Bill Text: NY S04031 | 2015-2016 | General Assembly | Introduced
Bill Title: Permits the sealing of records of certain nonviolent misdemeanor or non-sexual misdemeanor criminal offenses; defines the term "eligible misdemeanor"; excludes certain misdemeanor offenses as eligible misdemeanors for the purposes of conditional sealing; lists certain eligibility requirements for sealing; provides an order granting sealing under this section shall restore the individual concerned, in the contemplation of the laws, to the status such individual occupied before the arrest or institution of criminal proceedings for the crime that was the subject of the sealing.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2015-02-26 - REFERRED TO CODES [S04031 Detail]
Download: New_York-2015-S04031-Introduced.html
S T A T E O F N E W Y O R K
________________________________________________________________________
4031
2015-2016 Regular Sessions
I N S E N A T E
February 26, 2015
___________
Introduced by Sen. SAMPSON -- 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 permitting the sealing of records of certain nonviolent
misdemeanor or non-sexual misdemeanor offenses
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. This act shall be known and may be cited as the "second
2 chance for ex-offenders act".
3 S 2. The criminal procedure law is amended by adding a new section
4 160.65 to read as follows:
5 S 160.65 CONDITIONAL SEALING OF CERTAIN MISDEMEANOR OFFENSES.
6 1. FOR THE PURPOSES OF THIS SECTION, THE TERM "ELIGIBLE MISDEMEANOR"
7 SHALL BE A MISDEMEANOR OFFENSE DEFINED IN THE PENAL LAW, PROVIDED THAT
8 AN ELIGIBLE MISDEMEANOR SHALL NOT MEAN A MISDEMEANOR OFFENSE DEFINED IN
9 ARTICLE ONE HUNDRED TWENTY, ONE HUNDRED THIRTY, ONE HUNDRED THIRTY-FIVE,
10 ONE HUNDRED FIFTY, TWO HUNDRED THIRTY-FIVE, TWO HUNDRED FORTY-FIVE, TWO
11 HUNDRED SIXTY, TWO HUNDRED SIXTY-THREE, TWO HUNDRED SIXTY-FIVE OR ARTI-
12 CLE FOUR HUNDRED OF THE PENAL LAW. AN ELIGIBLE MISDEMEANOR SHALL NOT
13 INCLUDE ANY ONE OR MORE OF THE FOLLOWING: KILLING OR INJURING A POLICE
14 ANIMAL AS DEFINED IN SECTION 195.06, HARMING AN ANIMAL TRAINED TO AID A
15 PERSON WITH A DISABILITY IN THE SECOND DEGREE AS DEFINED IN SECTION
16 195.11, HARMING AN ANIMAL TRAINED TO AID A PERSON WITH A DISABILITY IN
17 THE FIRST DEGREE AS DEFINED IN SECTION 195.12, PROMOTING PROSTITUTION IN
18 THE FOURTH DEGREE AS DEFINED IN SECTION 230.20, RIOT IN THE SECOND
19 DEGREE AS DEFINED IN SECTION 240.05, INCITING TO RIOT AS DEFINED IN
20 SECTION 240.08, AGGRAVATED HARASSMENT IN THE SECOND DEGREE AS DEFINED IN
21 SUBDIVISION THREE OF SECTION 240.30, CRIMINAL INTERFERENCE WITH HEALTH
22 CARE SERVICES OR RELIGIOUS WORSHIP IN THE SECOND DEGREE AS DEFINED IN
23 SECTION 240.70, HARMING A SERVICE ANIMAL IN THE SECOND DEGREE AS DEFINED
24 IN SECTION 242.10, DISSEMINATION OF AN UNLAWFUL SURVEILLANCE IMAGE IN
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD02961-02-5
S. 4031 2
1 THE SECOND DEGREE AS DEFINED IN SECTION 250.55, OR ANY SPECIFIED OFFENSE
2 SUBJECT TO THE PROVISION RELATING TO HATE CRIMES AS DEFINED IN SECTION
3 485.05 OF THE PENAL LAW. ADDITIONALLY, AN ELIGIBLE MISDEMEANOR SHALL NOT
4 INCLUDE CRIMINAL SOLICITATION, CONSPIRACY, ATTEMPT, OR CRIMINAL FACILI-
5 TATION TO COMMIT ANY VIOLENT FELONY OFFENSE AS DEFINED IN SECTION 70.02
6 OF THE PENAL LAW, OR ANY SEX OFFENSE AS DEFINED UNDER SUBDIVISION TWO OF
7 SECTION ONE HUNDRED SIXTY-EIGHT-A OF THE CORRECTION LAW.
8 2. A PERSON HAVING A CONVICTION FOR NO MORE THAN THREE MISDEMEANORS,
9 WHO DOES NOT STAND CONVICTED OF ANY FELONY, OR WHO IS NOT REQUIRED TO
10 MAINTAIN REGISTRATION UNDER ARTICLE SIX-C OF THE CORRECTION LAW, MAY
11 PETITION THE COURT TO CONDITIONALLY SEAL UP TO THREE ELIGIBLE MISDEMEA-
12 NORS WHEN:
13 (A) AT LEAST FIVE YEARS HAVE PASSED SINCE THE COMPLETION OF A SENTENCE
14 ON AN ELIGIBLE MISDEMEANOR; AND
15 (B) SUCH PERSON HAS NOT BEEN CONVICTED OF AN OFFENSE DURING THE LAST
16 FIVE YEARS AND IS NOT THE SUBJECT OF AN UNDISPOSED ARREST.
17 3. THE PETITION AUTHORIZED BY THIS SECTION SHALL BE FILED IN THE COURT
18 OF RECORD THAT LAST IMPOSED A SENTENCE UPON PETITIONER FOR AN ELIGIBLE
19 MISDEMEANOR. ON THE DEFENDANT'S MOTION, THE COURT MAY ORDER THAT ALL
20 OFFICIAL RECORDS AND PAPERS RELATING TO THE ARREST, PROSECUTION AND
21 CONVICTION RECORDS FOR NO MORE THAN THREE OF THE DEFENDANT'S PRIOR
22 ELIGIBLE MISDEMEANORS BE CONDITIONALLY SEALED. THE COURT MAY ONLY SEAL
23 THE RECORDS OF THE DEFENDANT'S ARRESTS, PROSECUTIONS AND CONVICTIONS
24 WHEN:
25 (A) THE SENTENCING COURT HAS REQUESTED AND RECEIVED FROM THE DIVISION
26 OF CRIMINAL JUSTICE SERVICES OR THE FEDERAL BUREAU OF INVESTIGATION A
27 FINGERPRINT BASED CRIMINAL HISTORY RECORD OF THE DEFENDANT, INCLUDING
28 ANY SEALED OR SUPPRESSED INFORMATION. THE DIVISION OF CRIMINAL JUSTICE
29 SERVICES SHALL ALSO INCLUDE A CRIMINAL HISTORY REPORT, IF ANY, FROM THE
30 FEDERAL BUREAU OF INVESTIGATION REGARDING ANY CRIMINAL HISTORY INFORMA-
31 TION THAT OCCURRED IN OTHER JURISDICTIONS. THE DIVISION IS HEREBY
32 AUTHORIZED TO RECEIVE SUCH INFORMATION FROM THE FEDERAL BUREAU OF INVES-
33 TIGATION FOR THIS PURPOSE. THE PARTIES SHALL BE PERMITTED TO EXAMINE
34 THESE RECORDS;
35 (B) THE DEFENDANT OR COURT HAS IDENTIFIED THE MISDEMEANOR CONVICTION
36 OR CONVICTIONS FOR WHICH RELIEF MAY BE GRANTED;
37 (C) THE COURT HAS RECEIVED DOCUMENTATION THAT THE SENTENCES IMPOSED ON
38 THE ELIGIBLE MISDEMEANOR CONVICTIONS HAVE BEEN COMPLETED, OR IF NO SUCH
39 DOCUMENTATION IS REASONABLY AVAILABLE, A SWORN AFFIDAVIT THAT THE
40 SENTENCES IMPOSED ON THE PRIOR MISDEMEANORS HAVE BEEN COMPLETED; AND
41 (D) THE COURT HAS NOTIFIED THE DISTRICT ATTORNEY OF EACH JURISDICTION
42 IN WHICH THE DEFENDANT HAS BEEN CONVICTED OF AN OFFENSE WITH RESPECT TO
43 WHICH SEALING IS SOUGHT, AND THE COURT OR COURTS OF RECORD FOR SUCH
44 OFFENSES, THAT THE COURT IS CONSIDERING SEALING THE RECORDS OF THE
45 DEFENDANT'S ELIGIBLE MISDEMEANOR CONVICTIONS. BOTH THE DISTRICT ATTORNEY
46 AND THE COURT SHALL BE GIVEN A REASONABLE OPPORTUNITY, WHICH SHALL NOT
47 BE LESS THAN THIRTY DAYS, IN WHICH TO COMMENT AND SUBMIT MATERIALS TO
48 AID THE COURT IN MAKING SUCH A DETERMINATION. WHEN THE COURT NOTIFIES A
49 DISTRICT ATTORNEY OF A SEALING APPLICATION, THE DISTRICT ATTORNEY SHALL
50 PROVIDE NOTICE TO THE VICTIM, IF ANY, OF THE SEALING APPLICATION BY
51 MAILING WRITTEN NOTICE TO THE VICTIM'S LAST-KNOWN ADDRESS. FOR PURPOSES
52 OF THIS SECTION "VICTIM" MEANS ANY PERSON WHO HAS SUSTAINED PHYSICAL OR
53 FINANCIAL INJURY TO PERSON OR TO PROPERTY AS A DIRECT RESULT OF THE
54 MISDEMEANOR CRIME OR MISDEMEANOR CRIMES FOR WHICH SEALING IS APPLIED.
55 4. AT THE REQUEST OF THE DEFENDANT OR THE DISTRICT ATTORNEY OF A COUN-
56 TY IN WHICH THE DEFENDANT COMMITTED A CRIME THAT IS THE SUBJECT OF THE
S. 4031 3
1 SEALING APPLICATION, THE COURT MAY CONDUCT A HEARING TO CONSIDER AND
2 REVIEW ANY RELEVANT EVIDENCE OFFERED BY EITHER PARTY THAT WOULD AID THE
3 COURT IN ITS DECISION WHETHER TO SEAL THE RECORDS OF THE DEFENDANT'S
4 ARRESTS, PROSECUTIONS AND CONVICTIONS. IN MAKING SUCH A DETERMINATION,
5 THE COURT SHALL CONSIDER ANY RELEVANT FACTORS, INCLUDING BUT NOT LIMITED
6 TO:
7 (A) THE CIRCUMSTANCES AND SERIOUSNESS OF THE OFFENSE OR OFFENSES THAT
8 RESULTED IN THE CONVICTION OR CONVICTIONS;
9 (B) THE CHARACTER OF THE DEFENDANT, INCLUDING WHAT STEPS THE PETITION-
10 ER HAS TAKEN SINCE THE TIME OF THE OFFENSE TOWARD PERSONAL REHABILI-
11 TATION, INCLUDING TREATMENT, WORK, SCHOOL, OR OTHER PERSONAL HISTORY
12 THAT DEMONSTRATES REHABILITATION;
13 (C) THE DEFENDANT'S CRIMINAL HISTORY;
14 (D) THE IMPACT OF SEALING THE DEFENDANT'S RECORDS UPON HIS OR HER
15 REHABILITATION AND HIS OR HER SUCCESSFUL AND PRODUCTIVE REENTRY AND
16 REINTEGRATION INTO SOCIETY, AND ON PUBLIC SAFETY; AND
17 (E) ANY STATEMENTS MADE BY THE VICTIM OF THE OFFENSE WHERE THERE IS IN
18 FACT A VICTIM OF THE CRIME.
19 5. AFTER A COURT DECLARES ITS WILLINGNESS TO GRANT THE DEFENDANT'S
20 REQUEST FOR CONDITIONAL SEALING PURSUANT TO THIS SECTION, BUT BEFORE THE
21 COURT ORDERS SEALING PURSUANT TO THIS SECTION, THE DEFENDANT SHALL PAY A
22 MANDATORY CONDITIONAL SEALING FEE. THE MANDATORY CONDITIONAL SEALING FEE
23 WILL BE A FEE OF EIGHTY DOLLARS, HOWEVER, SUCH FILING FEE SHALL BE
24 WAIVED IN CASES OF INDIGENCE. THE MANDATORY FILING FEE SHALL BE PAID TO
25 THE CLERK OF THE COURT OR ADMINISTRATIVE TRIBUNAL THAT RENDERED THE
26 CONVICTION. WITHIN THE FIRST TEN DAYS OF THE MONTH FOLLOWING COLLECTION
27 OF THE MANDATORY FILING FEE, THE COLLECTING AUTHORITY IF IT IS AN ADMIN-
28 ISTRATIVE TRIBUNAL, OR A TOWN OR VILLAGE JUSTICE COURT, SHALL THEN PAY
29 SUCH MONEY TO THE STATE COMPTROLLER WHO SHALL DEPOSIT SUCH MONEY IN THE
30 STATE TREASURY PURSUANT TO SECTION ONE HUNDRED TWENTY-ONE OF THE STATE
31 FINANCE LAW TO THE CREDIT OF THE INDIGENT LEGAL SERVICES FUND. IF SUCH
32 COLLECTING AUTHORITY IS ANY OTHER COURT OF THE UNIFIED COURT SYSTEM, IT
33 SHALL, WITHIN SUCH PERIOD, PAY SUCH MONEY ATTRIBUTABLE TO THE MANDATORY
34 FILING FEE TO THE STATE COMMISSIONER OF TAXATION AND FINANCE TO THE
35 CREDIT OF THE INDIGENT LEGAL SERVICES FUND ESTABLISHED BY SECTION NINE-
36 TY-EIGHT-B OF THE STATE FINANCE LAW.
37 6. WHEN A COURT ORDERS SEALING PURSUANT TO THIS SECTION, ALL OFFICIAL
38 RECORDS AND PAPERS RELATING TO THE ARRESTS, PROSECUTIONS, AND
39 CONVICTIONS, INCLUDING ALL DUPLICATES AND COPIES THEREOF, ON FILE WITH
40 THE DIVISION OF CRIMINAL JUSTICE SERVICES OR ANY COURT SHALL BE SEALED
41 AND NOT MADE AVAILABLE TO ANY PERSON OR PUBLIC OR PRIVATE AGENCY;
42 PROVIDED, HOWEVER, THE DIVISION SHALL RETAIN ANY FINGERPRINTS, PALM-
43 PRINTS, PHOTOGRAPHS, OR DIGITAL IMAGES OF THE SAME.
44 7. WHEN THE COURT ORDERS SEALING PURSUANT TO THIS SECTION, THE CLERK
45 OF SUCH COURT SHALL IMMEDIATELY NOTIFY THE COMMISSIONER OF THE DIVISION
46 OF CRIMINAL JUSTICE SERVICES, AND ANY COURT THAT SENTENCED THE DEFENDANT
47 FOR AN OFFENSE WHICH HAS BEEN CONDITIONALLY SEALED, REGARDING THE
48 RECORDS THAT SHALL BE SEALED PURSUANT TO THIS SECTION.
49 8. RECORDS SEALED PURSUANT TO THIS SUBDIVISION SHALL BE MADE AVAILABLE
50 TO:
51 (A) THE DEFENDANT OR THE DEFENDANT'S DESIGNATED AGENT;
52 (B) QUALIFIED AGENCIES, AS DEFINED IN SUBDIVISION NINE OF SECTION
53 EIGHT HUNDRED THIRTY-FIVE OF THE EXECUTIVE LAW, AND FEDERAL AND STATE
54 LAW ENFORCEMENT AGENCIES, WHEN ACTING WITHIN THE SCOPE OF THEIR LAW
55 ENFORCEMENT DUTIES;
S. 4031 4
1 (C) ANY STATE OR LOCAL OFFICER OR AGENCY WITH RESPONSIBILITY FOR THE
2 ISSUANCE OF LICENSES TO POSSESS GUNS, WHEN THE PERSON HAS MADE APPLICA-
3 TION FOR SUCH A LICENSE; OR
4 (D) ANY PROSPECTIVE EMPLOYER OF A POLICE OFFICER OR PEACE OFFICER AS
5 THOSE TERMS ARE DEFINED IN SUBDIVISIONS THIRTY-THREE AND THIRTY-FOUR OF
6 SECTION 1.20 OF THIS CHAPTER, IN RELATION TO AN APPLICATION FOR EMPLOY-
7 MENT AS A POLICE OFFICER OR PEACE OFFICER; PROVIDED, HOWEVER, THAT EVERY
8 PERSON WHO IS AN APPLICANT FOR THE POSITION OF POLICE OFFICER OR PEACE
9 OFFICER SHALL BE FURNISHED WITH A COPY OF ALL RECORDS OBTAINED UNDER
10 THIS PARAGRAPH AND AFFORDED AN OPPORTUNITY TO MAKE AN EXPLANATION THERE-
11 TO.
12 9. THE COURT SHALL NOT SEAL THE DEFENDANT'S RECORD PURSUANT TO THIS
13 SECTION WHILE ANY CHARGED OFFENSE IS PENDING.
14 10. IF, SUBSEQUENT TO THE SEALING OF RECORDS PURSUANT TO THIS SUBDIVI-
15 SION, THE PERSON WHO IS THE SUBJECT OF SUCH RECORDS IS ARRESTED FOR OR
16 FORMALLY CHARGED WITH ANY MISDEMEANOR OR FELONY OFFENSE, SUCH RECORDS
17 SHALL BE UNSEALED IMMEDIATELY AND REMAIN UNSEALED; PROVIDED, HOWEVER,
18 THAT IF SUCH NEW MISDEMEANOR OR FELONY ARREST RESULTS IN A TERMINATION
19 IN FAVOR OF THE ACCUSED AS DEFINED IN SUBDIVISION THREE OF SECTION
20 160.50 OF THIS ARTICLE OR BY CONVICTION FOR A NON-CRIMINAL OFFENSE AS
21 DESCRIBED IN SECTION 160.55 OF THIS ARTICLE, SUCH UNSEALED RECORDS SHALL
22 BE CONDITIONALLY SEALED PURSUANT TO THIS SECTION.
23 S 3. Subdivision 16 of section 296 of the executive law, as separately
24 amended by section 3 of part N and section 14 of part AAA of chapter 56
25 of the laws of 2009, is amended to read as follows:
26 16. It shall be an unlawful discriminatory practice, unless specif-
27 ically required or permitted by statute, for any person, agency, bureau,
28 corporation or association, including the state and any political subdi-
29 vision thereof, to make any inquiry about, whether in any form of appli-
30 cation or otherwise, or to act upon adversely to the individual
31 involved, any arrest or criminal accusation of such individual not then
32 pending against that individual which was followed by a termination of
33 that criminal action or proceeding in favor of such individual, as
34 defined in subdivision two of section 160.50 of the criminal procedure
35 law, or by a youthful offender adjudication, as defined in subdivision
36 one of section 720.35 of the criminal procedure law, or by a conviction
37 for a violation sealed pursuant to section 160.55 of the criminal proce-
38 dure law or by a conviction which is sealed pursuant to section 160.58
39 of the criminal procedure law, OR BY A CONVICTION WHICH IS SEALED PURSU-
40 ANT TO SECTION 160.65 OF THE CRIMINAL PROCEDURE LAW, in connection with
41 the licensing, employment or providing of credit or insurance to such
42 individual; provided, further, that no person shall be required to
43 divulge information pertaining to any arrest or criminal accusation of
44 such individual not then pending against that individual which was
45 followed by a termination of that criminal action or proceeding in favor
46 of such individual, as defined in subdivision two of section 160.50 of
47 the criminal procedure law, or by a youthful offender adjudication, as
48 defined in subdivision one of section 720.35 of the criminal procedure
49 law, or by a conviction for a violation sealed pursuant to section
50 160.55 of the criminal procedure law, or by a conviction which is sealed
51 pursuant to section 160.58 of the criminal procedure law, OR BY A
52 CONVICTION WHICH IS SEALED PURSUANT TO SECTION 160.65 OF THE CRIMINAL
53 PROCEDURE LAW. The provisions of this subdivision shall not apply to the
54 licensing activities of governmental bodies in relation to the regu-
55 lation of guns, firearms and other deadly weapons or in relation to an
56 application for employment as a police officer or peace officer as those
S. 4031 5
1 terms are defined in subdivisions thirty-three and thirty-four of
2 section 1.20 of the criminal procedure law; provided further that the
3 provisions of this subdivision shall not apply to an application for
4 employment or membership in any law enforcement agency with respect to
5 any arrest or criminal accusation which was followed by a youthful
6 offender adjudication, as defined in subdivision one of section 720.35
7 of the criminal procedure law, or by a conviction for a violation sealed
8 pursuant to section 160.55 of the criminal procedure law, or by a
9 conviction which is sealed pursuant to section 160.58 of the criminal
10 procedure law, OR BY A CONVICTION WHICH IS SEALED PURSUANT TO SECTION
11 160.65 OF THE CRIMINAL PROCEDURE LAW.
12 S 4. This act shall take effect on the one hundred eightieth day after
13 it shall have become a law and shall apply to all convictions occurring
14 prior to, on, and after such date.
