Bill Text: NY S00479 | 2021-2022 | General Assembly | Introduced
Bill Title: Relates to orders of adjournment in contemplation of dismissal by mandating that judges seal certain records of defendants rather than giving judge's discretion for such an action; limits the total period of adjournment to 90 days.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2022-01-05 - REFERRED TO CODES [S00479 Detail]
Download: New_York-2021-S00479-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 479 2021-2022 Regular Sessions IN SENATE (Prefiled) January 6, 2021 ___________ Introduced by Sen. HOYLMAN -- read twice and ordered printed, and when printed to be committed 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: 1 Section 1. Subdivision 1 of section 160.58 of the criminal procedure 2 law, as added by section 3 of part AAA of chapter 56 of the laws of 3 2009, is amended to read as follows: 4 1. A defendant convicted of any offense defined in article two hundred 5 twenty or two hundred twenty-one of the penal law or a specified offense 6 defined in subdivision five of section 410.91 of this chapter who has 7 successfully completed a judicial diversion program under article two 8 hundred sixteen of this chapter, or one of the programs heretofore known 9 as drug treatment alternative to prison or another judicially sanctioned 10 drug treatment program of similar duration, requirements and level of 11 supervision, and has completed the sentence imposed for the offense or 12 offenses, [is eligible to] shall have such offense or offenses sealed 13 pursuant to this section. 14 § 2. Subdivision 2 of section 160.58 of the criminal procedure law, as 15 added by section 3 of part AAA of chapter 56 of the laws of 2009, is 16 amended to read as follows: 17 2. The court that sentenced the defendant to a judicially sanctioned 18 drug treatment program [may on its own motion, or on the defendant's19motion,] shall order that all official records and papers relating to 20 the arrest, prosecution and conviction which resulted in the defendant's 21 participation in the judicially sanctioned drug treatment program be 22 conditionally sealed. In such case, the court may also conditionally 23 seal the arrest, prosecution and conviction records for no more than EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD01578-01-1S. 479 2 1 [three] five of the defendant's prior [eligible] misdemeanors, [which2for purposes of this subdivision shall be limited to misdemeanor3offenses defined in article two hundred twenty or two hundred twenty-one4of the penal law. The court may only seal the records of the defend-5ant's arrests, prosecutions and convictions when] provided that a misde- 6 meanor for which registration as a sex offender is required shall not be 7 sealed pursuant to this section. The court may seal such records when: 8 (a) the sentencing court has requested and received from the division 9 of criminal justice services or the Federal Bureau of Investigation a 10 fingerprint based criminal history record of the defendant, including 11 any sealed or suppressed information. The division of criminal justice 12 services shall also include a criminal history report, if any, from the 13 Federal Bureau of Investigation regarding any criminal history informa- 14 tion that occurred in other jurisdictions. The division is hereby 15 authorized to receive such information from the Federal Bureau of Inves- 16 tigation for this purpose. The parties shall be permitted to examine 17 these records; 18 (b) the defendant or court has identified the misdemeanor conviction 19 or convictions for which relief may be granted; 20 (c) the court has received documentation that the sentences imposed on 21 the [eligible] misdemeanor convictions have been completed, or if no 22 such documentation is reasonably available, a sworn affidavit that the 23 sentences imposed on the prior misdemeanors have been completed; and 24 (d) the court has notified the district attorney of each jurisdiction 25 in which the defendant has been convicted of an offense with respect to 26 which sealing is sought, and the court or courts of record for such 27 offenses, that the court is considering sealing the records of the 28 defendant's [eligible] misdemeanor convictions. Both the district attor- 29 ney and the court shall be given a reasonable opportunity, which shall 30 not be less than thirty days, in which to comment and submit materials 31 to aid the court in making such a determination. 32 § 3. Subdivision 3 of section 160.58 of the criminal procedure law, as 33 added by section 3 of part AAA of chapter 56 of the laws of 2009, is 34 amended to read as follows: 35 3. At the request of the defendant or the district attorney of a coun- 36 ty in which the defendant committed a crime that is the subject of the 37 sealing application, the court [may] shall conduct a hearing to consider 38 and review any relevant evidence offered by either party that would aid 39 the court in its decision whether to seal the records of the defendant's 40 arrests, prosecutions and convictions. In making such [a] determination, 41 the court shall consider any relevant factors, including but not limited 42 to the following factors: (i) the circumstances [and seriousness] of the 43 offense or offenses that resulted in the conviction or convictions; (ii) 44 [the character of the defendant, including his or her] the defendant's 45 completion of the judicially sanctioned treatment program as described 46 in subdivision one of this section; (iii) the defendant's criminal 47 conviction history taking into account the time that has elapsed since 48 the occurrence of any conviction and the age of the defendant at the 49 time of such conviction; and (iv) the impact of sealing the defendant's 50 records upon his or her rehabilitation and his or her successful and 51 productive reentry and reintegration into society, and on public safety. 52 § 4. Subdivision 2 of section 170.55 of the criminal procedure law, as 53 amended by chapter 222 of the laws of 1994, is amended to read as 54 follows: 55 2. An adjournment in contemplation of dismissal is an adjournment of 56 the action without date ordered [with a view to ultimate] intended forS. 479 3 1 the dismissal of the accusatory instrument in furtherance of justice. 2 Upon issuing such an order, the court must release the defendant on his 3 own recognizance. [Upon application of the people, made at any time not4more than six months, or in the case of a family offense as defined in5subdivision one of section 530.11 of this chapter, one year, after the6issuance of such order, the court may restore the case to the calendar7upon a determination that dismissal of the accusatory instrument would8not be in furtherance of justice, and the action must thereupon proceed.9If the case is not so restored within such six months or one year peri-10od, the accusatory instrument is, at the expiration of such period,11deemed to have been dismissed by the court in furtherance of justice.] 12 At any time prior to dismissal the court may modify the conditions or 13 extend or reduce the term of adjournment, except that the total period 14 of adjournment shall not exceed ninety days, or in the case of a family 15 offense as defined in section 530.11 of this chapter, the period of 16 adjournment shall not be more than one year. Upon violation of any 17 condition fixed by the court, the court may revoke its order and restore 18 the case to the calendar and the prosecution may proceed. If the case is 19 not so restored to the calendar during the period fixed by the court, 20 the accusatory instrument is, at the expiration of such period, deemed 21 to have been dismissed. 22 § 5. Section 170.56 of the criminal procedure law, as added by chapter 23 1042 of the laws of 1971, subdivision 1 as amended by chapter 360 of the 24 laws of 1977 and subdivision 3 as amended by chapter 905 of the laws of 25 1977, is amended to read as follows: 26 § 170.56 Adjournment in contemplation of dismissal in cases involving 27 marihuana. 28 1. Upon or after arraignment in a local criminal court upon an infor- 29 mation, a prosecutor's information or a misdemeanor complaint, where the 30 sole remaining count or counts charge a violation or violations of 31 section 221.05, 221.10, 221.15, 221.35 or 221.40 of the penal law and 32 before the entry of a plea of guilty thereto or commencement of a trial 33 thereof, the court, upon motion of a defendant, may order that all 34 proceedings be suspended and the action adjourned in contemplation of 35 dismissal, or upon a finding that adjournment would not be necessary [or36appropriate] and the setting forth in the record of the reasons for such 37 findings, may dismiss in furtherance of justice the accusatory instru- 38 ment[; provided, however, that the court may not order such adjournment39in contemplation of dismissal or dismiss the accusatory instrument if:40(a) the defendant has previously been granted such adjournment in41contemplation of dismissal, or (b) the defendant has previously been42granted a dismissal under this section, or (c) the defendant has previ-43ously been convicted of any offense involving controlled substances, or44(d) the defendant has previously been convicted of a crime and the45district attorney does not consent or (e) the defendant has previously46been adjudicated a youthful offender on the basis of any act or acts47involving controlled substances and the district attorney does not48consent]. 49 2. [Upon ordering the action adjourned in contemplation of dismissal,50the court must set and specify such conditions for the adjournment as51may be appropriate, and such conditions may include placing the defend-52ant under the supervision of any public or private agency. At any time53prior to dismissal the court may modify the conditions or extend or54reduce the term of the adjournment, except that the total period of55adjournment shall not exceed twelve months. Upon violation of any56condition fixed by the court, the court may revoke its order and restoreS. 479 4 1the case to the calendar and the prosecution thereupon must proceed. If2the case is not so restored to the calendar during the period fixed by3the court, the accusatory instrument is, at the expiration of such peri-4od, deemed to have been dismissed in the furtherance of justice.] An 5 adjournment in contemplation of dismissal is an adjournment of the 6 action without date ordered intended for the dismissal of the accusatory 7 instrument in furtherance of justice. Upon issuing such an order, the 8 court must release the defendant on his own recognizance. At any time 9 prior to dismissal the court may modify the conditions or extend or 10 reduce the term of adjournment, except that the total period of adjourn- 11 ment shall not exceed ninety days. Upon violation of any condition fixed 12 by the court, the court may revoke its order and restore the case to the 13 calendar and the prosecution may proceed. If the case is not so restored 14 to the calendar during the period fixed by the court, the accusatory 15 instrument is, at the expiration of such period, deemed to have been 16 dismissed. 17 3. Upon or after dismissal of such charges against a defendant [not18previously convicted of a crime,] the court shall order that all offi- 19 cial records and papers, relating to the defendant's arrest and prose- 20 cution, whether on file with the court, a police agency, or the New York 21 state division of criminal justice services, be sealed and, except as 22 otherwise provided in paragraph (d) of subdivision one of section 160.50 23 of this chapter, not made available to any person or public or private 24 agency[; except, such records shall be made available under order of a25court for the purpose of determining whether, in subsequent proceedings,26such person qualifies under this section for a dismissal or adjournment27in contemplation of dismissal of the accusatory instrument]. 28 4. Upon the granting of an order pursuant to subdivision three of this 29 section, the arrest and prosecution shall be deemed a nullity and the 30 defendant shall be restored, in contemplation of law, to the status he 31 occupied before his arrest and prosecution. 32 § 6. This act shall take effect on the sixtieth day after it shall 33 have become a law.