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.