Bill Text: NY S05161 | 2023-2024 | 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) 2024-01-03 - REFERRED TO CODES [S05161 Detail]

Download: New_York-2023-S05161-Introduced.html

---

                STATE OF NEW YORK
        ________________________________________________________________________

                                          5161

                               2023-2024 Regular Sessions

                    IN SENATE

                                    February 23, 2023
                                       ___________

        Introduced  by Sen. HOYLMAN-SIGAL -- 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
     6  offense defined in subdivision five of section 410.91  of  this  chapter
     7  who  has successfully completed a judicial diversion program under arti-
     8  cle two hundred sixteen of this chapter, or one of the programs  hereto-
     9  fore known as drug treatment alternative to prison or another judicially
    10  sanctioned  drug treatment program of similar duration, requirements and
    11  level of supervision, and has completed the  sentence  imposed  for  the
    12  offense  or  offenses,  [is  eligible  to]  shall  have  such offense or
    13  offenses sealed 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's
    19  motion,]  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
    24  [three]  five  of  the defendant's prior [eligible] misdemeanors, [which

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD07176-01-3
        S. 5161                             2

     1  for purposes  of  this  subdivision  shall  be  limited  to  misdemeanor
     2  offenses defined in article two hundred twenty or two hundred twenty-one
     3  of  the  penal law.   The court may only seal the records of the defend-
     4  ant's arrests, prosecutions and convictions when] provided that a misde-
     5  meanor for which registration as a sex offender is required shall not be
     6  sealed pursuant to this section. The court may seal such records when:
     7    (a)  the sentencing court has requested and received from the division
     8  of criminal justice services or the Federal Bureau  of  Investigation  a
     9  fingerprint  based  criminal  history record of the defendant, including
    10  any sealed or suppressed information. The division of  criminal  justice
    11  services  shall also include a criminal history report, if any, from the
    12  Federal Bureau of Investigation regarding any criminal history  informa-
    13  tion  that  occurred  in  other  jurisdictions.  The  division is hereby
    14  authorized to receive such information from the Federal Bureau of Inves-
    15  tigation for this purpose. The parties shall  be  permitted  to  examine
    16  these records;
    17    (b)  the  defendant or court has identified the misdemeanor conviction
    18  or convictions for which relief may be granted;
    19    (c) the court has received documentation that the sentences imposed on
    20  the [eligible] misdemeanor convictions have been  completed,  or  if  no
    21  such  documentation  is reasonably available, a sworn affidavit that the
    22  sentences imposed on the prior misdemeanors have been completed; and
    23    (d) the court has notified the district attorney of each  jurisdiction
    24  in  which the defendant has been convicted of an offense with respect to
    25  which sealing is sought, and the court or  courts  of  record  for  such
    26  offenses,  that  the  court  is  considering  sealing the records of the
    27  defendant's [eligible] misdemeanor convictions. Both the district attor-
    28  ney and the court shall be given a reasonable opportunity,  which  shall
    29  not  be  less than thirty days, in which to comment and submit materials
    30  to aid the court in making such a determination.
    31    § 3. Subdivision 3 of section 160.58 of the criminal procedure law, as
    32  added by section 3 of part AAA of chapter 56 of the  laws  of  2009,  is
    33  amended to read as follows:
    34    3. At the request of the defendant or the district attorney of a coun-
    35  ty  in  which the defendant committed a crime that is the subject of the
    36  sealing application, the court [may] shall conduct a hearing to consider
    37  and review any relevant evidence offered by either party that would  aid
    38  the court in its decision whether to seal the records of the defendant's
    39  arrests, prosecutions and convictions. In making such [a] determination,
    40  the court shall consider any relevant factors, including but not limited
    41  to the following factors: (i) the circumstances [and seriousness] of the
    42  offense or offenses that resulted in the conviction or convictions; (ii)
    43  [the  character  of the defendant, including his or her] the defendant's
    44  completion of the judicially sanctioned treatment program  as  described
    45  in  subdivision  one  of  this  section;  (iii) the defendant's criminal
    46  conviction history taking into account the time that has  elapsed  since
    47  the  occurrence  of  any  conviction and the age of the defendant at the
    48  time of such conviction; and (iv) the impact of sealing the  defendant's
    49  records  upon  his  or  her rehabilitation and his or her successful and
    50  productive reentry and reintegration into society, and on public safety.
    51    § 4. Subdivision 2 of section 170.55 of the criminal procedure law, as
    52  amended by chapter 222 of the laws  of  1994,  is  amended  to  read  as
    53  follows:
    54    2.  An  adjournment in contemplation of dismissal is an adjournment of
    55  the action without date ordered [with a view to ultimate]  intended  for
    56  the  dismissal  of  the accusatory instrument in furtherance of justice.
        S. 5161                             3

     1  Upon issuing such an order, the court must release the defendant on  his
     2  own recognizance.  [Upon application of the people, made at any time not
     3  more  than  six months, or in the case of a family offense as defined in
     4  subdivision  one  of section 530.11 of this chapter, one year, after the
     5  issuance of such order, the court may restore the case to  the  calendar
     6  upon  a  determination that dismissal of the accusatory instrument would
     7  not be in furtherance of justice, and the action must thereupon proceed.
     8  If the case is not so restored within such six months or one year  peri-
     9  od,  the  accusatory  instrument  is,  at the expiration of such period,
    10  deemed to have been dismissed by the court in furtherance  of  justice.]
    11  At  any  time  prior to dismissal the court may modify the conditions or
    12  extend or reduce the term of adjournment, except that the  total  period
    13  of  adjournment shall not exceed ninety days, or in the case of a family
    14  offense as defined in section 530.11 of  this  chapter,  the  period  of
    15  adjournment  shall  not  be  more  than  one year. Upon violation of any
    16  condition fixed by the court, the court may revoke its order and restore
    17  the case to the calendar and the prosecution may proceed. If the case is
    18  not so restored to the calendar during the period fixed  by  the  court,
    19  the  accusatory  instrument is, at the expiration of such period, deemed
    20  to have been dismissed.
    21    § 5. Section 170.56 of the criminal procedure law, as added by chapter
    22  1042 of the laws of 1971, subdivision 1 as amended by chapter 92 of  the
    23  laws  of 2021 and subdivision 3 as amended by chapter 905 of the laws of
    24  1977, is amended to read as follows:
    25  § 170.56 Adjournment in contemplation of dismissal  in  cases  involving
    26             marihuana.
    27    1.  Upon or after arraignment in a local criminal court upon an infor-
    28  mation, a prosecutor's information or a misdemeanor complaint, where the
    29  sole remaining count or counts  charge  a  violation  or  violations  of
    30  former  section  222.10, 222.15, 222.25, 222.30, 222.45 or 222.50 of the
    31  penal law, or upon summons for a nuisance offense under  section  sixty-
    32  five-c  of  the alcoholic beverage control law and before the entry of a
    33  plea of guilty thereto or commencement of a trial  thereof,  the  court,
    34  upon  motion of a defendant, may order that all proceedings be suspended
    35  and the action adjourned in contemplation of dismissal, or upon a  find-
    36  ing  that  adjournment  would  not be necessary [or appropriate] and the
    37  setting forth in the record  of  the  reasons  for  such  findings,  may
    38  dismiss  in furtherance of justice the accusatory instrument[; provided,
    39  however, that the court may not order such adjournment in  contemplation
    40  of  dismissal or dismiss the accusatory instrument if: (a) the defendant
    41  has  previously  been  granted  such  adjournment  in  contemplation  of
    42  dismissal,  or (b) the defendant has previously been granted a dismissal
    43  under this section, or (c) the defendant has previously  been  convicted
    44  of any offense involving controlled substances, or (d) the defendant has
    45  previously  been convicted of a crime and the district attorney does not
    46  consent or (e) the defendant has previously been adjudicated a  youthful
    47  offender on the basis of any act or acts involving controlled substances
    48  and  the district attorney does not consent. Notwithstanding the limita-
    49  tions set forth in this  subdivision,  the  court  may  order  that  all
    50  proceedings  be  suspended  and the action adjourned in contemplation of
    51  dismissal  based  upon  a  finding  of  exceptional  circumstances.  For
    52  purposes  of  this  subdivision,  exceptional  circumstances exist when,
    53  regardless of the ultimate disposition of the case, the entry of a  plea
    54  of guilty is likely to result in severe or ongoing consequences, includ-
    55  ing, but not limited to, potential or actual immigration consequences].
        S. 5161                             4

     1    2.  [Upon ordering the action adjourned in contemplation of dismissal,
     2  the  court  must  set and specify such conditions for the adjournment as
     3  may be appropriate, and such conditions may include placing the  defend-
     4  ant  under  the supervision of any public or private agency. At any time
     5  prior  to  dismissal  the  court  may modify the conditions or extend or
     6  reduce the term of the adjournment, except  that  the  total  period  of
     7  adjournment  shall  not  exceed  twelve  months.   Upon violation of any
     8  condition fixed by the court, the court may revoke its order and restore
     9  the case to the calendar and the prosecution thereupon must proceed.  If
    10  the case is not so restored to the calendar during the period  fixed  by
    11  the court, the accusatory instrument is, at the expiration of such peri-
    12  od,  deemed  to  have  been dismissed in the furtherance of justice.] An
    13  adjournment in contemplation of  dismissal  is  an  adjournment  of  the
    14  action without date ordered intended for the dismissal of the accusatory
    15  instrument  in  furtherance  of justice. Upon issuing such an order, the
    16  court must release the defendant on his own recognizance.   At any  time
    17  prior  to  dismissal  the  court  may modify the conditions or extend or
    18  reduce the term of adjournment, except that the total period of adjourn-
    19  ment shall not exceed ninety days. Upon violation of any condition fixed
    20  by the court, the court may revoke its order and restore the case to the
    21  calendar and the prosecution may proceed. If the case is not so restored
    22  to the calendar during the period fixed by  the  court,  the  accusatory
    23  instrument  is,  at  the  expiration of such period, deemed to have been
    24  dismissed.
    25    3. Upon or after dismissal of such charges against  a  defendant  [not
    26  previously  convicted  of a crime,] the court shall order that all offi-
    27  cial records and papers, relating to the defendant's arrest  and  prose-
    28  cution, whether on file with the court, a police agency, or the New York
    29  state  division  of  criminal justice services, be sealed and, except as
    30  otherwise provided in paragraph (d) of subdivision one of section 160.50
    31  of this chapter, not made available to any person or public  or  private
    32  agency[;  except,  such records shall be made available under order of a
    33  court for the purpose of determining whether, in subsequent proceedings,
    34  such person qualifies under this section for a dismissal or  adjournment
    35  in contemplation of dismissal of the accusatory instrument].
    36    4. Upon the granting of an order pursuant to subdivision three of this
    37  section,  the  arrest  and prosecution shall be deemed a nullity and the
    38  defendant shall be restored, in contemplation of law, to the  status  he
    39  occupied before his arrest and prosecution.
    40    §  6.  This  act  shall take effect on the sixtieth day after it shall
    41  have become a law.