Bill Text: NY S01708 | 2009-2010 | General Assembly | Amended
Bill Title: Permits the sealing of records of certain nonviolent criminal offenses; defines the term "eligible misdemeanor" to mean a misdemeanor that does not have as an element of the offense the use of a weapon or violence and which did not actually involve violence in its commission; defines the term, "nonsexual misdemeanor" to mean a misdemeanor under article 130 or 163 of the penal law or any offense that would require the offender to register as a sex offender under article 6-c of the correction law; provides an order granting sealing under this section shall restore the individual concerned, in the contemplation of the law, to the status such individual occupied before the arrest or institution of criminal proceedings for the crime that was the subject of the sealing.
Sponsorship: Partisan Bill (Democrat 5)
Status: (Introduced - Dead) 2010-06-04 - PRINT NUMBER 1708B [S01708 Detail]
Download: New_York-2009-S01708-Amended.html
S T A T E O F N E W Y O R K
________________________________________________________________________
1708--B
2009-2010 Regular Sessions
I N S E N A T E
February 5, 2009
___________
Introduced by Sens. SAMPSON, ADDABBO, DIAZ, HASSELL-THOMPSON, MONTGOMERY
-- read twice and ordered printed, and when printed to be committed to
the Committee on Codes -- recommitted to the Committee on Codes in
accordance with Senate Rule 6, sec. 8 -- committee discharged, bill
amended, ordered reprinted as amended and recommitted to said commit-
tee -- committee discharged, bill amended, ordered reprinted as
amended and recommitted to said committee
AN ACT to amend the criminal procedure law and the executive law, in
relation to permitting the sealing of records of certain nonviolent
misdemeanor or non-sexual misdemeanor offenses
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. This act shall be known and may be cited as the "second
2 chance for ex-offenders act".
3 S 2. The criminal procedure law is amended by adding a new section
4 160.65 to read as follows:
5 S 160.65 CONDITIONAL SEALING OF CERTAIN MISDEMEANOR OFFENSES.
6 1. FOR THE PURPOSES OF THIS SECTION, THE TERM "ELIGIBLE MISDEMEANOR"
7 SHALL BE A MISDEMEANOR OFFENSE DEFINED IN THE PENAL LAW, PROVIDED THAT
8 AN ELIGIBLE MISDEMEANOR SHALL NOT MEAN A MISDEMEANOR OFFENSE DEFINED IN
9 ARTICLE ONE HUNDRED TWENTY, ONE HUNDRED THIRTY, ONE HUNDRED THIRTY-FIVE,
10 ONE HUNDRED FIFTY, TWO HUNDRED THIRTY-FIVE, TWO HUNDRED FORTY-FIVE, TWO
11 HUNDRED SIXTY, TWO HUNDRED SIXTY-THREE, TWO HUNDRED SIXTY-FIVE OR ARTI-
12 CLE FOUR HUNDRED OF THE PENAL LAW. AN ELIGIBLE MISDEMEANOR SHALL NOT
13 INCLUDE ANY ONE OR MORE OF THE FOLLOWING: KILLING OR INJURING A POLICE
14 ANIMAL AS DEFINED IN SECTION 195.06, HARMING AN ANIMAL TRAINED TO AID A
15 PERSON WITH A DISABILITY IN THE SECOND DEGREE AS DEFINED IN SECTION
16 195.11, HARMING AN ANIMAL TRAINED TO AID A PERSON WITH A DISABILITY IN
17 THE FIRST DEGREE AS DEFINED IN SECTION 195.12, PROMOTING PROSTITUTION IN
18 THE FOURTH DEGREE AS DEFINED IN SECTION 230.20, RIOT IN THE SECOND
19 DEGREE AS DEFINED IN SECTION 240.05, INCITING TO RIOT AS DEFINED IN
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD05277-11-0
S. 1708--B 2
1 SECTION 240.08, AGGRAVATED HARASSMENT IN THE SECOND DEGREE AS DEFINED IN
2 SUBDIVISION THREE OF SECTION 240.30, CRIMINAL INTERFERENCE WITH HEALTH
3 CARE SERVICES OR RELIGIOUS WORSHIP IN THE SECOND DEGREE AS DEFINED IN
4 SECTION 240.70, HARMING A SERVICE ANIMAL IN THE SECOND DEGREE AS DEFINED
5 IN SECTION 242.10, DISSEMINATION OF AN UNLAWFUL SURVEILLANCE IMAGE IN
6 THE SECOND DEGREE AS DEFINED IN SECTION 250.55, OR ANY SPECIFIED OFFENSE
7 SUBJECT TO THE PROVISION RELATING TO HATE CRIMES AS DEFINED IN SECTION
8 485.05 OF THE PENAL LAW. ADDITIONALLY, AN ELIGIBLE MISDEMEANOR SHALL NOT
9 INCLUDE CRIMINAL SOLICITATION, CONSPIRACY, ATTEMPT, OR CRIMINAL FACILI-
10 TATION TO COMMIT ANY VIOLENT FELONY OFFENSE AS DEFINED IN SECTION 70.02
11 OF THE PENAL LAW, OR ANY SEX OFFENSE AS DEFINED UNDER SUBSECTION TWO OF
12 SECTION ONE HUNDRED SIXTY-EIGHT-A OF THE CORRECTION LAW.
13 2. A PERSON HAVING A CONVICTION FOR NO MORE THAN THREE MISDEMEANORS,
14 WHO DOES NOT STAND CONVICTED OF ANY FELONY, OR WHO IS NOT REQUIRED TO
15 MAINTAIN REGISTRATION UNDER ARTICLE SIX-C OF THE CORRECTION LAW, MAY
16 PETITION THE COURT TO CONDITIONALLY SEAL UP TO THREE ELIGIBLE MISDEMEA-
17 NORS WHEN:
18 (A) AT LEAST FIVE YEARS HAVE PAST SINCE THE COMPLETION OF A SENTENCE
19 ON AN ELIGIBLE MISDEMEANOR; AND
20 (B) SUCH PERSON HAS NOT BEEN CONVICTED OF AN OFFENSE DURING THE LAST
21 FIVE YEARS AND IS NOT THE SUBJECT OF AN UNDISPOSED ARREST.
22 3. THE PETITION AUTHORIZED BY THIS SECTION SHALL BE FILED IN THE COURT
23 OF RECORD THAT LAST IMPOSED A SENTENCE UPON PETITIONER FOR AN ELIGIBLE
24 MISDEMEANOR. ON THE DEFENDANT'S MOTION, THE COURT MAY ORDER THAT ALL
25 OFFICIAL RECORDS AND PAPERS RELATING TO THE ARREST, PROSECUTION AND
26 CONVICTION RECORDS FOR NO MORE THAN THREE OF THE DEFENDANT'S PRIOR
27 ELIGIBLE MISDEMEANORS BE CONDITIONALLY SEALED. THE COURT MAY ONLY SEAL
28 THE RECORDS OF THE DEFENDANT'S ARRESTS, PROSECUTIONS AND CONVICTIONS
29 WHEN:
30 (A) THE SENTENCING COURT HAS REQUESTED AND RECEIVED FROM THE DIVISION
31 OF CRIMINAL JUSTICE SERVICES OR THE FEDERAL BUREAU OF INVESTIGATION A
32 FINGERPRINT BASED CRIMINAL HISTORY RECORD OF THE DEFENDANT, INCLUDING
33 ANY SEALED OR SUPPRESSED INFORMATION. THE DIVISION OF CRIMINAL JUSTICE
34 SERVICES SHALL ALSO INCLUDE A CRIMINAL HISTORY REPORT, IF ANY, FROM THE
35 FEDERAL BUREAU OF INVESTIGATION REGARDING ANY CRIMINAL HISTORY INFORMA-
36 TION THAT OCCURRED IN OTHER JURISDICTIONS. THE DIVISION IS HEREBY
37 AUTHORIZED TO RECEIVE SUCH INFORMATION FROM THE FEDERAL BUREAU OF INVES-
38 TIGATION FOR THIS PURPOSE. THE PARTIES SHALL BE PERMITTED TO EXAMINE
39 THESE RECORDS;
40 (B) THE DEFENDANT OR COURT HAS IDENTIFIED THE MISDEMEANOR CONVICTION
41 OR CONVICTIONS FOR WHICH RELIEF MAY BE GRANTED;
42 (C) THE COURT HAS RECEIVED DOCUMENTATION THAT THE SENTENCES IMPOSED ON
43 THE ELIGIBLE MISDEMEANOR CONVICTIONS HAVE BEEN COMPLETED, OR IF NO SUCH
44 DOCUMENTATION IS REASONABLY AVAILABLE, A SWORN AFFIDAVIT THAT THE
45 SENTENCES IMPOSED ON THE PRIOR MISDEMEANORS HAVE BEEN COMPLETED; AND
46 (D) THE COURT HAS NOTIFIED THE DISTRICT ATTORNEY OF EACH JURISDICTION
47 IN WHICH THE DEFENDANT HAS BEEN CONVICTED OF AN OFFENSE WITH RESPECT TO
48 WHICH SEALING IS SOUGHT, AND THE COURT OR COURTS OF RECORD FOR SUCH
49 OFFENSES, THAT THE COURT IS CONSIDERING SEALING THE RECORDS OF THE
50 DEFENDANT'S ELIGIBLE MISDEMEANOR CONVICTIONS. BOTH THE DISTRICT ATTORNEY
51 AND THE COURT SHALL BE GIVEN A REASONABLE OPPORTUNITY, WHICH SHALL NOT
52 BE LESS THAN THIRTY DAYS, IN WHICH TO COMMENT AND SUBMIT MATERIALS TO
53 AID THE COURT IN MAKING SUCH A DETERMINATION. WHEN THE COURT NOTIFIES A
54 DISTRICT ATTORNEY OF A SEALING APPLICATION, THE DISTRICT ATTORNEY SHALL
55 PROVIDE NOTICE TO THE VICTIM, IF ANY, OF THE SEALING APPLICATION BY
56 MAILING WRITTEN NOTICE TO THE VICTIM'S LAST-KNOWN ADDRESS. FOR PURPOSES
S. 1708--B 3
1 OF THIS SECTION "VICTIM" MEANS ANY PERSON WHO HAS SUSTAINED PHYSICAL OR
2 FINANCIAL INJURY TO PERSON OR TO PROPERTY AS A DIRECT RESULT OF THE
3 MISDEMEANOR CRIME OR MISDEMEANOR CRIMES FOR WHICH SEALING IS APPLIED.
4 4. AT THE REQUEST OF THE DEFENDANT OR THE DISTRICT ATTORNEY OF A COUN-
5 TY IN WHICH THE DEFENDANT COMMITTED A CRIME THAT IS THE SUBJECT OF THE
6 SEALING APPLICATION, THE COURT MAY CONDUCT A HEARING TO CONSIDER AND
7 REVIEW ANY RELEVANT EVIDENCE OFFERED BY EITHER PARTY THAT WOULD AID THE
8 COURT IN ITS DECISION WHETHER TO SEAL THE RECORDS OF THE DEFENDANT'S
9 ARRESTS, PROSECUTIONS AND CONVICTIONS. IN MAKING SUCH A DETERMINATION,
10 THE COURT SHALL CONSIDER ANY RELEVANT FACTORS, INCLUDING BUT NOT LIMITED
11 TO:
12 (A) THE CIRCUMSTANCES AND SERIOUSNESS OF THE OFFENSE OR OFFENSES THAT
13 RESULTED IN THE CONVICTION OR CONVICTIONS;
14 (B) THE CHARACTER OF THE DEFENDANT, INCLUDING WHAT STEPS THE PETITION-
15 ER HAS TAKEN SINCE THE TIME OF THE OFFENSE TOWARD PERSONAL REHABILI-
16 TATION, INCLUDING TREATMENT, WORK, SCHOOL, OR OTHER PERSONAL HISTORY
17 THAT DEMONSTRATES REHABILITATION;
18 (C) THE DEFENDANT'S CRIMINAL HISTORY;
19 (D) THE IMPACT OF SEALING THE DEFENDANT'S RECORDS UPON HIS OR HER
20 REHABILITATION AND HIS OR HER SUCCESSFUL AND PRODUCTIVE REENTRY AND
21 REINTEGRATION INTO SOCIETY, AND ON PUBLIC SAFETY; AND
22 (E) ANY STATEMENTS MADE BY THE VICTIM OF THE OFFENSE WHERE THERE IS IN
23 FACT A VICTIM OF THE CRIME.
24 5. AFTER A COURT DECLARES ITS WILLINGNESS TO GRANT THE DEFENDANT'S
25 REQUEST FOR CONDITIONAL SEALING PURSUANT TO THIS SECTION, BUT BEFORE THE
26 COURT ORDERS SEALING PURSUANT TO THIS SECTION, THE DEFENDANT SHALL PAY A
27 MANDATORY CONDITIONAL SEALING FEE. THE MANDATORY CONDITIONAL SEALING FEE
28 WILL BE A FEE OF EIGHTY DOLLARS, HOWEVER, SUCH FILING FEE SHALL BE
29 WAIVED IN CASES OF INDIGENCE. THE MANDATORY FILING FEE SHALL BE PAID TO
30 THE CLERK OF THE COURT OR ADMINISTRATIVE TRIBUNAL THAT RENDERED THE
31 CONVICTION. WITHIN THE FIRST TEN DAYS OF THE MONTH FOLLOWING COLLECTION
32 OF THE MANDATORY FILING FEE, THE COLLECTING AUTHORITY IF IT IS AN ADMIN-
33 ISTRATIVE TRIBUNAL, OR A TOWN OR VILLAGE JUSTICE COURT, SHALL THEN PAY
34 SUCH MONEY TO THE STATE COMPTROLLER WHO SHALL DEPOSIT SUCH MONEY IN THE
35 STATE TREASURY PURSUANT TO SECTION ONE HUNDRED TWENTY-ONE OF THE STATE
36 FINANCE LAW TO THE CREDIT OF THE INDIGENT LEGAL SERVICES FUND. IF SUCH
37 COLLECTING AUTHORITY IS ANY OTHER COURT OF THE UNIFIED COURT SYSTEM, IT
38 SHALL, WITHIN SUCH PERIOD, PAY SUCH MONEY ATTRIBUTABLE TO THE MANDATORY
39 FILING FEE TO THE STATE COMMISSIONER OF TAXATION AND FINANCE TO THE
40 CREDIT OF THE INDIGENT LEGAL SERVICES FUND ESTABLISHED BY SECTION NINE-
41 TY-EIGHT-B OF THE STATE FINANCE LAW.
42 6. WHEN A COURT ORDERS SEALING PURSUANT TO THIS SECTION, ALL OFFICIAL
43 RECORDS AND PAPERS RELATING TO THE ARRESTS, PROSECUTIONS, AND
44 CONVICTIONS, INCLUDING ALL DUPLICATES AND COPIES THEREOF, ON FILE WITH
45 THE DIVISION OF CRIMINAL JUSTICE SERVICES OR ANY COURT SHALL BE SEALED
46 AND NOT MADE AVAILABLE TO ANY PERSON OR PUBLIC OR PRIVATE AGENCY;
47 PROVIDED, HOWEVER, THE DIVISION SHALL RETAIN ANY FINGERPRINTS, PALM-
48 PRINTS, PHOTOGRAPHS, OR DIGITAL IMAGES OF THE SAME.
49 7. WHEN THE COURT ORDERS SEALING PURSUANT TO THIS SECTION, THE CLERK
50 OF SUCH COURT SHALL IMMEDIATELY NOTIFY THE COMMISSIONER OF THE DIVISION
51 OF CRIMINAL JUSTICE SERVICES, AND ANY COURT THAT SENTENCED THE DEFENDANT
52 FOR AN OFFENSE WHICH HAS BEEN CONDITIONALLY SEALED, REGARDING THE
53 RECORDS THAT SHALL BE SEALED PURSUANT TO THIS SECTION.
54 8. RECORDS SEALED PURSUANT TO THIS SUBDIVISION SHALL BE MADE AVAILABLE
55 TO:
56 (A) THE DEFENDANT OR THE DEFENDANT'S DESIGNATED AGENT;
S. 1708--B 4
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;
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.
16 9. THE COURT SHALL NOT SEAL THE DEFENDANT'S RECORD PURSUANT TO THIS
17 SECTION WHILE ANY CHARGED OFFENSE IS PENDING.
18 10. IF, SUBSEQUENT TO THE SEALING OF RECORDS PURSUANT TO THIS SUBDIVI-
19 SION, THE PERSON WHO IS THE SUBJECT OF SUCH RECORDS IS ARRESTED FOR OR
20 FORMALLY CHARGED WITH ANY MISDEMEANOR OR FELONY OFFENSE, SUCH RECORDS
21 SHALL BE UNSEALED IMMEDIATELY AND REMAIN UNSEALED; PROVIDED, HOWEVER,
22 THAT IF SUCH NEW MISDEMEANOR OR FELONY ARREST RESULTS IN A TERMINATION
23 IN FAVOR OF THE ACCUSED AS DEFINED IN SUBDIVISION THREE OF SECTION
24 160.50 OF THIS ARTICLE OR BY CONVICTION FOR A NON-CRIMINAL OFFENSE AS
25 DESCRIBED IN SECTION 160.55 OF THIS ARTICLE, SUCH UNSEALED RECORDS SHALL
26 BE CONDITIONALLY SEALED PURSUANT TO THIS SECTION.
27 S 3. Subdivision 16 of section 296 of the executive law, as separately
28 amended by section 3 of part N and section 14 of part AAA of chapter 56
29 of the laws of 2009, is amended to read as follows:
30 16. It shall be an unlawful discriminatory practice, unless specif-
31 ically required or permitted by statute, for any person, agency, bureau,
32 corporation or association, including the state and any political subdi-
33 vision thereof, to make any inquiry about, whether in any form of appli-
34 cation or otherwise, or to act upon adversely to the individual
35 involved, any arrest or criminal accusation of such individual not then
36 pending against that individual which was followed by a termination of
37 that criminal action or proceeding in favor of such individual, as
38 defined in subdivision two of section 160.50 of the criminal procedure
39 law, or by a youthful offender adjudication, as defined in subdivision
40 one of section 720.35 of the criminal procedure law, or by a conviction
41 for a violation sealed pursuant to section 160.55 of the criminal proce-
42 dure law or by a conviction which is sealed pursuant to section 160.58
43 of the criminal procedure law, OR BY A CONVICTION WHICH IS SEALED PURSU-
44 ANT TO SECTION 160.65 OF THE CRIMINAL PROCEDURE LAW, in connection with
45 the licensing, employment or providing of credit or insurance to such
46 individual; provided, further, that no person shall be required to
47 divulge information pertaining to any arrest or criminal accusation of
48 such individual not then pending against that individual which was
49 followed by a termination of that criminal action or proceeding in favor
50 of such individual, as defined in subdivision two of section 160.50 of
51 the criminal procedure law, or by a youthful offender adjudication, as
52 defined in subdivision one of section 720.35 of the criminal procedure
53 law, or by a conviction for a violation sealed pursuant to section
54 160.55 of the criminal procedure law, or by a conviction which is sealed
55 pursuant to section 160.58 of the criminal procedure law, OR BY A
56 CONVICTION WHICH IS SEALED PURSUANT TO SECTION 160.65 OF THE CRIMINAL
S. 1708--B 5
1 PROCEDURE LAW. The provisions of this subdivision shall not apply to the
2 licensing activities of governmental bodies in relation to the regu-
3 lation of guns, firearms and other deadly weapons or in relation to an
4 application for employment as a police officer or peace officer as those
5 terms are defined in subdivisions thirty-three and thirty-four of
6 section 1.20 of the criminal procedure law; provided further that the
7 provisions of this subdivision shall not apply to an application for
8 employment or membership in any law enforcement agency with respect to
9 any arrest or criminal accusation which was followed by a youthful
10 offender adjudication, as defined in subdivision one of section 720.35
11 of the criminal procedure law, or by a conviction for a violation sealed
12 pursuant to section 160.55 of the criminal procedure law, or by a
13 conviction which is sealed pursuant to section 160.58 of the criminal
14 procedure law, OR BY A CONVICTION WHICH IS SEALED PURSUANT TO SECTION
15 160.65 OF THE CRIMINAL PROCEDURE LAW.
16 S 4. This act shall take effect on the one hundred eightieth day after
17 it shall have become a law and shall apply to all convictions occurring
18 prior to, on, and after such date.
