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.
LBD11910-05-9
S. 6183--A 2
1 vision two of section 40.10 of this chapter, those offenses shall be
2 considered 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, if
42 more 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 other
S. 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 [the
11 criminal 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 required
24 sworn statement of the reasons why the court should grant the relief
25 requested; or
26 (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 years
37 have passed since the imposition of the sentence on the defendant's
38 latest conviction or, if the defendant was sentenced to a period of
39 incarceration, including a period of incarceration imposed in conjunc-
40 tion with a sentence of probation, the defendant's latest release from
41 incarceration. In calculating the ten year period under this subdivi-
42 sion, any period of time the defendant spent incarcerated after the
43 conviction for which the application for sealing is sought, shall be
44 excluded and such ten year period shall be extended by a period or peri-
45 ods 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 the
8 application in order to consider any evidence offered by either party
9 that would aid the sentencing judge in his or her decision whether to
10 seal the records of the defendant's convictions. No hearing is required
11 if 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-
20 ty or supreme court shall consider any relevant factors, including but
21 not limited to:
22 (a) the amount of time that has elapsed since the defendant's last
23 conviction;
24 (b) the circumstances and seriousness of the offense for which the
25 defendant is seeking relief, including whether the arrest charge was not
26 an eligible offense;
27 (c) the circumstances and seriousness of any other offenses for which
28 the defendant stands convicted;
29 (d) the character of the defendant, including any measures that the
30 defendant has taken toward rehabilitation, such as participating in
31 treatment programs, work, or schooling, and participating in community
32 service or other volunteer programs;
33 (e) any statements made by the victim of the offense for which the
34 defendant is seeking relief;
35 (f) the impact of sealing the defendant's record upon his or her reha-
36 bilitation and upon his or her successful and productive reentry and
37 reintegration into society; and
38 (g) the impact of sealing the defendant's record on public safety and
39 upon 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 as
S. 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 included
35 within the definition of a conviction for the purposes of any criminal
36 proceeding in which the fact of a prior conviction would enhance a
37 penalty or is an element of the offense charged.
38 11.] 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.