Senate Bill S2403

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   2403
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                             January 20, 2023
                                ___________
 
 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
 OF  SUCH  COURT WHERE THE INDIVIDUAL WAS CONVICTED, AND THE HEADS OF ALL
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD04095-01-3
              

 S. 2403                             2
 
 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,
 OR  ANY  AGREEMENT  RELATED TO A CONVICTION  FOR AN ELIGIBLE OFFENSE AND
 ANY SUCH WAIVER SHALL BE DEEMED VOID AND WHOLLY UNENFORCEABLE.
 S. 2403                             3

   § 2. Section 837 of the executive law  is  amended  by  adding  a  new
 subdivision 24 to read as follows:
   24.  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.