Bill Text: NY S06561 | 2019-2020 | General Assembly | Introduced
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 [S06561 Detail]
Download: New_York-2019-S06561-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 6561 2019-2020 Regular Sessions IN SENATE June 16, 2019 ___________ Introduced by Sen. MYRIE -- read twice and ordered printed, and when printed to be committed to the Committee on Rules 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-24vision two of section 40.10 of this chapter, those offenses shall be25considered one eligible offense] for which they were charged in separate EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD13177-01-9S. 6561 2 1 counts of one indictment, information or complaint, or for which they 2 were charged in two or more indictments, informations or complaints, 3 filed in the same court prior to entry of judgment under any of them, 4 those offenses shall be considered one eligible offense. 5 (b) "Sentencing judge" shall mean the judge who pronounced sentence 6 upon the conviction under consideration, or if that judge is no longer 7 sitting in a court in the jurisdiction in which the conviction was 8 obtained, any other judge who is sitting in the criminal court where the 9 judgment of conviction was entered. 10 (c) "Prosecutor" shall mean the prosecutor's office that prosecuted 11 the eligible offense. 12 1-a. The chief administrator of the courts shall, pursuant to section 13 10.40 of this chapter, prescribe a form application which may be used by 14 a defendant to apply for sealing pursuant to this section. Such form 15 application shall include all the essential elements required by this 16 section to be included in an application for sealing. Nothing in this 17 subdivision shall be read to require a defendant to use such form appli- 18 cation to apply for sealing. 19 2. (a) [A defendant] An individual who has been convicted of up to 20 [two] four eligible criminal offenses but not more than one felony 21 offense may apply to the court in which [he or she was] they were 22 convicted of [the] their most serious eligible offense to have such 23 conviction or convictions sealed. If all offenses are offenses with the 24 same classification, the application shall be made to the court in which 25 the [defendant] applicant was last convicted. 26 (b) An application shall contain (i) a copy of a certificate of dispo- 27 sition or other similar documentation for any offense for which the 28 [defendant] applicant has been convicted, or an explanation of why such 29 certificate or other documentation is not available; (ii) a sworn state- 30 ment of the [defendant] applicant as to whether [he or she has] they 31 have filed, or then intends to file, any application for sealing of any 32 other eligible offense; (iii) a copy of any other such application that 33 has been filed; and (iv) a sworn statement as to the conviction or 34 convictions for which relief is being sought[; and (v)]. Applicants may 35 submit a sworn statement of the reason or reasons why the court should, 36 in its discretion, grant such sealing, along with any supporting 37 documentation. 38 (c) A copy of any application for such sealing shall be served upon 39 the [district attorney of the county in which the conviction, or, if40more than one, the convictions, was or were obtained] prosecutor which 41 prosecuted the eligible offense for which a conviction was obtained. 42 The [district attorney] prosecutor shall notify the court within forty- 43 five days if [he or she objects] they object to the application for 44 sealing. If the prosecutor has not notified the court within forty-five 45 days of their objection to the application for sealing, the court shall 46 proceed with decision on 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. 6561 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 or more felo- 27 nies or more than [two] four 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] four 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] four eligible offenses but not more than one felony offense. 35 5. Any eligible offense may be sealed only after at least ten years 36 have passed since the imposition of the sentence on the defendant's 37 latest conviction or, if the defendant was sentenced to a period of 38 incarceration, including a period of incarceration imposed in conjunc- 39 tion with a sentence of probation, the defendant's latest release from 40 incarceration. In calculating the ten year period under this subdivi- 41 sion, any period of time the defendant spent incarcerated after the 42 conviction for which the application for sealing is sought, shall be 43 excluded and such ten year period shall be extended by a period or peri- 44 ods equal to the time served under such incarceration. 45 6. Upon determining that the application is not subject to mandatory 46 denial pursuant to subdivision three of this section and that the appli- 47 cation is opposed by the [district attorney] prosecutor, the sentencing 48 judge or local, county or supreme court shall [conduct a hearing on the49application in order to consider any evidence offered by either party50that would aid the sentencing judge in his or her decision whether to51seal the records of the defendant's convictions. No hearing is required52if the district attorney does not oppose the application] inform the 53 applicant of their right to supplement their application with additional 54 materials that would aid the sentencing judge in their decision or to a 55 hearing on the application in order to consider arguments by either 56 party that would aid the sentencing judge in their decision. Once theS. 6561 4 1 applicant indicates whether they intend to proceed with or without 2 supplementation or a hearing, the sentencing judge or local, county or 3 supreme court, may proceed. The court may hold a hearing upon request 4 of the prosecutor. 5 7. [In considering any such application, the sentencing judge or coun-6ty or supreme court shall consider any relevant factors, including but7not limited to:8(a) the amount of time that has elapsed since the defendant's last9conviction;10(b) the circumstances and seriousness of the offense for which the11defendant is seeking relief, including whether the arrest charge was not12an eligible offense;13(c) the circumstances and seriousness of any other offenses for which14the defendant stands convicted;15(d) the character of the defendant, including any measures that the16defendant has taken toward rehabilitation, such as participating in17treatment programs, work, or schooling, and participating in community18service or other volunteer programs;19(e) any statements made by the victim of the offense for which the20defendant is seeking relief;21(f) the impact of sealing the defendant's record upon his or her reha-22bilitation and upon his or her successful and productive reentry and23reintegration into society; and24(g) the impact of sealing the defendant's record on public safety and25upon the public's confidence in and respect for the law] Upon determin- 26 ing that the application is not subject to mandatory denial pursuant to 27 subdivision three of this section, the sentencing judge or local, county 28 or supreme court shall order sealing, unless the prosecutor shows that 29 exceptional circumstances weigh against such relief. In determining 30 whether exceptional circumstances exist the court shall consider if the 31 sealing would create an unreasonable risk to public safety, balanced 32 against the benefit of sealing the record upon the applicant's success- 33 ful and productive reentry and reintegration into society. 34 8. When a sentencing judge or local, county or supreme court orders 35 sealing pursuant to this section, all official records and papers, 36 including judgments and orders of a court but not including published 37 court decisions or opinions or records and briefs on appeal, relating to 38 the arrests, prosecutions, and convictions, including all duplicates and 39 copies thereof, on file with the division of criminal justice services 40 or any court, police agency or prosecutor's office shall be sealed and 41 not made available to any person or public or private agency except as 42 provided for in subdivision nine of this section; provided, however, the 43 division shall retain any fingerprints, palmprints and photographs, or 44 digital images of the same. The clerk of such court shall immediately 45 notify the commissioner of the division of criminal justice services, 46 the heads of all appropriate police departments and other law enforce- 47 ment agencies, regarding the records that shall be sealed pursuant to 48 this section. The clerk also shall notify any court in which the 49 [defendant] applicant has stated, pursuant to paragraph (b) of subdivi- 50 sion two of this section, that [he or she has] they have filed or 51 [intends] intend to file an application for sealing of any other eligi- 52 ble offense. 53 9. Records sealed pursuant to this section shall be made available to: 54 (a) the [defendant] applicant or the [defendant's] applicant's desig- 55 nated agent;S. 6561 5 1 (b) qualified agencies, as defined in subdivision nine of section 2 eight hundred thirty-five of the executive law, and federal and state 3 law enforcement agencies, when acting within the scope of their law 4 enforcement duties; or 5 (c) any state or local officer or agency with responsibility for the 6 issuance of licenses to possess guns, when the person has made applica- 7 tion for such a license; or 8 (d) any prospective employer of a police officer or peace officer as 9 those terms are defined in subdivisions thirty-three and thirty-four of 10 section 1.20 of this chapter, in relation to an application for employ- 11 ment as a police officer or peace officer; provided, however, that every 12 person who is an applicant for the position of police officer or peace 13 officer shall be furnished with a copy of all records obtained under 14 this paragraph and afforded an opportunity to make an explanation there- 15 to; or 16 (e) the criminal justice information services division of the federal 17 bureau of investigation, for the purposes of responding to queries to 18 the national instant criminal background check system regarding attempts 19 to purchase or otherwise take possession of firearms, as defined in 18 20 USC 921 (a) (3). 21 10. A conviction which is sealed pursuant to this section is included 22 within the definition of a conviction for the purposes of any criminal 23 proceeding in which the fact of a prior conviction would enhance a 24 penalty or is an element of the offense charged. 25 11. No [defendant] person shall be required or permitted to waive 26 eligibility for sealing pursuant to this section as part of a plea of 27 guilty, sentence or any agreement related to a conviction for an eligi- 28 ble offense and any such waiver shall be deemed void and wholly unen- 29 forceable. 30 12. Denial under this section is without prejudice to subsequent 31 relief under this section. 32 13. An application under this section, and all pertinent papers and 33 documents, shall be confidential and may not be made available to any 34 person or public or private agency except where specifically authorized 35 by the court. 36 § 2. This act shall take effect on the ninetieth day after it shall 37 have become a law and shall apply to all offenses committed prior to, 38 on, or after such date.
