Senate Bill S7188A

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   7188
 
                             I N  S E N A T E
 
                                (PREFILED)
 
                              January 3, 2018
                                ___________
 
 Introduced  by  Sen. HOYLMAN -- read twice and ordered printed, and when
   printed to be committed to the Committee on Codes
 
 AN ACT to amend the criminal procedure law, in  relation  to  orders  of
   adjournment  in  contemplation  of  dismissal and sealing of defendant
   records

   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  Subdivision 1 of section 160.58 of the criminal procedure
 law, as added by section 3 of part AAA of chapter  56  of  the  laws  of
 2009, is amended to read as follows:
   1. A defendant convicted of any offense defined in article two hundred
 twenty or two hundred twenty-one of the penal law or a specified offense
 defined  in  subdivision  five of section 410.91 of this chapter who has
 successfully completed a judicial diversion program  under  article  two
 hundred sixteen of this chapter, or one of the programs heretofore known
 as drug treatment alternative to prison or another judicially sanctioned
 drug  treatment  program  of similar duration, requirements and level of
 supervision, and has completed the sentence imposed for the  offense  or
 offenses,  [is  eligible  to] SHALL have such offense or offenses sealed
 pursuant to this section.
   § 2. Subdivision 2 of section 160.58 of the criminal procedure law, as
 added by section 3 of part AAA of chapter 56 of the  laws  of  2009,  is
 amended to read as follows:
   2.  The  court that sentenced the defendant to a judicially sanctioned
 drug treatment program [may on its own motion,  or  on  the  defendant's
 motion,]  SHALL  order that all official records [and papers relating to
 the arrest, prosecution and conviction which resulted in the defendant's
 participation in the judicially sanctioned  drug  treatment  program  be
 conditionally  sealed],  DOCUMENTS,  PLEADINGS  AND RECORDS EXCHANGED AS
 PART OF DISCOVERY  RELATING  TO  THE  ARREST,  INDICTMENT,  PROSECUTION,
 CONVICTION,  OR PLEA AGREEMENT WHICH RESULTED IN THE DEFENDANT'S PARTIC-
 IPATION IN THE JUDICIALLY SANCTIONED DRUG TREATMENT PROGRAM  BE  SEALED.
 In such case, the court may also [conditionally] seal the arrest, [pros-

              

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD13750-02-7

 S. 7188                             2

 ecution and conviction records for no more than three of the defendant's
 prior  eligible  misdemeanors,  which  for  purposes of this subdivision
 shall be limited to misdemeanor offenses defined in article two  hundred
 twenty  or  two hundred twenty-one of the penal law.  The court may only
 seal  the  records  of  the  defendant's   arrests,   prosecutions   and
 convictions when] INDICTMENT, PROSECUTION, CONVICTION AND PLEA AGREEMENT
 FOR  THAT DEFENDANT'S PRIOR MISDEMEANORS. THE COURT MAY SEAL THE RECORDS
 OF THE DEFENDANT'S PRIOR ARREST, INDICTMENT, PROSECUTION, CONVICTION  OR
 PLEA AGREEMENT 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; AND
   (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].
   § 3. Subdivision 3 of section 160.58 of the criminal procedure law, as
 added by section 3 of part AAA of chapter 56 of the  laws  of  2009,  is
 amended to read as follows:
   3. 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] SHALL 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 limit-
 ed  to] THE FOLLOWING FACTORS: (i) [the circumstances and seriousness of
 the offense or offenses that resulted in the conviction or  convictions;
 (ii)  the character of the defendant, including his or her completion of
 the judicially sanctioned treatment program as described in  subdivision
 one  of  this  section; (iii) the defendant's criminal history; and (iv)
 the impact of sealing the defendant's records upon his or her  rehabili-
 tation  and  his  or  her  successful and productive reentry and reinte-
 gration into society,  and  on  public  safety]  WHETHER  THE  DEFENDANT
 COMPLETED  THE  JUDICIALLY  SANCTIONED TREATMENT PROGRAM AS DESCRIBED IN
 SUBDIVISION ONE OF THIS SECTION; AND (II)  THE  IMPACT  OF  SEALING  THE
 DEFENDANT'S RECORDS UPON HIS OR HER ABILITY TO SEEK AND MAINTAIN EMPLOY-
 MENT AND SUCCESSFULLY INTEGRATE INTO SOCIETY.

 S. 7188                             3

   § 4. Subdivision 8 of section 160.58 of the criminal procedure law, as
 added  by  section  3  of part AAA of chapter 56 of the laws of 2009, is
 amended to read as follows:
   8.  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
 described in section 160.55 of this article, such unsealed records shall
 be [conditionally] sealed pursuant to this section.
   § 5. Subdivision 2 of section 170.55 of the criminal procedure law, as
 amended by chapter 222 of the laws  of  1994,  is  amended  to  read  as
 follows:
   2.  An  adjournment in contemplation of dismissal is an adjournment of
 the action without date ordered [with a view to ultimate]  INTENDED  FOR
 THE  dismissal  of  the accusatory instrument in furtherance of justice.
 Upon issuing such an order, the court must release the defendant on  his
 own recognizance.  [Upon application of the people, made at any time not
 more  than  six months, or in the case of a family offense as defined in
 subdivision one of section 530.11 of this chapter, one year,  after  the
 issuance  of  such order, the court may restore the case to the calendar
 upon a determination that dismissal of the accusatory  instrument  would
 not be in furtherance of justice, and the action must thereupon proceed.
 If  the case is not so restored within such six months or one year peri-
 od, the accusatory instrument is, at  the  expiration  of  such  period,
 deemed  to  have been dismissed by the court in furtherance of justice.]
 AT ANY TIME PRIOR TO DISMISSAL THE COURT MAY MODIFY  THE  CONDITIONS  OR
 EXTEND  OR  REDUCE THE TERM OF ADJOURNMENT, EXCEPT THAT THE TOTAL PERIOD
 OF ADJOURNMENT SHALL NOT EXCEED  NINETY  DAYS.  UPON  VIOLATION  OF  ANY
 CONDITION  FIXED  BY  THE  COURT,  THE  COURT SHALL REVOKE ITS ORDER AND
 RESTORE THE CASE TO THE CALENDAR AND THE PROSECUTION MAY PROCEED. IF THE
 CASE IS NOT SO RESTORED TO THE CALENDAR DURING THE PERIOD FIXED  BY  THE
 COURT,  THE  ACCUSATORY INSTRUMENT IS, AT THE EXPIRATION OF SUCH PERIOD,
 DEEMED TO HAVE BEEN DISMISSED. THIS SECTION DOES  NOT  APPLY  TO  FAMILY
 OFFENSE  MATTERS AS DEFINED IN SUBDIVISION ONE OF SECTION 530.11 OF THIS
 CHAPTER.
   § 6. Section 170.56 of the criminal procedure law, as added by chapter
 1042 of the laws of 1971, subdivision 1 as amended by chapter 360 of the
 laws of 1977 and subdivision 3 as amended by chapter 905 of the laws  of
 1977, is amended to read as follows:
 §  170.56  Adjournment  in contemplation of dismissal in cases involving
              marihuana.
   1.  Upon or after arraignment in a local criminal court upon an infor-
 mation, a prosecutor's information or a misdemeanor complaint, where the
 sole remaining count or counts  charge  a  violation  or  violations  of
 section  221.05,  221.10,  221.15, 221.35 or 221.40 of the penal law and
 before the entry of a plea of guilty thereto or commencement of  a trial
 thereof, the court, upon motion of  a  defendant,  may  order  that  all
 proceedings  be  suspended  and the action adjourned in contemplation of
 dismissal, or upon a finding that adjournment would not be necessary [or
 appropriate] and the setting forth in the record of the reasons for such
 findings, may dismiss in furtherance of justice the  accusatory  instru-
 ment[;  provided, however, that the court may not order such adjournment
 in contemplation of dismissal or dismiss the accusatory  instrument  if:

 S. 7188                             4

 (a)  the  defendant  has  previously  been  granted  such adjournment in
 contemplation of dismissal, or (b) the  defendant  has  previously  been
 granted  a dismissal under this section, or (c) the defendant has previ-
 ously  been convicted of any offense involving controlled substances, or
 (d) the defendant has previously been  convicted  of  a  crime  and  the
 district  attorney  does not consent or (e) the defendant has previously
 been adjudicated a youthful offender on the basis of  any  act  or  acts
 involving  controlled  substances  and  the  district  attorney does not
 consent].
   2.  [Upon ordering the action adjourned in contemplation of dismissal,
 the court must set and specify such conditions for  the  adjournment  as
 may  be appropriate, and such conditions may include placing the defend-
 ant under the supervision of any public or private agency. At  any  time
 prior  to  dismissal  the  court  may modify the conditions or extend or
 reduce the term of the adjournment, except  that  the  total  period  of
 adjournment  shall  not  exceed  twelve  months.   Upon violation of any
 condition fixed by the court, the court may revoke its order and restore
 the case to the calendar and the prosecution thereupon must proceed.  If
 the case is not so restored to the calendar during the period  fixed  by
 the court, the accusatory instrument is, at the expiration of such peri-
 od,  deemed  to  have  been dismissed in the furtherance of justice.] AN
 ADJOURNMENT IN CONTEMPLATION OF  DISMISSAL  IS  AN  ADJOURNMENT  OF  THE
 ACTION WITHOUT DATE ORDERED INTENDED FOR THE DISMISSAL OF THE ACCUSATORY
 INSTRUMENT  IN  FURTHERANCE  OF JUSTICE. UPON ISSUING SUCH AN ORDER, THE
 COURT MUST RELEASE THE DEFENDANT ON HIS OWN RECOGNIZANCE.   AT ANY  TIME
 PRIOR  TO  DISMISSAL  THE  COURT  MAY MODIFY THE CONDITIONS OR EXTEND OR
 REDUCE THE TERM OF ADJOURNMENT, EXCEPT THAT THE TOTAL PERIOD OF ADJOURN-
 MENT SHALL NOT EXCEED NINETY DAYS. UPON VIOLATION OF ANY CONDITION FIXED
 BY THE COURT, THE COURT SHALL REVOKE ITS ORDER AND RESTORE THE  CASE  TO
 THE  CALENDAR  AND  THE  PROSECUTION  MAY PROCEED. IF THE CASE IS NOT SO
 RESTORED TO THE CALENDAR DURING THE PERIOD FIXED BY THE COURT, THE ACCU-
 SATORY INSTRUMENT IS, AT THE EXPIRATION OF SUCH PERIOD, DEEMED  TO  HAVE
 BEEN DISMISSED. THIS SECTION DOES NOT APPLY TO FAMILY OFFENSE MATTERS AS
 DEFINED IN SUBDIVISION ONE OF SECTION 530.11 OF THIS CHAPTER.
   3.    Upon or after dismissal of such charges against a defendant [not
 previously convicted of a crime,] the court shall order that  all  offi-
 cial  records [and papers, relating to the defendant's arrest and prose-
 cution], DOCUMENTS, PLEADINGS, AND RECORDS EXCHANGED AS PART OF  DISCOV-
 ERY  RELATING TO THE ARREST, INDICTMENT, PROSECUTION, CONVICTION OR PLEA
 AGREEMENT, whether on file with the court, a police agency, or  the  New
 York  state division of criminal justice services, be sealed and, except
 as otherwise provided in paragraph (d) of  subdivision  one  of  section
 160.50  of  this  chapter, not made available to any person or public or
 private agency; except, [such records  shall  be  made  available  under
 order  of  a court for the purpose of determining whether, in subsequent
 proceedings, such person qualifies under this section for a dismissal or
 adjournment in contemplation of dismissal of the accusatory  instrument]
 BY SUBSEQUENT COURT ORDER OR AS REQUIRED BY SUBDIVISION EIGHT OF SECTION
 160.58 OF THIS TITLE.
   4.    Upon  the  granting of an order pursuant to subdivision three OF
 THIS SECTION, the arrest and prosecution shall be deemed a  nullity  and
 the  defendant shall be restored, in contemplation of law, to the status
 he occupied before his arrest and prosecution.
   § 7. This act shall take effect on the sixtieth  day  after  it  shall
 have become a law.