Senate Bill S335

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    335
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                                (PREFILED)
 
                              January 6, 2021
                                ___________
 
 Introduced  by  Sen.  MYRIE  -- 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 automatic sealing of certain misdemeanor records

   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 160.57 to read as follows:
 § 160.57 AUTOMATIC SEALING OF CERTAIN MISDEMEANOR RECORDS.
   1.  AS  USED IN THIS SECTION, "ELIGIBLE OFFENSE" SHALL MEAN ANY MISDE-
 MEANOR CRIME DEFINED IN THE LAWS OF THIS STATE OTHER THAN A SEX  OFFENSE
 DEFINED  IN  ARTICLE ONE HUNDRED  THIRTY OF THE PENAL LAW, 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  AN
 INDIVIDUAL  IS  CONVICTED OF MORE THAN ONE ELIGIBLE OFFENSE COMMITTED AS
 PART OF THE SAME  CRIMINAL TRANSACTION AS DEFINED IN SUBDIVISION TWO  OF
 SECTION  40.10  OF  THIS CHAPTER, SUCH  OFFENSES SHALL BE CONSIDERED ONE
 ELIGIBLE OFFENSE.
   2. WHERE AN INDIVIDUAL HAS BEEN CONVICTED IN NEW YORK STATE OF NO MORE
 THAN TWO ELIGIBLE OFFENSES AND TEN YEARS HAVE PASSED SINCE  THE  IMPOSI-
 TION  OF  THE SENTENCE ON AN  INDIVIDUAL'S LATEST CRIMINAL CONVICTION IN
 NEW YORK STATE, ALL OFFICIAL RECORDS AND PAPERS RELATING TO THE ARRESTS,
 PROSECUTIONS, AND CONVICTIONS OF SUCH OFFENSES, 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 EXCEPT  AS  PROVIDED  IN  SUBDIVISION
 FOUR  OF THIS  SECTION; PROVIDED, HOWEVER, THE DIVISION SHALL RETAIN ANY
 FINGERPRINTS, PALMPRINTS AND   PHOTOGRAPHS, OR  DIGITAL  IMAGES  OF  THE
 SAME.  THE  COMMISSIONER  OF  THE  DIVISION OF CRIMINAL JUSTICE SERVICES
 SHALL IMMEDIATELY NOTIFY THE OFFICE OF COURT ADMINISTRATION,  THE  CLERK
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                       [ ] is old law to be omitted.
                                                            LBD02389-01-1

 S. 335                              2
 
 OF  SUCH  COURT WHERE THE INDIVIDUAL WAS CONVICTED, AND THE HEADS OF ALL
 APPROPRIATE POLICE   DEPARTMENTS  AND  OTHER  LAW  ENFORCEMENT  AGENCIES
 REGARDING THE RECORDS THAT SHALL BE SEALED PURSUANT TO THIS SECTION.  IN
 CALCULATING  THE  TEN  YEAR PERIOD UNDER THIS SUBDIVISION, ANY PERIOD OF
 TIME DURING WHICH THE PERSON WAS INCARCERATED SHALL BE EXCLUDED AND SUCH
 TEN YEAR PERIOD SHALL BE EXTENDED BY A PERIOD EQUAL TO THE  TIME  SERVED
 UNDER SUCH INCARCERATION.
   3.  SEALING  OF  RECORDS  PURSUANT  TO SUBDIVISION TWO OF THIS SECTION
 SHALL NOT APPLY TO THE RECORDS OF ANY INDIVIDUAL WHERE SUCH INDIVIDUAL:
   (A) IS REQUIRED TO REGISTER AS A  SEX  OFFENDER  PURSUANT  TO  ARTICLE
 SIX-C OF THE CORRECTION LAW;
   (B)   HAS  PREVIOUSLY  OBTAINED  SEALING  OF  THE  MAXIMUM  NUMBER  OF
 CONVICTIONS ALLOWABLE UNDER SECTION 160.58 OF THIS ARTICLE;
   (C)  HAS  PREVIOUSLY  OBTAINED  SEALING  OF  THE  MAXIMUM  NUMBER   OF
 CONVICTIONS ALLOWABLE UNDER SUBDIVISION TWO OF THIS SECTION;
   (D) HAS AN UNDISPOSED ARREST OR CHARGE PENDING IN NEW YORK STATE;
   (E) WAS CONVICTED OF ANY CRIME IN NEW YORK STATE AFTER THE DATE OF THE
 ENTRY OF JUDGMENT OF THE LAST CONVICTION FOR WHICH SEALING IS SOUGHT;
   (F)  HAS  BEEN CONVICTED OF ANY CRIME IN NEW YORK STATE THAT IS NOT AN
 ELIGIBLE OFFENSE; OR
   (G) HAS BEEN CONVICTED OF MORE THAN TWO CRIMES IN NEW YORK STATE.
   4. NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS SECTION,  AN  INDIVID-
 UAL'S  RECORDS  THAT  HAVE BEEN SEALED PURSUANT TO THIS SECTION SHALL BE
 MADE AVAILABLE TO:
   (A) SUCH INDIVIDUAL OR SUCH INDIVIDUAL'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 RESPONSIBLE FOR THE ISSUANCE
 OF LICENSES TO POSSESS GUNS, WHEN SUCH INDIVIDUAL HAS MADE  AN  APPLICA-
 TION FOR SUCH A LICENSE;
   (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 SUCH INDIVIDUAL'S APPLICA-
 TION  FOR  EMPLOYMENT  AS  A  POLICE OFFICER OR PEACE OFFICER; PROVIDED,
 HOWEVER, THAT EVERY SUCH APPLICANT FOR THE POSITION OF POLICE OFFICER OR
 PEACE OFFICER SHALL BE FURNISHED WITH A COPY  OF  ALL  RECORDS  OBTAINED
 UNDER  THIS  PARAGRAPH AND   SHALL BE AFFORDED AN OPPORTUNITY TO MAKE AN
 EXPLANATION THERETO; AND
   (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).
   5.  IN SITUATIONS WHERE SEALING OF AN INDIVIDUAL'S RECORDS IS REQUIRED
 UNDER SUBDIVISION TWO OF THIS SECTION, BUT HAS NOT TAKEN PLACE, AND SUCH
 INDIVIDUAL OR SUCH   INDIVIDUAL'S ATTORNEY PRESENTS  TO  THE  OFFICE  OF
 COURT  ADMINISTRATION  FINGERPRINT RECORDS FROM THE DIVISION OF CRIMINAL
 JUSTICE SERVICES OR A COURT DISPOSITION INDICATING THAT THE  PERIOD  FOR
 ELIGIBILITY HAS BEEN SATISFIED FOR AN ELIGIBLE CONVICTION, WITHIN THIRTY
 DAYS  OF NOTICE TO THE OFFICE OF COURT ADMINISTRATION, SUCH INDIVIDUAL'S
 RECORDS SHALL BE SEALED AS SET FORTH IN SUBDIVISION TWO OF THIS SECTION.
   6. NO PERSON SHALL BE REQUIRED OR PERMITTED TO WAIVE  ELIGIBILITY  FOR
 SEALING  PURSUANT TO THIS SECTION AS PART OF A PLEA OF GUILTY, SENTENCE,

 S. 335                              3
 
 OR ANY AGREEMENT RELATED TO A CONVICTION   FOR AN ELIGIBLE  OFFENSE  AND
 ANY SUCH WAIVER SHALL BE DEEMED VOID AND WHOLLY UNENFORCEABLE.
   §  2.  Section  837  of  the  executive law is amended by adding a new
 subdivision 23 to read as follows:
   23. ANNUALLY PUBLISH ON THE DIVISION'S  WEBSITE  STATISTICS  REGARDING
 THE TOTAL NUMBER OF CONVICTIONS AUTOMATICALLY SEALED PURSUANT TO SECTION
 160.57 OF THE CRIMINAL PROCEDURE LAW.
   § 3. This act shall take effect immediately.