Bill Text: NY S06183 | 2019-2020 | General Assembly | Amended
Bill Title: Provides that certain applicants be eligible for conviction sealing.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2020-01-08 - REFERRED TO CODES [S06183 Detail]
Download: New_York-2019-S06183-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 6183--A 2019-2020 Regular Sessions IN SENATE May 21, 2019 ___________ Introduced by Sen. MYRIE -- read twice and ordered printed, and when printed to be committed to the Committee on Codes -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee AN ACT to amend the criminal procedure law, in relation to eligibility for conviction sealing for certain applicants The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Section 160.59 of the criminal procedure law, as added by 2 section 48 of part WWW of chapter 59 of the laws of 2017 and paragraph 3 (a) of subdivision 2 and subdivision 11 as amended by chapter 60 of the 4 laws of 2017, is amended to read as follows: 5 § 160.59 Sealing of certain convictions. 6 1. Definitions: As used in this section, the following terms shall 7 have the following meanings: 8 (a) "Eligible offense" shall mean a violation of subdivision one of 9 section eleven hundred ninety-two of the vehicle and traffic law or a 10 violation of subdivision two of section 240.37 of the penal law or any 11 crime defined in the laws of this state other than a sex offense defined 12 in article one hundred thirty of the penal law, an offense defined in 13 article two hundred sixty-three of the penal law, a felony offense 14 defined in article one hundred twenty-five of the penal law, a violent 15 felony offense defined in section 70.02 of the penal law, a class A 16 felony offense defined in the penal law, a felony offense defined in 17 article one hundred five of the penal law where the underlying offense 18 is not an eligible offense, an attempt to commit an offense that is not 19 an eligible offense if the attempt is a felony, or an offense for which 20 registration as a sex offender is required pursuant to article six-C of 21 the correction law. For the purposes of this section, where the 22 [defendant] applicant is convicted of more than one eligible offense, 23 [committed as part of the same criminal transaction as defined in subdi-EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD11910-05-9S. 6183--A 2 1vision two of section 40.10 of this chapter, those offenses shall be2considered one eligible offense] charged in more than one count in the 3 same indictment, information or complaint, or where the applicant was 4 convicted of more than one eligible offense charged in multiple indict- 5 ments, informations or complaints filed in the same court prior to the 6 entry of judgment on any of such indictments, informations or 7 complaints, all such offenses shall be considered one eligible offense. 8 (b) "Sentencing judge" shall mean the judge who pronounced sentence 9 upon the conviction under consideration, or if that judge is no longer 10 sitting in a court in the jurisdiction in which the conviction was 11 obtained, any other judge who is sitting in the criminal court where the 12 judgment of conviction was entered. 13 (c) "Prosecutor" shall mean the prosecutor's office that prosecuted 14 the eligible offense. 15 1-a. The chief administrator of the courts shall, pursuant to section 16 10.40 of this chapter, prescribe a form application which may be used by 17 a defendant to apply for sealing pursuant to this section. Such form 18 application shall include all the essential elements required by this 19 section to be included in an application for sealing. Nothing in this 20 subdivision shall be read to require a defendant to use such form appli- 21 cation to apply for sealing. 22 2. (a) [A defendant] An individual who has been convicted of up to 23 [two] five eligible criminal offenses but not more than [one] two felony 24 [offense] offenses may apply to the court in which he or she was 25 convicted of the most serious eligible offense to have such conviction 26 or convictions sealed. If all offenses are offenses with the same clas- 27 sification, the application shall be made to the court in which the 28 [defendant] applicant was last convicted. 29 (b) An application shall contain (i) a copy of a certificate of dispo- 30 sition or other similar documentation for any offense for which the 31 [defendant] applicant has been convicted, or an explanation of why such 32 certificate or other documentation is not available; (ii) a sworn state- 33 ment of the [defendant] applicant as to whether he or she has filed, or 34 then intends to file, any application for sealing of any other eligible 35 offense; (iii) a copy of any other such application that has been filed; 36 and (iv) a sworn statement as to the conviction or convictions for which 37 relief is being sought[; and (v)]. Applicants may submit a sworn state- 38 ment of the reason or reasons why the court should, in its discretion, 39 grant such sealing, along with any supporting documentation. 40 (c) A copy of any application for such sealing shall be served upon 41 the [district attorney of the county in which the conviction, or, if42more than one, the convictions, was or were obtained] prosecutor that 43 prosecuted the eligible offense for which a conviction was obtained. 44 The [district attorney] prosecutor shall notify the court within forty- 45 five days if he or she objects to the application for sealing. Failure 46 to object within this period shall indicate consent to the application. 47 (d) When such application is filed with the court, it shall be 48 assigned to the sentencing judge unless more than one application is 49 filed in which case the application shall be assigned to the local 50 court, county court or the supreme court of the county in which the 51 criminal court is located, who shall request and receive from the divi- 52 sion of criminal justice services a fingerprint based criminal history 53 record of the [defendant] applicant, including any sealed or suppressed 54 records. The division of criminal justice services also shall include a 55 criminal history report, if any, from the federal bureau of investi- 56 gation regarding any criminal history information that occurred in otherS. 6183--A 3 1 jurisdictions. The division is hereby authorized to receive such infor- 2 mation from the federal bureau of investigation for this purpose, and to 3 make such information available to the court, which may make this infor- 4 mation available to the district attorney and the [defendant] applicant. 5 3. The sentencing judge, or local, county or supreme court shall 6 summarily deny the [defendant's] applicant's application when: 7 (a) the [defendant] applicant is required to register as a sex offen- 8 der pursuant to article six-C of the correction law; or 9 (b) the [defendant] applicant has previously obtained sealing of the 10 maximum number of convictions allowable under section 160.58 of [the11criminal procedure law] this article; or 12 (c) the [defendant] applicant has previously obtained sealing of the 13 maximum number of convictions allowable under subdivision four of this 14 section; or 15 (d) the time period specified in subdivision five of this section has 16 not yet been satisfied; or 17 (e) the [defendant] applicant has an undisposed arrest or charge pend- 18 ing; or 19 (f) the [defendant] applicant was convicted of any crime that is not 20 eligible for sealing under this section after the date of the entry of 21 [judgement] judgment of the last conviction for which sealing is sought; 22 or 23 (g) [the defendant has failed to provide the court with the required24sworn statement of the reasons why the court should grant the relief25requested; or26(h)] the [defendant] applicant has been convicted of [two] three or 27 more felonies or more than [two] five crimes. 28 4. Provided that the application is not summarily denied for the 29 reasons set forth in subdivision three of this section, [a defendant] an 30 applicant who stands convicted of up to [two] five eligible criminal 31 offenses[,] may obtain sealing of violations of subdivision one of 32 section eleven hundred ninety-two of the vehicle and traffic law and 33 subdivision two of section 240.37 of the penal law, and no more than 34 [two] five eligible offenses but not more than [one] two felony 35 [offense] offenses. 36 5. Any eligible offense may be sealed only after [at least ten years37have passed since the imposition of the sentence on the defendant's38latest conviction or, if the defendant was sentenced to a period of39incarceration, including a period of incarceration imposed in conjunc-40tion with a sentence of probation, the defendant's latest release from41incarceration. In calculating the ten year period under this subdivi-42sion, any period of time the defendant spent incarcerated after the43conviction for which the application for sealing is sought, shall be44excluded and such ten year period shall be extended by a period or peri-45ods equal to the time served under such incarceration.]: 46 (a) at least one year has passed since the date of applicant's latest 47 conviction if the applicant was last convicted of a misdemeanor or 48 violation offense. In calculating this period, any period of time the 49 applicant spent incarcerated for this conviction, including a period of 50 incarceration imposed in conjunction with a sentence of probation, shall 51 be excluded and such one year period shall be extended by a period equal 52 to the time served under such incarceration; or 53 (b) at least three years have passed since the date of applicant's 54 latest conviction if the applicant was last convicted of a felony 55 offense. In calculating this period, any period of time the applicant 56 spent incarcerated for this conviction, including a period of incarcera-S. 6183--A 4 1 tion imposed in conjunction with a sentence of probation, shall be 2 excluded and such three year period shall be extended by a period equal 3 to the time served under such incarceration. 4 6. Upon determining that the application is not subject to mandatory 5 denial pursuant to subdivision three of this section and that the appli- 6 cation is opposed by the [district attorney] prosecutor, the sentencing 7 judge or local, county or supreme court shall [conduct a hearing on the8application in order to consider any evidence offered by either party9that would aid the sentencing judge in his or her decision whether to10seal the records of the defendant's convictions. No hearing is required11if the district attorney does not oppose the application] inform the 12 applicant of his or her right to supplement their application with addi- 13 tional materials that would aid the sentencing judge in his or her deci- 14 sion or to a hearing on the application in order to consider arguments 15 by either party that would aid the sentencing judge in his or her deci- 16 sion. Once the applicant indicates whether he or she intends to proceed 17 with or without supplementation or a hearing, the sentencing judge or 18 local, county or supreme court, may proceed. 19 7. [In considering any such application, the sentencing judge or coun-20ty or supreme court shall consider any relevant factors, including but21not limited to:22(a) the amount of time that has elapsed since the defendant's last23conviction;24(b) the circumstances and seriousness of the offense for which the25defendant is seeking relief, including whether the arrest charge was not26an eligible offense;27(c) the circumstances and seriousness of any other offenses for which28the defendant stands convicted;29(d) the character of the defendant, including any measures that the30defendant has taken toward rehabilitation, such as participating in31treatment programs, work, or schooling, and participating in community32service or other volunteer programs;33(e) any statements made by the victim of the offense for which the34defendant is seeking relief;35(f) the impact of sealing the defendant's record upon his or her reha-36bilitation and upon his or her successful and productive reentry and37reintegration into society; and38(g) the impact of sealing the defendant's record on public safety and39upon the public's confidence in and respect for the law] Upon determin- 40 ing that the application is not subject to mandatory denial pursuant to 41 subdivision three of this section, the sentencing judge or local, county 42 or supreme court shall order sealing, unless the prosecutor shows by 43 clear and convincing evidence that exceptional circumstances weigh 44 against such relief. In determining whether exceptional circumstances 45 exist the court shall consider if the sealing would create an unreason- 46 able risk to public safety, balanced against the benefit of sealing the 47 record upon the applicant's successful and productive reentry and rein- 48 tegration into society. 49 8. When a sentencing judge or local, county or supreme court orders 50 sealing pursuant to this section, all official records and papers, 51 including judgments and orders of a court but not including published 52 court decisions or opinions or records and briefs on appeal, relating to 53 the arrests, prosecutions, and convictions, including all duplicates and 54 copies thereof, on file with the division of criminal justice services 55 or any court, police agency or prosecutor's office shall be sealed and 56 not made available to any person or public or private agency except asS. 6183--A 5 1 provided for in subdivision nine of this section; provided, however, the 2 division shall retain any fingerprints, palmprints and photographs, or 3 digital images of the same. The clerk of such court shall immediately 4 notify the commissioner of the division of criminal justice services, 5 the heads of all appropriate police departments and other law enforce- 6 ment agencies, regarding the records that shall be sealed pursuant to 7 this section. The clerk also shall notify any court in which the 8 [defendant] applicant has stated, pursuant to paragraph (b) of subdivi- 9 sion two of this section, that he or she has filed or intends to file an 10 application for sealing of any other eligible offense. 11 9. Records sealed pursuant to this section shall be made available to: 12 (a) the [defendant] applicant or the [defendant's] applicant's desig- 13 nated agent; 14 (b) qualified agencies, as defined in subdivision nine of section 15 eight hundred thirty-five of the executive law, and federal and state 16 law enforcement agencies, when acting within the scope of their law 17 enforcement duties; or 18 (c) any state or local officer or agency with responsibility for the 19 issuance of licenses to possess guns, when the person has made applica- 20 tion for such a license; or 21 (d) any prospective employer of a police officer or peace officer as 22 those terms are defined in subdivisions thirty-three and thirty-four of 23 section 1.20 of this chapter, in relation to an application for employ- 24 ment as a police officer or peace officer; provided, however, that every 25 person who is an applicant for the position of police officer or peace 26 officer shall be furnished with a copy of all records obtained under 27 this paragraph and afforded an opportunity to make an explanation there- 28 to; or 29 (e) the criminal justice information services division of the federal 30 bureau of investigation, for the purposes of responding to queries to 31 the national instant criminal background check system regarding attempts 32 to purchase or otherwise take possession of firearms, as defined in 18 33 USC 921 (a) (3). 34 10. [A conviction which is sealed pursuant to this section is included35within the definition of a conviction for the purposes of any criminal36proceeding in which the fact of a prior conviction would enhance a37penalty or is an element of the offense charged.3811.] No [defendant] person shall be required or permitted to waive 39 eligibility for sealing pursuant to this section as part of a plea of 40 guilty, sentence or any agreement related to a conviction for an eligi- 41 ble offense and any such waiver shall be deemed void and wholly unen- 42 forceable. 43 11. Denial under this section is without prejudice to subsequent 44 relief under this section. 45 12. An application under this section, and all pertinent papers and 46 documents, shall be confidential and may not be made available to any 47 person or public or private agency except where specifically authorized 48 by the court. 49 § 2. This act shall take effect immediately.
