S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   3319
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                             January 28, 2021
                                ___________
 
 Introduced  by  Sens. BAILEY, KRUEGER, 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.
              

                                                            LBD07069-01-1

 S. 3319                             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. 3319                             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. 3319                             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  2 of subpart O of part II of chapter 55 of the laws of 2019, 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 an order adjourning the criminal action in  contemplation  of
 dismissal, pursuant to section 170.55, 170.56, 210.46, 210.47, or 215.10
 of  the  criminal procedure law, or by a youthful offender adjudication,
 as defined in subdivision one of section 720.35 of the  criminal  proce-
 dure  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 160.59 or 160.58 of the criminal procedure law, OR
 BY A CONVICTION WHICH IS SEALED PURSUANT TO SECTION 160.65 OF THE CRIMI-
 NAL PROCEDURE LAW, in connection with the  licensing,  housing,  employ-
 ment, including volunteer positions, 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 proceeding in favor
 of such individual, as defined in subdivision two of section  160.50  of
 the  criminal  procedure  law,  or  by  an order adjourning the criminal
 action in contemplation of dismissal,  pursuant  to  section  170.55  or
 170.56,  210.46, 210.47 or 215.10 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 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. An individual required  or
 requested  to  provide  information in violation of this subdivision may
 respond as if the arrest, criminal accusation, or  disposition  of  such
 arrest  or  criminal  accusation  did  not occur. The provisions of this
 subdivision 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 enforce-
 ment 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

 S. 3319                             5
 
 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 160.58
 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. For
 purposes of this subdivision, an action  which  has  been  adjourned  in
 contemplation  of  dismissal,  pursuant  to  section  170.55  or 170.56,
 210.46, 210.47 or 215.10 of the criminal procedure  law,  shall  not  be
 considered  a  pending  action,  unless  the order to adjourn in contem-
 plation of dismissal is revoked and the case is restored to the calendar
 for further prosecution.
   § 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.