17, who have been
convicted of a non-violent felony offense or a misdemeanor, the ability
to rehabilitate themselves and apply for the sealing of their criminal
records.

 
LEGISLATIVE HISTORY:

New legislation

 
FISCAL IMPLICATIONS:

This program can be implemented within existing funds and resources
allocated to the department of corrections.

 
EFFECTIVE DATE:
January 1, 2018.

2017-S5095 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5095
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                               March 7, 2017
                                ___________
 
 Introduced  by  Sens.  CROCI,  GALLIVAN, GOLDEN, ORTT, ROBACH, SERINO --
   read twice and ordered printed, and when printed to  be  committed  to
   the Committee on Crime Victims, Crime and Correction
 
 AN ACT to amend the correction law, the executive law, the penal law and
   the  criminal  procedure  law,  in relation to the establishment of an
   alternative to incarceration program for youth facility
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1. Section 2 of the correction law is amended by adding a new
 subdivision 15-a to read as follows:
   15-A. "ALTERNATIVE TO INCARCERATION PROGRAM FOR YOUTH  FACILITY".    A
 CORRECTIONAL  FACILITY  DESIGNATED BY THE COMMISSIONER AS AN INSTITUTION
 THAT MAY CONDUCT AN ALTERNATIVE TO INCARCERATION PROGRAM FOR YOUTH.
   § 2. Subdivision 3 of section 70 of the correction law is  amended  by
 adding a new paragraph (c) to read as follows:
   (C) A CORRECTIONAL CAMP OR AN ALTERNATIVE TO INCARCERATION PROGRAM FOR
 YOUTH  FACILITY,  MAY  BE  ESTABLISHED  BY  THE DEPARTMENT (I) UPON LAND
 CONTROLLED  AND  DESIGNATED  BY  THE  COMMISSIONER,  OR  (II)  ON   LAND
 CONTROLLED  AND  DESIGNATED BY THE COMMISSIONER OF PARKS, RECREATION AND
 HISTORIC PRESERVATION OR, IN THE SIXTH PARK REGION, BY THE  COMMISSIONER
 OF ENVIRONMENTAL CONSERVATION.
   §  3.  Paragraph  (b) of subdivision 6 of section 70 of the correction
 law, as amended by chapter 338 of the laws of 1989, is amended  to  read
 as follows:
   (b)  Each  facility  shall  be classified with respect to the function
 served in accordance with one or more of the following  categories:  (i)
 reception  center;  (ii) residential treatment facility; (iii) detention
 center; (iv) correctional camp; (v)  diagnostic  and  treatment  center;
 (vi)  general  confinement facility; (vii) work release facility; (viii)
 shock incarceration correctional facility; (ix) ALTERNATIVE TO INCARCER-
 ATION PROGRAM FOR YOUTH FACILITY; (X) alcohol and substance abuse treat-
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD10287-01-7

 S. 5095                             2
 
 ment facility; [(x)] (XI) alcohol and substance abuse treatment  correc-
 tional annex.
   §  4.  The  correction  law is amended by adding a new article 26-B to
 read as follows:
                               ARTICLE 26-B
              ALTERNATIVE TO INCARCERATION PROGRAM FOR YOUTH
 SECTION 868. ESTABLISHMENT OF ALTERNATIVE TO INCARCERATION  PROGRAM  FOR
                YOUTH.
         869. ALTERNATIVE TO INCARCERATION PROGRAM FOR YOUTH GUIDELINES.
   §  868.  ESTABLISHMENT  OF  ALTERNATIVE  TO  INCARCERATION PROGRAM FOR
 YOUTH. 1. THE COMMISSIONER, GUIDED BY CONSIDERATION FOR  THE  SAFETY  OF
 THE  COMMUNITY AND THE WELFARE OF THE INMATE, SHALL PROMULGATE RULES AND
 REGULATIONS FOR THE ALTERNATIVE TO INCARCERATION PROGRAM  FOR  YOUTH  AS
 DEFINED  IN SECTION EIGHT HUNDRED SIXTY-NINE OF THIS ARTICLE. SUCH RULES
 AND REGULATIONS SHALL REFLECT THE  PURPOSE  OF  THE  PROGRAM  AND  SHALL
 INCLUDE,  BUT  NOT  BE LIMITED TO, PARTICIPATION CRITERIA, INMATE DISCI-
 PLINE, PROGRAMMING AND SUPERVISION, AND PROGRAM STRUCTURE  AND  ADMINIS-
 TRATION.
   2. THE COMMISSIONER SHALL APPOINT OR CAUSE TO BE APPOINTED AN ALTERNA-
 TIVE  TO INCARCERATION FOR YOUTH PROGRAM SUPERVISORY COMMITTEE AT ONE OR
 MORE DESIGNATED CORRECTIONAL FACILITIES, WHICH SHALL MEET ON A REGULARLY
 SCHEDULED BASIS TO REVIEW ALL ELIGIBLE INMATES, AS  DEFINED  IN  SECTION
 EIGHT  HUNDRED  SIXTY-NINE OF THIS ARTICLE, TRANSFERRED TO SUCH FACILITY
 FOR SCREENING AND ALL APPLICATIONS FOR THE ALTERNATIVE TO  INCARCERATION
 PROGRAM FOR YOUTH.
   3.  ALTERNATIVE  TO  INCARCERATION PROGRAMS MAY BE ESTABLISHED ONLY AT
 INSTITUTIONS CLASSIFIED BY THE COMMISSIONER AS ALTERNATIVE TO INCARCERA-
 TION FACILITIES.
   4. THE DEPARTMENT MAY CONTRACT  WITH  THE  OFFICE  OF  ALCOHOLISM  AND
 SUBSTANCE  ABUSE SERVICES, THE OFFICE OF MENTAL HEALTH AND THE OFFICE OF
 CHILDREN AND FAMILY SERVICES FOR THE PROVISION OF SUCH SERVICES  AS  MAY
 BE REQUIRED TO ASSURE THE SUCCESS OF THE PROGRAM.
   5.  THE  DEPARTMENT SHALL CONDUCT AN ONGOING EVALUATION OF THE PROGRAM
 TO ENSURE THAT THE PROGRAMMATIC OBJECTIVES ARE MET. THE DEPARTMENT SHALL
 UNDERTAKE SOME STUDIES AND PREPARE REPORTS ANNUALLY ON THE IMPACT OF THE
 PROGRAM. THE REPORTS SHALL BE DELIVERED TO THE GOVERNOR,  THE  TEMPORARY
 PRESIDENT  OF  THE  SENATE,  AND THE SPEAKER OF THE ASSEMBLY BY DECEMBER
 THIRTY-FIRST IN EACH YEAR.
   § 869. ALTERNATIVE TO INCARCERATION PROGRAM FOR YOUTH GUIDELINES.
   1. AS USED IN THIS ARTICLE, THE FOLLOWING TERMS SHALL MEAN:
   (A) "ELIGIBLE INMATE" MEANS A PERSON  SENTENCED  TO  AN  INDETERMINATE
 TERM  OF IMPRISONMENT ISSUED IN ACCORDANCE WITH SECTIONS 70.00, 70.05 OR
 70.15 OF THE PENAL LAW, OR SENTENCED TO A DETERMINATE TERM OF  IMPRISON-
 MENT  ISSUED  IN  ACCORDANCE  WITH  PARAGRAPH  (A) OF SUBDIVISION TWO OF
 SECTION 70.70 OF THE PENAL LAW, WHO IS CURRENTLY SERVING THEIR  TERM  OF
 IMPRISONMENT,  WHO  HAS  NOT  BEEN  PREVIOUSLY  CONVICTED OF A FELONY AS
 DEFINED IN ARTICLE SEVENTY OF THE PENAL LAW, OR A FELONY  IN  ANY  OTHER
 JURISDICTION  WHICH  INCLUDES  ALL OF THE ESSENTIAL ELEMENTS OF ANY SUCH
 FELONY, WHO WAS AT LEAST SIXTEEN YEARS OF AGE,  BUT  NOT  OVER  EIGHTEEN
 YEARS  OF  AGE, AT THE TIME OF COMMISSION OF THE CRIME UPON WHICH HIS OR
 HER PRESENT SENTENCE WAS BASED. NOTWITHSTANDING THE FOREGOING, NO PERSON
 WHO IS CONVICTED OF ANY OF THE FOLLOWING CRIMES SHALL BE DEEMED ELIGIBLE
 TO PARTICIPATE IN THIS PROGRAM: (I) A VIOLENT FELONY OFFENSE AS  DEFINED
 IN  ARTICLE  SEVENTY  OF  THE  PENAL LAW, (II) ANY CRIME CLASSIFIED AS A
 CLASS A FELONY OFFENSE, (III) ANY HOMICIDE OFFENSE AS DEFINED IN ARTICLE
 ONE HUNDRED TWENTY-FIVE OF THE PENAL LAW, (IV) ANY FELONY SEX OFFENSE AS

 S. 5095                             3
 
 DEFINED IN ARTICLE ONE HUNDRED THIRTY OF  THE  PENAL  LAW  AND  (V)  ANY
 ESCAPE  OR  ABSCONDING OFFENSE AS DEFINED IN ARTICLE TWO HUNDRED FIVE OF
 THE PENAL LAW.  ELIGIBLE INMATES MAY BE SELECTED FROM  A  LOCAL  CORREC-
 TIONAL  FACILITY, ANY STATE OPERATED CORRECTIONAL FACILITY OR A FACILITY
 FOR JUVENILE  OFFENDERS  DESIGNATED  PURSUANT  TO  SUBDIVISION  FOUR  OF
 SECTION 70.20 OF THE PENAL LAW.
   (B)  "ALTERNATIVE  TO INCARCERATION FOR YOUTH PROGRAM" MEANS A PROGRAM
 PURSUANT TO WHICH ELIGIBLE INMATES ARE SELECTED TO  PARTICIPATE  IN  THE
 PROGRAM  AND SERVE A REDUCED SENTENCE IN AN ALTERNATIVE TO INCARCERATION
 FOR YOUTH FACILITY, WHICH  SHALL  PROVIDE  RIGOROUS  PHYSICAL  ACTIVITY,
 INTENSIVE  REGIMENTATION  AND  DISCIPLINE AND REHABILITATION THERAPY AND
 PROGRAMMING. UPON SUCCESSFUL COMPLETION OF AN ALTERNATIVE TO  INCARCERA-
 TION  FOR YOUTH PROGRAM, AND ALL POST-SUPERVISION REQUIREMENTS OTHERWISE
 PROVIDED BY LAW, THE INMATE SHALL BE ELIGIBLE TO APPLY FOR  THE  SEALING
 OF THEIR CRIMINAL RECORD, PURSUANT TO THIS ARTICLE.
   2.  (A)  AN ELIGIBLE INMATE MAY MAKE AN APPLICATION TO THE ALTERNATIVE
 TO INCARCERATION FOR YOUTH PROGRAM SUPERVISORY COMMITTEE FOR  PERMISSION
 TO PARTICIPATE IN THE ALTERNATIVE TO INCARCERATION FOR YOUTH PROGRAM. AN
 ELIGIBLE OFFENDER, SERVING THEIR TERM OF IMPRISONMENT IN A LOCAL CORREC-
 TIONAL  FACILITY, MUST OBTAIN CONSENT FROM THE SHERIFF IN ORDER TO APPLY
 TO THE ALTERNATIVE TO  INCARCERATION  FOR  YOUTH  PROGRAM.  AN  ELIGIBLE
 OFFENDER,  SERVING  THEIR  TERM OF IMPRISONMENT IN A FACILITY DESIGNATED
 PURSUANT TO SUBDIVISION FOUR OF SECTION 70.20  OF  THE  PENAL  LAW  MUST
 OBTAIN CONSENT FROM THE COMMISSIONER OF THE OFFICE OF CHILDREN AND FAMI-
 LY  SERVICES  IN  ORDER TO APPLY TO THE ALTERNATIVE TO INCARCERATION FOR
 YOUTH PROGRAM.
   (B) IF THE ALTERNATIVE TO INCARCERATION FOR YOUTH SUPERVISORY  COMMIT-
 TEE  DETERMINES  THAT  AN  INMATE'S  PARTICIPATION IN THE ALTERNATIVE TO
 INCARCERATION FOR YOUTH PROGRAM IS CONSISTENT WITH  THE  SAFETY  OF  THE
 COMMUNITY, THE WELFARE OF THE APPLICANT AND THE RULES AND REGULATIONS OF
 THE  DEPARTMENT,  THE  COMMITTEE  SHALL  FORWARD  THE APPLICATION TO THE
 COMMISSIONER OR HIS OR HER DESIGNEE FOR APPROVAL OR DISAPPROVAL.
   (C) PARAGRAPHS (A) AND (B) OF THIS SUBDIVISION SHALL APPLY TO A  JUDI-
 CIALLY  SENTENCED  ALTERNATIVE TO INCARCERATION FOR YOUTH PROGRAM INMATE
 ONLY TO THE EXTENT THAT THE SCREENING COMMITTEE  MAY  DETERMINE  WHETHER
 THE INMATE HAS A MEDICAL OR MENTAL HEALTH CONDITION THAT WILL RENDER THE
 INMATE  UNABLE TO SUCCESSFULLY COMPLETE THE ALTERNATIVE TO INCARCERATION
 FOR YOUTH PROGRAM. NOTWITHSTANDING PARAGRAPH (F) OF THIS SUBDIVISION, AN
 INMATE SENTENCED TO AN ALTERNATIVE TO INCARCERATION  FOR  YOUTH  PROGRAM
 SHALL PROMPTLY COMMENCE PARTICIPATION IN THE PROGRAM WHEN SUCH INMATE IS
 AN ELIGIBLE INMATE PURSUANT TO THIS SECTION.
   (D) APPLICANTS MAY NOT PARTICIPATE IN THE ALTERNATIVE TO INCARCERATION
 FOR  YOUTH  PROGRAM  UNLESS  THEY AGREE TO BE BOUND BY ALL THE TERMS AND
 CONDITIONS THEREOF AND INDICATE SUCH AGREEMENT BY SIGNING THE MEMORANDUM
 OF THE PROGRAM IMMEDIATELY BELOW A  STATEMENT  READING  AS  FOLLOWS:  "I
 ACCEPT  THE  FOREGOING  PROGRAM  AND  AGREE TO BE BOUND BY THE TERMS AND
 CONDITIONS THEREOF. I UNDERSTAND THAT MY PARTICIPATION IN THE PROGRAM IS
 A PRIVILEGE THAT MAY BE REVOKED AT ANY TIME AT THE  SOLE  DISCRETION  OF
 THE  COMMISSIONER.  I  UNDERSTAND  THAT I MUST SUCCESSFULLY COMPLETE THE
 ENTIRE PROGRAM TO OBTAIN AN EARLY RELEASE UPON THE  COMPLETION  OF  SAID
 PROGRAM,  AND  IN  THE  EVENT  THAT  I DO NOT SUCCESSFULLY COMPLETE SAID
 PROGRAM, FOR ANY REASON, I WILL BE TRANSFERRED TO A  NON-ALTERNATIVE  TO
 INCARCERATION  FOR  YOUTH  FACILITY TO CONTINUE SERVICE OF MY SENTENCE."
 APPLICANTS WHO ARE ADMITTED TO THE PROGRAM  FROM  A  LOCAL  CORRECTIONAL
 FACILITY,  BUT  WHO  DO  NOT SUCCESSFULLY COMPLETE THE PROGRAM, SHALL BE

 S. 5095                             4
 
 TRANSFERRED BACK TO THE LOCAL CORRECTIONAL FACILITY FROM WHICH THEY WERE
 ADMITTED TO THE PROGRAM.
   (E)  NOTWITHSTANDING  ANY  OTHER  LAW  TO  THE CONTRARY, AN INMATE WHO
 RECEIVED: (I) A DETERMINATE SENTENCE PURSUANT TO PARAGRAPH (A) OF SUBDI-
 VISION TWO OF SECTION 70.70 OF THE PENAL LAW, WHO  SUCCESSFULLY  PARTIC-
 IPATED IN AN ALTERNATIVE TO INCARCERATION FOR YOUTH PROGRAM FOR A PERIOD
 OF  TIME EQUAL TO ONE-HALF OF THEIR DETERMINATE SENTENCE, SHALL BE IMME-
 DIATELY ELIGIBLE TO BE CONDITIONALLY RELEASED; AND (II) AN INDETERMINATE
 SENTENCE, WHO SUCCESSFULLY PARTICIPATED IN AN ALTERNATIVE TO  INCARCERA-
 TION  FOR  YOUTH PROGRAM FOR A PERIOD OF TIME EQUAL TO ONE-HALF OF THEIR
 MINIMUM SENTENCE ISSUED IN ACCORDANCE WITH PARAGRAPH (B) OF  SUBDIVISION
 THREE  OF  SECTION  70.00, PARAGRAPH (C) OF SUBDIVISION THREE OF SECTION
 70.05 OR SECTION 70.15 OF THE PENAL LAW, SHALL BE  IMMEDIATELY  ELIGIBLE
 TO BE CONDITIONALLY RELEASED.
   (F) PARTICIPATION IN AN ALTERNATIVE TO INCARCERATION FOR YOUTH PROGRAM
 SHALL BE A PRIVILEGE. NOTHING CONTAINED IN THIS ARTICLE MAY BE CONSTRUED
 TO  CONFER  UPON  ANY  INMATE  THE  RIGHT  TO PARTICIPATE OR CONTINUE TO
 PARTICIPATE THEREIN.
   (G) INMATES WHO SUCCESSFULLY PARTICIPATED IN AN ALTERNATIVE TO  INCAR-
 CERATION  FOR YOUTH PROGRAM, WHO RECEIVE EARLY RELEASE PURSUANT TO PARA-
 GRAPH (E) OF THIS SUBDIVISION, SHALL  ALSO  BE  ELIGIBLE  TO  APPLY  FOR
 CONDITIONAL  SEALING,  AS PROVIDED FOR IN SECTION 160.65 OF THE CRIMINAL
 PROCEDURE LAW.
   § 5. Subdivision 7 of section 72 of the correction law,  as  added  by
 chapter 261 of the laws of 1987, is amended to read as follows:
   7.  An  inmate  of  a  shock incarceration correctional facility OR AN
 ALTERNATIVE TO INCARCERATION PROGRAM FOR YOUTH FACILITY may be permitted
 to leave the facility to participate in programs in accordance with  the
 provisions  of  article twenty-six-A of this chapter AND ARTICLE TWENTY-
 SIX-B OF THIS CHAPTER, RESPECTIVELY.
   § 6. Paragraph (e) of subdivision 2 of section 259-i of the  executive
 law,  as  added by chapter 55 of the laws of 1992, is amended to read as
 follows:
   (e) Notwithstanding the requirements of paragraph (a) of this subdivi-
 sion, the  determination  to  parole  an  inmate  who  has  successfully
 completed  the  shock  incarceration  program  pursuant to section [two]
 EIGHT hundred sixty-seven of the correction law, OR  AN  ALTERNATIVE  TO
 INCARCERATION  PROGRAM  FOR  YOUTH AS DESCRIBED IN SECTION EIGHT HUNDRED
 SIXTY-NINE OF THE CORRECTION LAW, may be made without a personal  inter-
 view  of  the inmate and shall be made in accordance with procedures set
 forth in the rules of the board. If parole  is  not  granted,  the  time
 period for reconsideration shall not exceed the court imposed minimum.
   §  7.  Subdivision  7 of section 60.04 of the penal law, as amended by
 section 120 of subpart B of part C of chapter 62 of the laws of 2011, is
 amended to read as follows:
   7. a. Shock incarceration AND ALTERNATIVE TO INCARCERATION PROGRAM FOR
 YOUTH PROGRAM participation. When the court imposes a sentence of impri-
 sonment which requires a commitment to the department of corrections and
 community supervision upon a person who stands convicted of a controlled
 substance or marihuana offense, upon motion of the defendant, the  court
 may  issue  an  order  directing  that the department of corrections and
 community supervision enroll the defendant in  the  shock  incarceration
 program  as defined in article twenty-six-A of the correction law, OR AN
 ALTERNATIVE TO INCARCERATION PROGRAM FOR YOUTH  AS  DEFINED  IN  ARTICLE
 TWENTY-SIX-B  OF  THE  CORRECTION LAW, provided that the defendant is an
 eligible inmate, as  described  in  subdivision  one  of  section  eight

 S. 5095                             5
 
 hundred  sixty-five  of  the correction law OR AS DESCRIBED IN PARAGRAPH
 (A) OF SUBDIVISION ONE  OF  SECTION  EIGHT  HUNDRED  SIXTY-NINE  OF  THE
 CORRECTION  LAW, RESPECTIVELY.  Notwithstanding the foregoing provisions
 of this subdivision, any defendant to be enrolled in such program pursu-
 ant  to  this  subdivision shall be governed by the same rules and regu-
 lations promulgated by  the  department  of  corrections  and  community
 supervision,  including  without  limitation those rules and regulations
 establishing requirements for completion and such rules and  regulations
 governing discipline and removal from the program.
   b.  (i)  In  the  event  that  an inmate designated by court order for
 enrollment in the shock incarceration  program  OR  THE  ALTERNATIVE  TO
 INCARCERATION  PROGRAM  FOR  YOUTH  requires a degree of medical care or
 mental health care that cannot be  provided  at  a  shock  incarceration
 facility  OR  AN  ALTERNATIVE  TO  INCARCERATION  PROGRAM FOR YOUTH, the
 department, in writing, shall notify  the  inmate,  provide  a  proposal
 describing  a proposed alternative-to-shock-incarceration program, OR AN
 ALTERNATIVE TO THE ALTERNATIVE TO INCARCERATION PROGRAM FOR  YOUTH,  and
 notify  him  or her that he or she may object in writing to placement in
 such alternative-to-shock-incarceration program OR  ALTERNATIVE  TO  THE
 ALTERNATIVE  TO  INCARCERATION PROGRAM FOR YOUTH.  If the inmate objects
 in  writing  to  placement  in  such  alternative-to-shock-incarceration
 program,  OR ALTERNATIVE TO THE ALTERNATIVE TO INCARCERATION PROGRAM FOR
 YOUTH, the department of corrections  and  community  supervision  shall
 notify  the  sentencing  court,  provide such proposal to the court, and
 arrange for the inmate's prompt appearance before the court.  The  court
 shall  provide  the  proposal  and  notice  of a court appearance to the
 people, the inmate and the appropriate defense attorney. After consider-
 ing the proposal and any submissions by the parties, and after a reason-
 able opportunity for the people, the inmate and counsel to be heard, the
 court may modify its sentencing order accordingly,  notwithstanding  the
 provisions of section 430.10 of the criminal procedure law.
   (ii)  An  inmate  who  successfully completes an alternative-to-shock-
 incarceration program, OR AN ALTERNATIVE TO THE ALTERNATIVE TO INCARCER-
 ATION PROGRAM FOR YOUTH, within the department of corrections and commu-
 nity supervision shall be treated in the same manner as a person who has
 successfully completed the shock incarceration program, OR THE  ALTERNA-
 TIVE  TO  INCARCERATION  PROGRAM  FOR YOUTH, as set forth in subdivision
 four of section eight hundred sixty-seven of  the  correction  law,  AND
 PARAGRAPHS  (E)  AND  (G)  OF  SUBDIVISION  TWO OF SECTION EIGHT HUNDRED
 SIXTY-NINE OF THE CORRECTION LAW.
   § 8. Subparagraph (i) of paragraph (a) of  subdivision  1  of  section
 70.40 of the penal law, as amended by section 127-d of subpart B of part
 C of chapter 62 of the laws of 2011, is amended to read as follows:
   (i)  A  person  who  is  serving  one  or  more than one indeterminate
 sentence of imprisonment may be paroled from the institution in which he
 or she is confined at any time after the expiration of  the  minimum  or
 the  aggregate  minimum  period  of  imprisonment  of  the  sentence  or
 sentences or after the successful completion of  a  shock  incarceration
 program,  as  defined  in article twenty-six-A of the correction law, OR
 AFTER SUCCESSFUL COMPLETION OF AN ALTERNATIVE TO  INCARCERATION  PROGRAM
 FOR  YOUTH,  AS  DEFINED  IN ARTICLE TWENTY-SIX-B OF THE CORRECTION LAW,
 whichever is sooner.  Release on parole shall be in  the  discretion  of
 the state board of parole, and such person shall continue service of his
 or  her  sentence  or  sentences while on parole, in accordance with and
 subject to the provisions of the executive law and the correction law.

 S. 5095                             6

   § 9. The criminal procedure law is amended by  adding  a  new  section
 160.65 to read as follows:
 §  160.65  CONDITIONAL  SEALING OF CERTAIN OFFENSES COMMITTED BY PERSONS
              WHO SUCCESSFULLY PARTICIPATE IN AN ALTERNATIVE TO INCARCER-
              ATION FOR YOUTH PROGRAM.
   1. A PERSON WHO HAS BEEN DEEMED BY THE COMMISSIONER OF THE  DEPARTMENT
 OF  CORRECTIONS  AND  COMMUNITY SUPERVISION TO HAVE SUCCESSFULLY PARTIC-
 IPATED IN AN ALTERNATIVE TO INCARCERATION  PROGRAM,  WHICH  ENABLED  THE
 PERSON TO BE ELIGIBLE FOR EARLY RELEASE, AS PROVIDED IN PARAGRAPH (E) OF
 SUBDIVISION  TWO  OF  SECTION EIGHT HUNDRED SIXTY-NINE OF THE CORRECTION
 LAW, MAY PETITION THE COURT WHICH ISSUED THE CONVICTION TO CONDITIONALLY
 SEAL THE CONVICTION FOR WHICH THEY PARTICIPATED  IN  AN  ALTERNATIVE  TO
 INCARCERATION  FOR  YOUTH  PROGRAM. SUCH PERSON SHALL NOT BE ELIGIBLE TO
 HAVE THEIR CONVICTION CONDITIONALLY  SEALED  IF  THEY  ARE  SUBSEQUENTLY
 CONVICTED  OF  ANY  CRIMINAL  OFFENSE  OR  IF THEY ARE THE SUBJECT OF AN
 UNDISPOSED ARREST, AT THE TIME OF APPLICATION FOR CONDITIONAL SEALING OR
 THROUGH THE PENDENCY OF THE ACTION.  FURTHER,  ALL  POST-RELEASE  SUPER-
 VISION  OBLIGATIONS  MUST BE COMPLETED PRIOR TO FILING FOR A CONDITIONAL
 SEALING.
   2. A PERSON WHO WAS AT LEAST SIXTEEN YEARS OF AGE,  BUT  NOT  EIGHTEEN
 YEARS  OF  AGE,  AT  THE  TIME  OF COMMISSION OF A CRIMINAL ACT, WHO WAS
 CONVICTED AND SENTENCED PURSUANT TO SECTION 70.00, 70.05, 70.15 OR PARA-
 GRAPH (A) OF SUBDIVISION TWO OF SECTION 70.70 OF THE PENAL LAW, BUT  NOT
 SENTENCED TO A TERM OF IMPRISONMENT, MAY ALSO FILE A PETITION FOR CONDI-
 TIONAL SEALING OF ANY CONVICTION ASSOCIATED WITH SUCH SENTENCE, PURSUANT
 TO  THIS SECTION. PROVIDED HOWEVER, THE PETITIONER MUST COMPLETE A MINI-
 MUM OF TWO HUNDRED HOURS OF COMMUNITY SERVICE AT A NOT-FOR-PROFIT CORPO-
 RATION OPERATING IN THIS STATE PRIOR TO FILING FOR CONDITIONAL  SEALING.
 THE  APPLICATION FOR CONDITIONAL SEALING MUST CONTAIN A NOTARIZED STATE-
 MENT FROM THE NOT-FOR-PROFIT, CERTIFYING THE  DATES  AND  TIMES  OF  THE
 INDIVIDUAL'S  COMMUNITY SERVICE.  THIS COMMUNITY SERVICE REQUIREMENT FOR
 CONDITIONAL SEALING SHALL  BE  IN  ADDITION  TO  ANY  COMMUNITY  SERVICE
 ORDERED BY THE COURT AS A CONDITION OF SENTENCING.
   3. THE PETITION AUTHORIZED BY THIS SECTION SHALL BE FILED IN THE COURT
 OF  RECORD  THAT  IMPOSED THE SENTENCE UPON THE PETITIONER FOR THE GIVEN
 OFFENSE. ON  THE  PETITIONER'S  MOTION,  THE  COURT  WHICH  IMPOSED  THE
 SENTENCE  MAY ORDER THAT THE OFFICIAL RECORDS AND PAPERS RELATING TO THE
 ARREST, PROSECUTION AND CONVICTION RECORDS FOR  THE  MATTER  WHICH  THEY
 DISPOSED  OF,  BE  CONDITIONALLY SEALED. ANY SEALING ORDERED PURSUANT TO
 THIS SECTION SHALL ALSO RENDER THE ASSOCIATED ARREST A NULLITY. PRIOR TO
 SEALING ANY ARREST RECORDS, PROSECUTIONS, OR CONVICTIONS:
   (A) THE SENTENCING COURT MUST REQUEST AND RECEIVE 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 MUST IDENTIFY THE OFFENSE OR OFFENSES FOR
 WHICH RELIEF MAY BE GRANTED;
   (C) THE COURT MUST RECEIVE DOCUMENTATION THAT THE SENTENCE IMPOSED FOR
 EACH OFFENSE HAS BEEN COMPLETED; AND

 S. 5095                             7
 
   (D) THE DEFENDANT MUST PAY A TWO HUNDRED DOLLAR FILING FEE. THE FILING
 FEE MAY BE WAIVED IN CASES OF INDIGENCE AS DETERMINED BY  THE  PRESIDING
 JUDGE.
   4. AT THE REQUEST OF THE DEFENDANT OR THE DISTRICT ATTORNEY, 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  PETITIONER'S  ARREST,  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;
   (B)  THE  CHARACTER  OF THE PETITIONER, INCLUDING WHAT STEPS THE PETI-
 TIONER 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 PETITIONER'S CRIMINAL HISTORY;
   (D) THE PETITIONER'S CIVIC SERVICE RECORD;
   (E)  THE  IMPACT  OF  SEALING THE PETITIONER'S RECORDS UPON HIS OR HER
 REHABILITATION AND HIS OR HER  SUCCESSFUL  AND  PRODUCTIVE  REENTRY  AND
 REINTEGRATION INTO SOCIETY, AND ON PUBLIC SAFETY; AND
   (F) ANY STATEMENTS MADE BY ANY VICTIM OF THE OFFENSE.
   5. A DECISION GRANTING OR DENYING A MOTION UNDER THIS SECTION SHALL BE
 MADE  IN  WRITING  AND  SHALL  STATE THE REASONS FOR THE COURT'S RULING,
 UNLESS THE COURT GRANTS THE MOTION WITHOUT OBJECTION OR WRITTEN RESPONSE
 BY THE PROSECUTOR, IN WHICH CASE THE COURT MAY ISSUE AN ORDER WITHOUT  A
 WRITTEN  DECISION.  IF  SEALING  IS DENIED, THE APPLICANT MAY APPEAL THE
 DECISION IN ACCORDANCE WITH SUBDIVISION SIX  OF  THIS  SECTION,  OR  THE
 APPLICANT MAY REAPPLY AFTER THREE YEARS.
   6.  EITHER  PARTY  MAY  APPEAL AS OF RIGHT FROM THE COURT'S ORDER. THE
 APPEALING PARTY MUST SERVE NOTICE OF  APPEAL  UPON  THE  COURT  AND  THE
 OPPOSING PARTY WITHIN THIRTY DAYS OF THE ISSUANCE OF THE COURT ORDER. IF
 THE  ORDER IS APPEALED BY THE PROSECUTOR, SUCH NOTICE OF APPEAL SHALL BE
 DEEMED A STAY OF THE ORDER TO SEAL THE  RECORDS.  THE  PROSECUTOR  SHALL
 PERFECT  THE  APPEAL WITHIN SIXTY DAYS, OR THE SEALING ORDER SHALL IMME-
 DIATELY TAKE EFFECT UNLESS THE COURT GRANTS  AN  EXTENSION  OF  TIME  TO
 PERFECT  THE  APPEAL UPON GOOD CAUSE SHOWN BY THE PROSECUTOR. THE APPEAL
 SHALL BE TAKEN TO THE SAME COURT TO WHICH THE  APPEAL  OF  THE  ORIGINAL
 CONVICTION  WAS,  OR COULD HAVE BEEN, BROUGHT. THE STANDARD OF REVIEW AT
 THE INTERMEDIARY APPELLATE COURT SHALL BE APPEALABLE  TO  THE  COURT  OF
 APPEALS UPON LEAVE OF THE COURT.
   7.  WHEN A COURT ORDERS SEALING PURSUANT TO THIS SECTION, ALL OFFICIAL
 RECORDS AND PAPERS RELATING TO THE ARREST, PROSECUTION  AND  CONVICTION,
 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 OF CRIMINAL JUSTICE  SERVICES  SHALL  RETAIN  FINGERPRINTS,
 PALM PRINTS, DNA, PHOTOGRAPHS, OR DIGITAL IMAGES OF THE SAME.
   8.  WHEN A 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 THE PETITIONER REGARDING THE RECORDS THAT
 SHALL BE SEALED PURSUANT TO THIS SECTION.
   9. RECORDS SEALED PURSUANT TO THIS SUBDIVISION SHALL BE MADE AVAILABLE
 TO:
   (A) THE PETITIONER OR THE PETITIONER'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

 S. 5095                             8
 
 LAW ENFORCEMENT AGENCIES WHEN ACTING  WITHIN  THE  SCOPE  OF  THEIR  LAW
 ENFORCEMENT  DUTIES EXCEPT THAT RECORDS MAY NOT BE USED SOLELY FOR LITI-
 GATION PURPOSES;
   (C)  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 PURSUANT
 TO THIS PARAGRAPH AND AFFORDED AN OPPORTUNITY  TO  MAKE  AN  EXPLANATION
 THERETO.
   10.  THE COURT SHALL NOT SEAL THE PETITIONER'S RECORD PURSUANT TO THIS
 SECTION WHILE ANY CHARGED OFFENSE IS CURRENTLY PENDING.
   11. IF, SUBSEQUENT TO THE SEALING OF RECORDS PURSUANT TO THIS SECTION,
 A PERSON WHO IS THE SUBJECT OF SUCH  RECORDS  IS  FOUND  GUILTY  OF  ANY
 MISDEMEANOR OR FELONY OFFENSE, SUCH RECORDS SHALL BE UNSEALED IMMEDIATE-
 LY AND REMAIN UNSEALED.
   12.  THE  RIGHT  TO  MAKE AN APPLICATION UNDER THIS SECTION MAY NOT BE
 WAIVED AT THE TIME A GUILTY PLEA IS ENTERED ON  ANY  CASE  IN  NEW  YORK
 STATE.
   § 10. Subdivision 16 of section 296 of the executive law, as separate-
 ly  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

 S. 5095                             9
 
 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.
   §  11.  This act shall take effect January 1, 2018; provided, however,
 that section eight of this act shall take effect on the same date as the
 reversion of paragraph (a) of subdivision 1  of  section  70.40  of  the
 penal  law, as provided in paragraph a of subdivision 6 of section 76 of
 chapter 435 of the laws of 1997, as amended takes effect.

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Senate Bill S5095

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Archive: Last Bill Status - In Senate Committee Crime Victims, Crime And Correction Committee

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Sponsored By

Thomas D. Croci

Archive: Last Bill Status - In Senate Committee Crime Victims, Crime And Correction Committee

Actions

co-Sponsors

Patrick M. Gallivan

Martin J. Golden

Robert G. Ortt

Joseph E. Robach

2017-S5095 (ACTIVE) - Details

2017-S5095 (ACTIVE) - Summary

2017-S5095 (ACTIVE) - Sponsor Memo

2017-S5095 (ACTIVE) - Bill Text download pdf

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