S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   2191
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                             January 23, 2019
                                ___________
 
 Introduced by Sens. BAILEY, KRUEGER, MONTGOMERY, PARKER, SANDERS -- read
   twice  and  ordered  printed,  and when printed to be committed to the
   Committee on Codes
 
 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".
   § 2. The criminal procedure law is amended by  adding  a  new  section
 160.65 to read as follows:
 § 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.
              

                                                            LBD05449-01-9

 S. 2191                             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. 2191                             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. 2191                             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.
   § 3. Subdivision 16 of section 296 of the executive law, as amended by
 section  48-a  of part WWW of chapter 59 of the laws of 2017, 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  160.59
 or  160.58  of  the  criminal procedure law, OR BY A CONVICTION WHICH IS
 SEALED PURSUANT 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  proceed-
 ing  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 pursu-
 ant 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, OR BY A CONVICTION WHICH IS SEALED  PURSUANT  TO  SECTION
 160.65  OF  THE CRIMINAL PROCEDURE LAW.  The provisions of this subdivi-
 sion 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  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  or
 160.59 of the criminal procedure law, OR BY A CONVICTION WHICH IS SEALED
 PURSUANT TO SECTION 160.65 OF THE CRIMINAL PROCEDURE LAW.
   § 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.