Senate Bill S8114

                                
 
BILL NUMBER: S8114

SPONSOR: LANZA
 
TITLE OF BILL:

An act to amend the criminal procedure law, in relation to sealing petty
offenses

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of his Advisory
Committee on Criminal Law and Procedure.

This measure would amend section 160.55 of the Criminal Procedure Law to
clarify that cases that result in a conviction only for a petty offense
fall within the meaning of that statute regardless of the original
arrest charge.

There is an unusual and unintended anomaly in how executive agencies
apply the sealing provisions of CPL 160.55 to convictions where the
original arrest charge is a petty offense (e.g., a traffic infraction or
violation offense), as distinguished from cases where the original
arrest charge is a misdemeanor or felony but later ends only in a
conviction for a petty offense. To understand how this anomaly has aris-
              

en, it is necessary to understand the history of the statute, which, in
relevant part, currently provides that

"(u)pon the termination of a criminal action or proceeding against a
person by the conviction of such person of a traffic infraction or a
violation (other than loitering or DWAI, unless the court decides to not
seal in the interest of justice) . . . all official records and papers
relating to the arrest or prosecution . . . on file with the division of
criminal justice services, police agency, or prosecutor's office shall
be sealed and not made available to any person or public or private
agency" (CPL 160.55(1)).

Despite this unequivocal language, most law enforcement agencies,
including the Division of Criminal Justice Services and local police
departments, distinguish between cases where an accused is arrested on a
top charge that is a violation or traffic infraction and those that have
a top charge of a misdemeanor or felony offense, but are later convicted
only of a traffic infraction or violation. In the latter, all agree that
the case should be sealed; in the former, law enforcement records
consistently are not sealed.

The reasons for this result are found in the history of the statute as
reflected in a decades-old, but never updated, McKinney's commentary on
the topic. CPL 160.55 was enacted in 1980 and was originally designed to
seal non-criminal dispositions that appeared on an accused's criminal
history report (the "rap sheet"). At the time, and still today, a
conviction for a noncriminal offense could only be reflected on a DCJS
rap sheet if the accused was initially arrested on a fingerprintable
offense (see CPL 160.10(1)). Where an accused is arrested for a non-
printable offense, DCJS does not reflect the arrest and thus the case,
regardless of disposition, is not reflected on a defendant's rap sheet.

Based on the original reach of the statute, it was understood that seal-
ing convictions for a petty offense at DCJS involved only fingerprinta-
ble arrests. The practice commentary written at the time of the original
statute accurately reflects this state of the law:
"This section, added to the CPL in 1980, complements the provisions of
the preceding section (160.50), which apply where the entire criminal
action or proceeding is terminated in the defendant's favor. The situ-
ation covered here is where defendant, having been arrested or charged
with a printable offense (CPL § 160.10), ultimately is convicted of a
petty offense, except the three specifically excluded." (emphasis added)

The statute operated as reflected in the commentary until 1994, when the
Legislature expanded CPL 160.55 to include sealing not only petty
offenses that would be reflected on an accused's rap sheet, but also
records of law enforcement, including police and DA records (L. 1994, c.
169 § 81). Obviously, law enforcement agencies possess all arrest
records, regardless of whether a defendant is charged with a finger-
printable offense. Thus, the distinction that was critical when the
statute was first enacted - whether DCJS had any record to seal - became
irrelevant to law enforcement records. At that point, a glaring incon-
sistency arose that made the sealing of petty offenses at the local law
enforcement level dependent on whether the arrest carried a top-count
charge of a crime. Ironically, the current application of the statute
results in more favorable treatment for those accused of misdemeanors
and felonies over those who are initially accused only of a petty
offense, an outcome the Legislature surely could not have intended.

This measure amends CPL 160.55(1) by adding language to clarify that the
statute's scope is gauged solely on the conviction charges as reflected
in the final disposition of the case; the arrest charge is irrelevant.
The measure retains the prefatory language that the section applies to a
"criminal action or proceeding" because petty offense charges, although
not criminal, are still part of a criminal action or proceeding when
adjudicated in the Unified Court System (see CPL 1.20(16)).

This measure, which would have no meaningful fiscal impact on the State,
would take effect 90 days after it shall have become law.

 
LEGISLATIVE HISTORY:

None. New proposal.