S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    90
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                                (PREFILED)
 
                              January 6, 2021
                                ___________
 
 Introduced by M. of A. QUART, EPSTEIN, GOTTFRIED, REYES -- read once and
   referred 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. In such case, the  court  may  also  conditionally
 seal  the  arrest,  prosecution  and conviction records for no more than

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                       [ ] is old law to be omitted.
                                                            LBD01578-01-1

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 [three] FIVE 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 defend-
 ant's arrests, prosecutions and convictions when] PROVIDED THAT A MISDE-
 MEANOR FOR WHICH REGISTRATION AS A SEX OFFENDER IS REQUIRED SHALL NOT BE
 SEALED PURSUANT TO THIS SECTION. THE COURT MAY SEAL SUCH RECORDS 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 attor-
 ney  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 limited
 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]  THE  DEFENDANT'S
 completion  of  the judicially sanctioned treatment program as described
 in subdivision one of  this  section;  (iii)  the  defendant's  criminal
 CONVICTION  history  TAKING INTO ACCOUNT THE TIME THAT HAS ELAPSED SINCE
 THE OCCURRENCE OF ANY CONVICTION AND THE AGE OF  THE  DEFENDANT  AT  THE
 TIME  OF SUCH CONVICTION; and (iv) 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.
   § 4. 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

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 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, OR IN THE CASE OF A  FAMILY
 OFFENSE  AS  DEFINED  IN  SECTION  530.11 OF THIS CHAPTER, THE PERIOD OF
 ADJOURNMENT SHALL NOT BE MORE THAN  ONE  YEAR.  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 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.
   § 5. 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:
 (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

 A. 90                               4

 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 MAY 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.
   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, 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].
   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.
   §  6.  This  act  shall take effect on the sixtieth day after it shall
 have become a law.