Bill Text: NY S06613 | 2019-2020 | General Assembly | Introduced

---

Bill Title: Provides for vacating records for certain proceedings.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2019-06-20 - RECOMMIT, ENACTING CLAUSE STRICKEN [S06613 Detail]

Download: New_York-2019-S06613-Introduced.html

---

                STATE OF NEW YORK
        ________________________________________________________________________

                                          6613

                               2019-2020 Regular Sessions

                    IN SENATE

                                      June 20, 2019
                                       ___________

        Introduced  by  Sen.  BAILEY -- 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  vacating
          records  for  certain proceedings; and to repeal certain provisions of
          such law relating thereto

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:

     1    Section  1.  Paragraph  (k)  of subdivision 1 of section 440.10 of the
     2  criminal procedure law, as added by a  chapter  of  the  laws  of  2019,
     3  amending the penal law and the criminal procedure law relating to vacat-
     4  ing  records  for  certain proceedings, as proposed in legislative bills
     5  numbers S. 6579-A and A. 8420-A, is REPEALED and a new paragraph (k)  is
     6  added to read as follows:
     7    (k)  The  judgment  occurred prior to the effective date of this para-
     8  graph and is a conviction for an offense as defined in subparagraph  (i)
     9  or  (ii) of paragraph (k) of subdivision three of section 160.50 of this
    10  part, in which case the court shall presume that a  conviction  by  plea
    11  for  the aforementioned offenses was not knowing, voluntary and intelli-
    12  gent if it has severe or ongoing consequences, including but not limited
    13  to potential or actual immigration consequences, and shall presume  that
    14  a  conviction  by  verdict  for  the aforementioned offenses constitutes
    15  cruel and unusual punishment under section five of article  one  of  the
    16  state  constitution,  based  on those consequences. The people may rebut
    17  these presumptions.
    18    § 2. Paragraph (k) of subdivision 3 of section 160.50 of the  criminal
    19  procedure law, as amended by a chapter of the laws of 2019, amending the
    20  penal  law  and  the criminal procedure law relating to vacating records
    21  for certain proceedings, as proposed in  legislative  bills  numbers  S.
    22  6579-A and A. 8420-A, is amended to read as follows:
    23    (k)  (i)  The  [accusatory  instrument  alleged]  conviction was for a
    24  violation of[:

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD13421-09-9
        S. 6613                             2

     1    (i)] article two hundred twenty or section 240.36  of  the  penal  law
     2  prior  to  the  effective  date of article two hundred twenty-one of the
     3  penal law, and the sole controlled substance involved was marihuana  and
     4  the conviction was only for a violation or violations; or
     5    (ii)  the  conviction  is  for an offense defined in section 221.05 or
     6  221.10 of the penal law prior to the effective date of  the  chapter  of
     7  the laws of two thousand nineteen that amended this [section] paragraph;
     8  or
     9    (iii)  the  conviction  is for an offense defined in section 221.05 or
    10  221.10 of the penal law.
    11    No defendant shall be required or permitted to waive  eligibility  for
    12  sealing  or  expungement pursuant to this paragraph as part of a plea of
    13  guilty, sentence  or  any  agreement  related  to  a  conviction  for  a
    14  violation  of  section 221.05 or section 221.10 of the penal law and any
    15  such waiver shall be deemed void and wholly unenforceable.
    16    § 3. Paragraph (a) of subdivision 5 of section 160.50 of the  criminal
    17  procedure  law,  as added by a chapter of the laws of 2019, amending the
    18  penal law and the criminal procedure law relating  to  vacating  records
    19  for  certain  proceedings,  as  proposed in legislative bills numbers S.
    20  6579-A and A. 8420-A, is amended to read as follows:
    21    (a) Expungement of certain marihuana-related records. [Where an  accu-
    22  satory  instrument  alleged]  A  conviction  for an offense described in
    23  paragraph (k) of subdivision three  of  this  section[,  such  count  or
    24  counts  of the accusatory instrument in such criminal action or proceed-
    25  ing] shall, on and after  the  effective  date  of  this  paragraph,  in
    26  accordance  with  the  provisions  of  this  paragraph,  be  vacated and
    27  dismissed, and all records of  such  [count  or  counts]  conviction  or
    28  convictions and[, in the absence of any other valid count or counts, all
    29  records  of  such  action  or  proceeding] related to such conviction or
    30  convictions shall be expunged, as described in subdivision forty-five of
    31  section 1.20 of this chapter, and the matter shall be considered  termi-
    32  nated in favor of the accused and deemed a nullity, having been rendered
    33  by  this  paragraph  legally  invalid.  All  such records for an offense
    34  described in this paragraph where  the  conviction  was  entered  on  or
    35  before  the  effective  date  of  the  chapter  of the laws of 2019 that
    36  amended this paragraph shall be expunged promptly and, in any event,  no
    37  later than one year after such effective date.
    38    §  4.  Subparagraph  (i)  of paragraph (b) of subdivision 5 of section
    39  160.50 of the criminal procedure law, as added by a chapter of the  laws
    40  of  2019, amending the penal law and the criminal procedure law relating
    41  to vacating records for certain proceedings, as proposed in  legislative
    42  bills numbers S. 6579-A and A. 8420-A, is amended to read as follows:
    43    (i)  the  chief  administrator of the courts shall promptly notify the
    44  commissioner of the division of criminal justice services and the  heads
    45  of  all  appropriate police departments, district attorney's offices and
    46  other law enforcement agencies of all  [counts]  convictions  that  have
    47  been vacated and dismissed pursuant to paragraph (a) of this subdivision
    48  and  that[,  in  the  absence  of  any other valid count or counts,] all
    49  records [of such action or proceeding] related to such convictions shall
    50  be expunged and the matter shall be considered terminated  in  favor  of
    51  the  accused and deemed a nullity, having been rendered legally invalid.
    52  Upon receipt of notification of such vacatur, dismissal and expungement,
    53  all  records  relating  to  such  [count  or   counts]   conviction   or
    54  convictions,  or  the criminal action or proceeding, as the case may be,
    55  shall be marked as expunged by conspicuously indicating on the  face  of
    56  the record and on each page or at the beginning of the digitized file of
        S. 6613                             3

     1  the  record  that  the  record has been designated as expunged. Upon the
     2  written request of the individual whose case has been expunged or  their
     3  designated  agent,  such  records  shall  be destroyed. Such records and
     4  papers  shall not be made available to any person, except the individual
     5  whose case has been expunged or such person's designated agent; and
     6    § 5. This act shall take effect on the  same  date  and  in  the  same
     7  manner  as a chapter of the laws of 2019, amending the penal law and the
     8  criminal  procedure  law  relating  to  vacating  records  for   certain
     9  proceedings,  as  proposed in legislative bills numbers S. 6579-A and A.
    10  8420-A, takes effect.