Bill Text: NY A09087 | 2019-2020 | General Assembly | Introduced


Bill Title: Provides for the confidentiality, sealing and expungement of juvenile delinquency records including providing notice to the respondent and attorney for the child when such acts of the court are ordered.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced) 2020-01-17 - referred to children and families [A09087 Detail]

Download: New_York-2019-A09087-Introduced.html



                STATE OF NEW YORK
        ________________________________________________________________________

                                          9087

                   IN ASSEMBLY

                                    January 17, 2020
                                       ___________

        Introduced by M. of A. LENTOL -- read once and referred to the Committee
          on Children and Families

        AN  ACT  to amend the family court act, in relation to providing for the
          confidentiality, sealing,  and  expungement  of  juvenile  delinquency
          records;  and to repeal section 375.3 of the family court act relating
          thereto

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:

     1    Section  1.  The  family  court act is amended by adding a new section
     2  301.6 to read as follows:
     3    § 301.6. Juvenile delinquency records. 1. An officer of the court with
     4  whom the proceedings pursuant to this article are filed, or his  or  her
     5  clerk,  either  before or after the conclusion of said proceeding, shall
     6  not permit a copy of any of the documents relating to such proceeding to
     7  be taken or seen by any person other than the respondent,  the  attorney
     8  for  the  child,  an  attorney employed by the presentment agency, or an
     9  official employed by the probation  service,  except  by  order  of  the
    10  court.
    11    2.  Notwithstanding the provisions of subdivision one of this section,
    12  an officer of the court, or his or her clerk, shall not permit access of
    13  any person to a record which has been sealed pursuant to section  375.1,
    14  375.2, or 375.3.
    15    § 2. Section 375.1 of the family court act, as added by chapter 920 of
    16  the  laws of 1982, subdivision 1 as amended by chapter 41 of the laws of
    17  2010, paragraphs (d), (f) and (h) of subdivision 2 and subdivision 3  as
    18  amended  and  paragraph  (i) of subdivision 2 as added by chapter 398 of
    19  the laws of 1983, is amended to read as follows:
    20    § 375.1. Order upon termination of a delinquency action  in  favor  of
    21  the respondent.  1. Upon termination of a delinquency proceeding against
    22  a  respondent in favor of such respondent, pursuant to subdivision three
    23  of this section except paragraphs  (g)  and  (h)  of  such  subdivision,
    24  unless  the  presentment  agency  upon written motion with not less than
    25  eight days notice to such respondent demonstrates to the satisfaction of
    26  the court that the interests of justice require otherwise or  the  court

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD14736-02-0

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     1  on  its own motion with not less than eight days notice to such respond-
     2  ent determines that the interest of justice require otherwise and states
     3  the reason for such determination on the  record,  [the  clerk  of]  the
     4  court  shall [immediately notify the counsel for the child, the director
     5  of the appropriate presentment agency, and the heads of the  appropriate
     6  probation  department  and  police  department  or other law enforcement
     7  agency, that the proceeding has terminated in favor  of  the  respondent
     8  and,  unless  the court has directed otherwise, that the records of such
     9  action or proceeding, other than those  destroyed  pursuant  to  section
    10  354.1  of  this  act, shall be sealed. Upon receipt of such notification
    11  all official records and papers, including judgments and orders  of  the
    12  court,  but  not including public court decisions or opinions or records
    13  and briefs on appeal, relating to the arrest, the  prosecution  and  the
    14  probation service proceedings, including all duplicates or copies there-
    15  of,  on  file  with  the  court,  police  agency,  probation service and
    16  presentment agency shall be sealed and not made available to any  person
    17  or public or private agency. Such records shall remain sealed during the
    18  pendency of any motion made pursuant to this subdivision] enter an order
    19  sealing the appropriate records.
    20    2.  Upon  entry of an order pursuant to subdivision one or pursuant to
    21  section 375.2 or 375.3 the clerk of court  shall  immediately  seal  the
    22  relevant  court records and shall immediately notify the director of the
    23  appropriate  presentment  agency,  and  the  heads  of  the  appropriate
    24  probation department, detention facility, police department or other law
    25  enforcement  agency  that,  unless the court has directed otherwise, the
    26  records of such action or proceeding, other than those destroyed  pursu-
    27  ant to section 354.1, shall be sealed.
    28    3. For the purposes of subdivision one, a delinquency proceeding shall
    29  be considered terminated in favor of a respondent where:
    30    (a) the petition is withdrawn; or
    31    (b)  the  petition  is  dismissed under section 315.1 or 315.2 and the
    32  presentment agency has not appealed from such order or the determination
    33  of an appeal or appeals from such order has been against the presentment
    34  agency; or
    35    (c) the petition has been deemed to have been dismissed under  section
    36  315.3 and the presentment agency has not appealed from such order or the
    37  determination  of  an appeal or appeals from such order has been against
    38  the presentment agency; or
    39    (d) the petition is dismissed without prejudice under subdivision four
    40  of section 325.3 and the presentment agency has not appealed  from  such
    41  order  or  the determination of an appeal or appeals from such order has
    42  been against the presentment agency; or
    43    (e) the entire petition has been dismissed under  subdivision  two  of
    44  section 345.1; or
    45    (f)  the petition is dismissed under subdivision two of section 352.1;
    46  or
    47    (g) prior to the filing of a petition, the  probation  department  has
    48  adjusted the case or terminated the case without adjustment; or
    49    (h)  prior  to the filing of a petition the presentment agency chooses
    50  not to proceed to petition; or
    51    (i) the petition is dismissed pursuant to a motion made in  accordance
    52  with subdivision eight, nine or ten of section 332.1.
    53    [3.]  4.  Records  sealed  pursuant  to  subdivision one shall be made
    54  available to the respondent or his designated agent and the records  and
    55  papers  of  a  probation  service  shall  be  available to any probation

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     1  service for the purpose of complying with subdivision  four  of  section
     2  308.1.
     3    [4.]  5.  If  prior to the filing of a petition the presentment agency
     4  elects not to commence a delinquency action it  shall  serve  a  certif-
     5  ication  of  such disposition upon the appropriate probation service and
     6  the appropriate police department or law enforcement agency, which, upon
     7  receipt thereto, shall comply with the provision of subdivision  one  in
     8  the same manner as is required with respect to an order of the court.
     9    [5.]  6.  If the probation service adjusts a delinquency case it shall
    10  serve a certification of such disposition upon  the  appropriate  police
    11  department  or law enforcement agency which, upon receipt thereof, shall
    12  comply with the provisions of subdivision one in the same manner  as  is
    13  required thereunder with respect to an order of a court.
    14    [6.]  7.  A  respondent  in  whose  favor a delinquency proceeding was
    15  terminated prior to the effective date of this section may  upon  motion
    16  apply  to  the  court,  upon  not  less  than  twenty days notice to the
    17  presentment agency, for an order granting him the relief  set  forth  in
    18  subdivision  one, and such order shall be granted unless the presentment
    19  agency demonstrates to the satisfaction of the court that the  interests
    20  of  justice require otherwise. A respondent in whose favor a delinquency
    21  action or proceeding was terminated as defined by subdivisions four  and
    22  five,  prior  to  the  effective  date of this section, may apply to the
    23  appropriate presentment agency or probation service for a  certification
    24  as  described  in  such  subdivisions  granting him the relief set forth
    25  therein and such certification shall  be  granted  by  such  presentment
    26  agency or probation service.
    27    § 3. Subdivisions 1, 5 and 6 of section 375.2 of the family court act,
    28  subdivisions  1  and  5 as added by chapter 920 of the laws of 1982, and
    29  subdivision 6 as amended by section 77 of part WWW of chapter 59 of  the
    30  laws of 2017, are amended to read as follows:
    31    1.  If  an action has resulted in a finding of delinquency pursuant to
    32  subdivision one of  section  352.1,  [other  than  a  finding  that  the
    33  respondent  committed a designated felony act,] and the records have not
    34  been sealed pursuant to section 375.1 or 375.3, the court  may,  in  the
    35  interest of justice and upon motion of the respondent, order the sealing
    36  of appropriate records pursuant to subdivision one of section 375.1.
    37    5.  The  court  shall  not  order  the sealing of any record except as
    38  prescribed by this section or section 375.1 or 375.3.
    39    6. [Such a motion cannot be filed  until  the  respondent's  sixteenth
    40  birthday,  or,  commencing  October  first,  two  thousand eighteen, the
    41  respondent's seventeenth birthday,  or  commencing  October  first,  two
    42  thousand  nineteen, the respondent's eighteenth birthday] If the finding
    43  relates to an act committed before the respondent attained  age  sixteen
    44  such a motion cannot be filed until the respondent's sixteenth birthday.
    45  If  the  finding  related to an act committed subsequent to the respond-
    46  ent's sixteenth birthday, such motion cannot be filed until the respond-
    47  ent has attained age eighteen.
    48    § 4. Section 375.3 of the family court  act  is  REPEALED  and  a  new
    49  section 375.3 is added to read as follows:
    50    § 375.3. Post-finding sealing. 1. If an action has resulted in a find-
    51  ing  of  delinquency  pursuant  to  subdivision one of section 352.1 and
    52  every specific count of the petition upon which the  fact-finding  order
    53  entered pursuant to section 345.1 constitutes a misdemeanor if committed
    54  by  an adult, and four years have elapsed since the finding was entered,
    55  the court shall enter an order sealing the appropriate records  pursuant
    56  to  subdivision  one  of  section  375.1 and the clerk shall immediately

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     1  transmit the notifications pursuant to subdivision two of section 375.1,
     2  and section 375.4.
     3    2.  If after an action has resulted in a finding of delinquency pursu-
     4  ant to subdivision one of section 352.1  and  every  specific  count  or
     5  counts  of the petition upon which the order entered pursuant to section
     6  345.1 constitute a misdemeanor or a non-violent felony if  committed  by
     7  an  adult,  and:    (a)  five  years  have elapsed since the finding was
     8  entered; (b) the respondent has had no subsequent adjudication of  juve-
     9  nile  delinquency  or  a criminal conviction; and (c) no juvenile delin-
    10  quency or criminal proceeding is then pending,  the  court  shall,  upon
    11  motion  of  the  respondent,  order  the  sealing of appropriate records
    12  pursuant to subdivision one of section 375.1  and  the  clerk  of  court
    13  shall immediately transmit the notifications pursuant to subdivision two
    14  of section 375.1, and section 375.4.
    15    §  5. The family court act is amended by adding a new section 375.4 to
    16  read as follows:
    17    § 375.4. Notice of sealing. Upon entering an order sealing appropriate
    18  records pursuant to sections 375.1, 375.2 and 375.3 the clerk  of  court
    19  shall serve the respondent and the attorney for the child with a copy of
    20  such  order  by  ordinary  mail  sent  to  the last known address of the
    21  respondent and the attorney for the child.
    22    § 6. The family court act is amended by adding a new section 375.5  to
    23  read as follows:
    24    §  375.5.  Expungement.  1.  The  court shall order the expungement of
    25  court records, and the records of the appropriate presentment agency and
    26  probation department, when the entire petition has been dismissed  under
    27  subdivision two of section 345.1.
    28    2.  Upon  expiration  of  one  year after termination of a delinquency
    29  proceeding in favor of a child under paragraph (g) or (h) of subdivision
    30  three of section 375.1 the director of the appropriate presentment agen-
    31  cy, and/or the head  of  the  appropriate  probation  department,  shall
    32  destroy  the agency's records of such proceeding when the highest charge
    33  made by the police department is a class E felony or a misdemeanor,  and
    34  the  child  was  less  than  thirteen  years of age when the alleged act
    35  occurred.  As appropriate, the presentment agency shall serve a  certif-
    36  ication  of  disposition  upon  the appropriate probation service, which
    37  shall destroy  the  probation  service's  records  in  the  same  manner
    38  required with respect to an order for the court.
    39    3.  Upon the filing of a written motion by the respondent on notice to
    40  the appropriate presentment agency, the court shall order  the  expunge-
    41  ment of court records, and/or the records of the appropriate presentment
    42  agency or probation department, when:
    43    (a)  the  respondent  has  no juvenile delinquency or criminal history
    44  aside from the proceeding in which the motion is made;
    45    (b) the proceeding did not result in a felony finding; and
    46    (c) respondent has reached the age of twenty-one.
    47    4. In all other cases except those in which a designated felony  find-
    48  ing  was  made,  the  court,  upon the filing of a written motion by the
    49  respondent on notice to the  appropriate  presentment  agency,  has  the
    50  authority  to  order  in its discretion and in the interests of justice,
    51  the expungement of court records, and/or the records of the  appropriate
    52  presentment agency or probation department.
    53    §  7.  This  act shall take effect on the ninetieth day after it shall
    54  have become a law.
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