S T A T E O F N E W Y O R K
________________________________________________________________________
8161
2019-2020 Regular Sessions
I N A S S E M B L Y
June 4, 2019
___________
Introduced by M. of A. LENTOL -- read once and referred to the Committee
on Codes
AN ACT to amend the criminal procedure law, in relation to eligibility
for conviction sealing for certain applicants
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Section 160.59 of the criminal procedure law, as added by
section 48 of part WWW of chapter 59 of the laws of 2017 and paragraph
(a) of subdivision 2 and subdivision 11 as amended by chapter 60 of the
laws of 2017, is amended to read as follows:
§ 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 A VIOLATION OF SUBDIVISION ONE OF
SECTION ELEVEN HUNDRED NINETY-TWO OF THE VEHICLE AND TRAFFIC LAW OR A
VIOLATION OF SUBDIVISION TWO OF SECTION 240.37 OF THE PENAL LAW OR any
crime defined in the laws of this state other than a sex offense defined
in article one hundred thirty 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 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. For the purposes of this section, where the
[defendant] APPLICANT is convicted of more than one eligible offense,
[committed as part of the same criminal transaction as defined in subdi-
vision two of section 40.10 of this chapter, those offenses shall be
considered one eligible offense] FOR WHICH THEY WERE CHARGED IN SEPARATE
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD13177-01-9
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COUNTS OF ONE INDICTMENT, INFORMATION OR COMPLAINT, OR FOR WHICH THEY
WERE CHARGED IN TWO OR MORE INDICTMENTS, INFORMATIONS OR COMPLAINTS,
FILED IN THE SAME COURT PRIOR TO ENTRY OF JUDGMENT UNDER ANY OF THEM,
THOSE OFFENSES SHALL BE CONSIDERED ONE ELIGIBLE OFFENSE.
(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.
(C) "PROSECUTOR" SHALL MEAN THE PROSECUTOR'S OFFICE THAT PROSECUTED
THE ELIGIBLE OFFENSE.
1-a. The chief administrator of the courts shall, pursuant to section
10.40 of this chapter, prescribe a form application which may be used by
a defendant to apply for sealing pursuant to this section. Such form
application shall include all the essential elements required by this
section to be included in an application for sealing. Nothing in this
subdivision shall be read to require a defendant to use such form appli-
cation to apply for sealing.
2. (a) [A defendant] AN INDIVIDUAL who has been convicted of up to
[two] FOUR eligible CRIMINAL offenses but not more than one felony
offense may apply to the court in which [he or she was] THEY WERE
convicted of [the] THEIR most serious ELIGIBLE offense to have such
conviction or convictions sealed. If all offenses are offenses with the
same classification, the application shall be made to the court in which
the [defendant] APPLICANT was last convicted.
(b) An application shall contain (i) a copy of a certificate of dispo-
sition or other similar documentation for any offense for which the
[defendant] APPLICANT has been convicted, or an explanation of why such
certificate or other documentation is not available; (ii) a sworn state-
ment of the [defendant] APPLICANT as to whether [he or she has] THEY
HAVE 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; AND (iv) a sworn statement as to the conviction or
convictions for which relief is being sought[; and (v)]. APPLICANTS MAY
SUBMIT 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] PROSECUTOR WHICH
PROSECUTED THE ELIGIBLE OFFENSE FOR WHICH A CONVICTION WAS OBTAINED.
The [district attorney] PROSECUTOR shall notify the court within forty-
five days if [he or she objects] THEY OBJECT to the application for
sealing. IF THE PROSECUTOR HAS NOT NOTIFIED THE COURT WITHIN FORTY-FIVE
DAYS OF THEIR OBJECTION TO THE APPLICATION FOR SEALING, THE COURT SHALL
PROCEED WITH DECISION ON THE APPLICATION.
(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 LOCAL
COURT, county court or the supreme court of the county in which the
criminal court is located, who shall request and receive from the divi-
sion of criminal justice services a fingerprint based criminal history
record of the [defendant] APPLICANT, 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 investi-
gation regarding any criminal history information that occurred in other
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jurisdictions. The division is hereby authorized to receive such infor-
mation from the federal bureau of investigation for this purpose, and to
make such information available to the court, which may make this infor-
mation available to the district attorney and the [defendant] APPLICANT.
3. The sentencing judge, or LOCAL, county or supreme court shall
summarily deny the [defendant's] APPLICANT'S application when:
(a) the [defendant] APPLICANT is required to register as a sex offen-
der pursuant to article six-C of the correction law; or
(b) the [defendant] APPLICANT has previously obtained sealing of the
maximum number of convictions allowable under section 160.58 of [the
criminal procedure law] THIS ARTICLE; or
(c) the [defendant] APPLICANT has previously obtained sealing of the
maximum number of convictions allowable under subdivision four of this
section; or
(d) the time period specified in subdivision five of this section has
not yet been satisfied; or
(e) the [defendant] APPLICANT has an undisposed arrest or charge pend-
ing; or
(f) the [defendant] APPLICANT was convicted of any crime THAT IS NOT
ELIGIBLE FOR SEALING UNDER THIS SECTION after the date of the entry of
[judgement] JUDGMENT of the last 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] APPLICANT has been convicted of two or more felo-
nies or more than [two] FOUR crimes.
4. Provided that the application is not summarily denied for the
reasons set forth in subdivision three of this section, [a defendant] AN
APPLICANT who stands convicted of up to [two] FOUR eligible CRIMINAL
offenses[,] may obtain sealing of VIOLATIONS OF SUBDIVISION ONE OF
SECTION ELEVEN HUNDRED NINETY-TWO OF THE VEHICLE AND TRAFFIC LAW AND
SUBDIVISION TWO OF SECTION 240.37 OF THE PENAL LAW, AND no more than
[two] FOUR 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] PROSECUTOR, the sentencing
judge or LOCAL, 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] INFORM THE
APPLICANT OF THEIR RIGHT TO SUPPLEMENT THEIR APPLICATION WITH ADDITIONAL
MATERIALS THAT WOULD AID THE SENTENCING JUDGE IN THEIR DECISION OR TO A
HEARING ON THE APPLICATION IN ORDER TO CONSIDER ARGUMENTS BY EITHER
PARTY THAT WOULD AID THE SENTENCING JUDGE IN THEIR DECISION. ONCE THE
A. 8161 4
APPLICANT INDICATES WHETHER THEY INTEND TO PROCEED WITH OR WITHOUT
SUPPLEMENTATION OR A HEARING, THE SENTENCING JUDGE OR LOCAL, COUNTY OR
SUPREME COURT, MAY PROCEED. THE COURT MAY HOLD A HEARING UPON REQUEST
OF THE PROSECUTOR.
7. [In considering any such application, the sentencing judge or coun-
ty 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] UPON DETERMIN-
ING THAT THE APPLICATION IS NOT SUBJECT TO MANDATORY DENIAL PURSUANT TO
SUBDIVISION THREE OF THIS SECTION, THE SENTENCING JUDGE OR LOCAL, COUNTY
OR SUPREME COURT SHALL ORDER SEALING, UNLESS THE PROSECUTOR SHOWS THAT
EXCEPTIONAL CIRCUMSTANCES WEIGH AGAINST SUCH RELIEF. IN DETERMINING
WHETHER EXCEPTIONAL CIRCUMSTANCES EXIST THE COURT SHALL CONSIDER IF THE
SEALING WOULD CREATE AN UNREASONABLE RISK TO PUBLIC SAFETY, BALANCED
AGAINST THE BENEFIT OF SEALING THE RECORD UPON THE APPLICANT'S SUCCESS-
FUL AND PRODUCTIVE REENTRY AND REINTEGRATION INTO SOCIETY.
8. When a sentencing judge or LOCAL, county or supreme court orders
sealing pursuant to this section, all official records and papers,
INCLUDING JUDGMENTS AND ORDERS OF A COURT BUT NOT INCLUDING PUBLISHED
COURT DECISIONS OR OPINIONS OR RECORDS AND BRIEFS ON APPEAL, 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, POLICE AGENCY OR PROSECUTOR'S OFFICE 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 fingerprints, 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,
THE HEADS OF ALL APPROPRIATE POLICE DEPARTMENTS AND OTHER LAW ENFORCE-
MENT AGENCIES, regarding the records that shall be sealed pursuant to
this section. The clerk also shall notify any court in which the
[defendant] APPLICANT has stated, pursuant to paragraph (b) of subdivi-
sion two of this section, that [he or she has] THEY HAVE filed or
[intends] INTEND to file an application for sealing of any other eligi-
ble offense.
9. Records sealed pursuant to this section shall be made available to:
(a) the [defendant] APPLICANT or the [defendant's] APPLICANT'S desig-
nated agent;
A. 8161 5
(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] PERSON 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 eligi-
ble offense and any such waiver shall be deemed void and wholly unen-
forceable.
12. DENIAL UNDER THIS SECTION IS WITHOUT PREJUDICE TO SUBSEQUENT
RELIEF UNDER THIS SECTION.
13. AN APPLICATION UNDER THIS SECTION, AND ALL PERTINENT PAPERS AND
DOCUMENTS, SHALL BE CONFIDENTIAL AND MAY NOT BE MADE AVAILABLE TO ANY
PERSON OR PUBLIC OR PRIVATE AGENCY EXCEPT WHERE SPECIFICALLY AUTHORIZED
BY THE COURT.
§ 2. This act shall take effect on the ninetieth day after it shall
have become a law and shall apply to all offenses committed prior to,
on, or after such date.