S T A T E O F N E W Y O R K
________________________________________________________________________
7300
2021-2022 Regular Sessions
I N A S S E M B L Y
May 4, 2021
___________
Introduced by M. of A. BICHOTTE HERMELYN, BARRON -- read once and
referred to the Committee on Codes
AN ACT to amend the criminal procedure law, in relation to expunction of
records resulting from identity theft or mistaken identity
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The criminal procedure law is amended by adding a new
section 160.53 to read as follows:
§ 160.53 ORDER UPON TERMINATION OF CRIMINAL ACTION IN FAVOR OF THE
ACCUSED AS A RESULT OF IDENTITY THEFT OR MISTAKEN IDENTITY.
1. FOR PURPOSES OF THIS SECTION, THE TERM "MISTAKEN IDENTITY" MEANS
THE ERRONEOUS ARREST OF A PERSON FOR A CRIME AS A RESULT OF MISIDENTIFI-
CATION BY A WITNESS OR LAW ENFORCEMENT, CONFUSION ON THE PART OF A
WITNESS OR LAW ENFORCEMENT AS TO THE IDENTITY OF THE PERSON WHO COMMIT-
TED THE CRIME, MISINFORMATION PROVIDED TO LAW ENFORCEMENT AS TO THE
IDENTITY OF THE PERSON WHO COMMITTED THE CRIME, OR SOME OTHER MISTAKE ON
THE PART OF A WITNESS OR LAW ENFORCEMENT AS TO THE IDENTITY OF THE
PERSON WHO COMMITTED THE CRIME.
2. FOR PURPOSES OF THIS SECTION, THE TERM "LAW ENFORCEMENT AGENCY"
MEANS THE DEPARTMENT OF ATTORNEY GENERAL, THE SUPERINTENDENT OF THE
STATE POLICE OR HIS/HER DESIGNEE, POLICE OFFICERS, THE DIVISION OF CRIM-
INAL JUSTICE SERVICES, A FEDERAL, STATE OR LOCAL LAW ENFORCEMENT AGENCY
OR POLICE ORGANIZATION, AND ANY AGENCY, DEPARTMENT, OR BUREAU OF THE
UNITED STATES GOVERNMENT WHICH HAS AS ONE OF ITS FUNCTIONS THE GATHERING
OF INTELLIGENCE DATA.
3. FOR PURPOSES OF THIS SECTION, THE TERM "EXPUNCTION OF ALL OFFICIAL
RECORDS" MEANS AND INCLUDES, BUT IS NOT LIMITED TO, ANY FINGERPRINT,
PHOTOGRAPH, DNA SAMPLES, PHYSICAL MEASUREMENTS, OR OTHER RECORD OF IDEN-
TIFICATION, HERETOFORE OR HEREAFTER TAKEN BY OR UNDER THE DIRECTION OF A
LAW ENFORCEMENT AGENCY OR ANY OTHER OFFICER AUTHORIZED BY THE LAWS OF
THIS STATE, OF A PERSON UNDER ARREST.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD06461-01-1
A. 7300 2
4. IF ANY PERSON IS NAMED IN A CHARGE OR ARRESTED FOR ANY INFRACTION
OR CRIME AS A RESULT OF ANOTHER PERSON USING THE IDENTIFYING INFORMATION
OF THE NAMED PERSON OR MISTAKEN IDENTITY, AND THE CHARGE AGAINST THE
NAMED PERSON IS DISMISSED, THE PROSECUTOR OR OTHER JUDICIAL OFFICER OR
LAW ENFORCEMENT AGENCY WHO ORDERED THE DISMISSAL SHALL PROVIDE NOTICE TO
THE COURT OF THE DISMISSAL. THE COURT SHALL THEN:
(A) ORDER THE EXPUNCTION OF ALL OFFICIAL RECORDS CONTAINING ANY
ENTRIES RELATING TO THE PERSON'S APPREHENSION, CHARGE, OR TRIAL;
(B) NOTIFY THE PERSON ARRESTED THAT THE CHARGE WAS DISMISSED OR THAT
NO CHARGES HAVE BEEN FILED AND THAT ALL OFFICIAL RECORDS HAVE BEEN
EXPUNGED; AND
(C) ORDER THAT THE SAID ENTRIES SHALL BE EXPUNGED FROM THE RECORDS OF
THE COURT AND DIRECT ALL LAW ENFORCEMENT AGENCIES, THE DEPARTMENT OF
CORRECTIONS AND COMMUNITY SUPERVISION, THE DEPARTMENT OF MOTOR VEHICLES,
OR ANY OTHER STATE OR LOCAL GOVERNMENT AGENCIES IDENTIFIED BY THE PETI-
TIONER, OR THE PERSON ELIGIBLE FOR AUTOMATIC EXPUNGEMENT UNDER THIS
SUBDIVISION, AS BEARING RECORD OF THE SAME TO EXPUNGE THEIR RECORDS OF
THE ENTRIES. THE CLERK SHALL NOTIFY STATE AND LOCAL AGENCIES, INCLUDING,
BUT NOT LIMITED TO, THE DIVISION OF CRIMINAL JUSTICE SERVICES, THE
NATIONAL CRIME INFORMATION IDENTITY CENTER AND/OR ANY OTHER STATE OR
FEDERAL AGENCY WHICH COMPILES, RETAINS OR COLLECTS ANY ARREST OR IDENTI-
FYING INFORMATION OF ARRESTEES, OF THE COURT'S ORDER AND THAT ALL
RECORDS TRANSMITTED OR GENERATED SHALL BE EXPUNGED AS PROVIDED HEREIN.
THE COSTS OF EXPUNGING THE RECORDS SHALL NOT BE TAXED AGAINST THE PETI-
TIONER.
5. THE DEPARTMENT OF MOTOR VEHICLES SHALL EXPUNGE FROM ITS RECORDS
ENTRIES MADE AS A RESULT OF THE CHARGE OF CONVICTION ORDERED EXPUNGED
UNDER THIS SECTION. THE DEPARTMENT OF MOTOR VEHICLES SHALL ALSO REVERSE
ANY ADMINISTRATIVE ACTIONS TAKEN AGAINST A PERSON WHOSE RECORD IS
EXPUNGED UNDER THIS SECTION AS A RESULT OF THE CHARGES OR CONVICTIONS
EXPUNGED, INCLUDING THE ASSESSMENT OF DRIVER'S LICENSE POINTS AND DRIV-
ER'S LICENSE SUSPENSION OR REVOCATION. NOTWITHSTANDING ANY OTHER
PROVISION OF LAW, THE DEPARTMENT OF MOTOR VEHICLES SHALL PROVIDE TO THE
PERSON WHOSE MOTOR VEHICLE RECORD IS EXPUNGED UNDER THIS SECTION A
CERTIFIED CORRECTED DRIVER HISTORY AT NO COST AND SHALL REINSTATE AT NO
COST ANY DRIVER'S LICENSE SUSPENDED OR REVOKED AS A RESULT OF A CHARGE
OR CONVICTION EXPUNGED UNDER THIS SECTION.
6. WHERE A CHARGE OR CONVICTION IS EXPUNGED UNDER THIS SECTION, THE
DIVISION OF CRIMINAL JUSTICE SERVICES AND ANY OTHER APPLICABLE STATE OR
LOCAL GOVERNMENT AGENCY SHALL EXPUNGE ITS RECORDS. THOSE AGENCIES SHALL
ALSO REVERSE ANY ADMINISTRATIVE ACTIONS TAKEN AGAINST A PERSON WHOSE
RECORD IS EXPUNGED UNDER THIS SECTION. NOTWITHSTANDING ANY OTHER
PROVISION OF LAW, THE NORMAL FEE FOR ANY REINSTATEMENT OF A LICENSE OR
PRIVILEGE RESULTING UNDER THIS SECTION SHALL BE WAIVED.
7. ANY INSURANCE COMPANY THAT CHARGED ANY ADDITIONAL PREMIUM BASED ON
INSURANCE POINTS ASSESSED AGAINST A POLICYHOLDER AS A RESULT OF A CHARGE
OR CONVICTION THAT WAS EXPUNGED UNDER THIS SECTION SHALL REFUND THOSE
ADDITIONAL PREMIUMS TO THE POLICYHOLDER UPON NOTIFICATION OF THE
EXPUNGEMENT.
8. ANY PERSON ARRESTED DETAINED OR OTHERWISE IDENTIFIED AS A SUSPECT
AND WHO IS THEREAFTER EXONERATED CONSISTENT WITH THIS SECTION MAY DENY
FOR ANY PURPOSE THAT THE ARREST EVER OCCURRED AND UNDER NO CIRCUMSTANCES
SHALL SUCH AN ARRESTEE BE REQUIRED TO DISCLOSE THE ARREST FOR ANY
PURPOSES INCLUDING, BUT NOT LIMITED TO, ANY APPLICATION FOR EMPLOYMENT,
PROFESSIONAL LICENSE, CONCEALED WEAPONS PERMIT OR THE PURCHASE OF A
FIREARM OR OTHER WEAPON. NO PERSON AS TO WHOM SUCH AN ORDER HAS BEEN
A. 7300 3
ENTERED UNDER THIS SECTION SHALL BE HELD THEREAFTER UNDER ANY PROVISION
OF ANY LAW TO BE GUILTY OF PERJURY, OR TO BE GUILTY OF OTHERWISE GIVING
A FALSE STATEMENT OR RESPONSE TO ANY INQUIRY MADE FOR ANY PURPOSE, BY
REASON OF THE PERSON'S FAILURE TO RECITE OR ACKNOWLEDGE ANY EXPUNGED
ENTRIES CONCERNING APPREHENSION, CHARGE, OR TRIAL.
9. ANY SUCH PERSON ARRESTED AND NOT CHARGED SHALL BE ENTITLED TO THE
PROVISIONS UNDER THIS SECTION REGARDLESS OF ANY PRIOR RECORD OF ARREST
OR CONVICTION THAT MAY OTHERWISE NOT BE ELIGIBLE FOR EXPUNGEMENT.
§ 2. This act shall take effect immediately.