S T A T E O F N E W Y O R K
________________________________________________________________________
3697
2023-2024 Regular Sessions
I N A S S E M B L Y
February 7, 2023
___________
Introduced by M. of A. EPSTEIN, 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 arti-
cle two hundred sixteen of this chapter, or one of the programs hereto-
fore 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
[three] FIVE of the defendant's prior [eligible] misdemeanors, [which
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD07176-01-3
A. 3697 2
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
THE dismissal of the accusatory instrument in furtherance of justice.
A. 3697 3
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 92 of the
laws of 2021 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
FORMER section 222.10, 222.15, 222.25, 222.30, 222.45 or 222.50 of the
penal law, or upon summons for a nuisance offense under section sixty-
five-c of the alcoholic beverage control 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 find-
ing 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 instrument[; 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 previously 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. Notwithstanding the limita-
tions set forth in this subdivision, the court may order that all
proceedings be suspended and the action adjourned in contemplation of
dismissal based upon a finding of exceptional circumstances. For
purposes of this subdivision, exceptional circumstances exist when,
regardless of the ultimate disposition of the case, the entry of a plea
of guilty is likely to result in severe or ongoing consequences, includ-
ing, but not limited to, potential or actual immigration consequences].
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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
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.