Bill Text: NY S01935 | 2023-2024 | General Assembly | Introduced
Bill Title: Provides for the confidentiality, sealing and expungement of juvenile delinquency records including providing notice to the respondent and attorney for the child when such acts of the court are ordered.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced) 2024-01-03 - REFERRED TO CHILDREN AND FAMILIES [S01935 Detail]
Download: New_York-2023-S01935-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 1935 2023-2024 Regular Sessions IN SENATE January 17, 2023 ___________ Introduced by Sen. BAILEY -- read twice and ordered printed, and when printed to be committed to the Committee on Children and Families AN ACT to amend the family court act, in relation to providing for the confidentiality, sealing, and expungement of juvenile delinquency records; and to repeal section 375.3 of the family court act relating thereto The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. The family court act is amended by adding a new section 2 301.5 to read as follows: 3 § 301.5. Juvenile delinquency records. 1. An officer of the court with 4 whom the proceedings pursuant to this article are filed, or his or her 5 clerk, either before or after the conclusion of said proceeding, shall 6 not permit a copy of any of the documents relating to such proceeding to 7 be taken or seen by any person other than the respondent, the attorney 8 for the child, an attorney employed by the presentment agency, or an 9 official employed by the probation service, except by order of the 10 court. 11 2. Notwithstanding the provisions of subdivision one of this section, 12 an officer of the court, or his or her clerk, shall not permit access of 13 any person to a record which has been sealed pursuant to section 375.1, 14 375.2, or 375.3. 15 § 2. Section 375.1 of the family court act, as added by chapter 920 of 16 the laws of 1982, subdivision 1 as amended by chapter 41 of the laws of 17 2010, paragraphs (d), (f) and (h) of subdivision 2 and subdivision 3 as 18 amended and paragraph (i) of subdivision 2 as added by chapter 398 of 19 the laws of 1983, is amended to read as follows: 20 § 375.1. Order upon termination of a delinquency action in favor of 21 the respondent. 1. Upon termination of a delinquency proceeding against 22 a respondent in favor of such respondent, pursuant to subdivision three 23 except paragraphs (g) and (h) of such subdivision, unless the present- 24 ment agency upon written motion with not less than eight days notice to 25 such respondent demonstrates to the satisfaction of the court that the 26 interests of justice require otherwise or the court on its own motion EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD05115-01-3S. 1935 2 1 with not less than eight days notice to such respondent determines that 2 the interest of justice require otherwise and states the reason for such 3 determination on the record, [the clerk of] the court shall [immediately4notify the counsel for the child, the director of the appropriate5presentment agency, and the heads of the appropriate probation depart-6ment and police department or other law enforcement agency, that the7proceeding has terminated in favor of the respondent and, unless the8court has directed otherwise, that the records of such action or9proceeding, other than those destroyed pursuant to section 354.1 [of10this act], shall be sealed. Upon receipt of such notification all offi- 11 cial records and papers, including judgments and orders of the court, 12 but not including public court decisions or opinions or records and 13 briefs on appeal, relating to the arrest, the prosecution and the 14 probation service proceedings, including all duplicates or copies there- 15 of, on file with the court, police agency, probation service and 16 presentment agency shall be sealed and not made available to any person 17 or public or private agency. Such records shall remain sealed during the 18 pendency of any motion made pursuant to this subdivision] enter an order 19 sealing the appropriate records. 20 2. Upon entry of an order pursuant to subdivision one or pursuant to 21 section 375.2 or 375.3 the clerk of court shall immediately seal the 22 relevant court records and shall immediately notify the director of the 23 appropriate presentment agency, and the heads of the appropriate 24 probation department, detention facility, police department or other law 25 enforcement agency that, unless the court has directed otherwise, the 26 records of such action or proceeding, other than those destroyed pursu- 27 ant to section 354.1, shall be sealed. 28 3. For the purposes of subdivision one, a delinquency proceeding shall 29 be considered terminated in favor of a respondent where: 30 (a) the petition is withdrawn; or 31 (b) the petition is dismissed under section 315.1 or 315.2 and the 32 presentment agency has not appealed from such order or the determination 33 of an appeal or appeals from such order has been against the presentment 34 agency; or 35 (c) the petition has been deemed to have been dismissed under section 36 315.3 and the presentment agency has not appealed from such order or the 37 determination of an appeal or appeals from such order has been against 38 the presentment agency; or 39 (d) the petition is dismissed without prejudice under subdivision four 40 of section 325.3 and the presentment agency has not appealed from such 41 order or the determination of an appeal or appeals from such order has 42 been against the presentment agency; or 43 (e) the entire petition has been dismissed under subdivision two of 44 section 345.1; or 45 (f) the petition is dismissed under subdivision two of section 352.1; 46 or 47 (g) prior to the filing of a petition, the probation department has 48 adjusted the case or terminated the case without adjustment; or 49 (h) prior to the filing of a petition the presentment agency chooses 50 not to proceed to petition; or 51 (i) the petition is dismissed pursuant to a motion made in accordance 52 with subdivision eight, nine or ten of section 332.1. 53 [3.] 4. Records sealed pursuant to subdivision one shall be made 54 available to the respondent or his designated agent and the records and 55 papers of a probation service shall be available to any probationS. 1935 3 1 service for the purpose of complying with subdivision four of section 2 308.1. 3 [4.] 5. If prior to the filing of a petition the presentment agency 4 elects not to commence a delinquency action it shall serve a certif- 5 ication of such disposition upon the appropriate probation service and 6 the appropriate police department or law enforcement agency, which, upon 7 receipt thereto, shall comply with the provision of subdivision one in 8 the same manner as is required with respect to an order of the court. 9 [5.] 6. If the probation service adjusts a delinquency case it shall 10 serve a certification of such disposition upon the appropriate police 11 department or law enforcement agency which, upon receipt thereof, shall 12 comply with the provisions of subdivision one in the same manner as is 13 required thereunder with respect to an order of a court. 14 [6.] 7. A respondent in whose favor a delinquency proceeding was 15 terminated prior to the effective date of this section may upon motion 16 apply to the court, upon not less than twenty days notice to the 17 presentment agency, for an order granting him the relief set forth in 18 subdivision one, and such order shall be granted unless the presentment 19 agency demonstrates to the satisfaction of the court that the interests 20 of justice require otherwise. A respondent in whose favor a delinquency 21 action or proceeding was terminated as defined by subdivisions [four22and] five and six, prior to the effective date of this section, may 23 apply to the appropriate presentment agency or probation service for a 24 certification as described in such subdivisions granting him the relief 25 set forth therein and such certification shall be granted by such 26 presentment agency or probation service. 27 § 3. Subdivisions 1, 5 and 6 of section 375.2 of the family court act, 28 subdivisions 1 and 5 as added by chapter 920 of the laws of 1982, and 29 subdivision 6 as amended by section 77 of part WWW of chapter 59 of the 30 laws of 2017, are amended to read as follows: 31 1. If an action has resulted in a finding of delinquency pursuant to 32 subdivision one of section 352.1, [other than a finding that the33respondent committed a designated felony act,] and the records have not 34 been sealed pursuant to section 375.1 or 375.3, the court may, in the 35 interest of justice and upon motion of the respondent, order the sealing 36 of appropriate records pursuant to subdivision one of section 375.1. 37 5. The court shall not order the sealing of any record except as 38 prescribed by this section or section 375.1 or 375.3. 39 6. [Such a motion cannot be filed until the respondent's sixteenth40birthday, or, commencing October first, two thousand eighteen, the41respondent's seventeenth birthday, or commencing October first, two42thousand nineteen, the respondent's eighteenth birthday] If the finding 43 relates to an act committed before the respondent attained age sixteen 44 such a motion cannot be filed until the respondent's sixteenth birthday. 45 If the finding related to an act committed subsequent to the respond- 46 ent's sixteenth birthday, such motion cannot be filed until the respond- 47 ent has attained age eighteen. 48 § 4. Section 375.3 of the family court act is REPEALED and a new 49 section 375.3 is added to read as follows: 50 § 375.3. Post-finding sealing. 1. If an action has resulted in a find- 51 ing of delinquency pursuant to subdivision one of section 352.1 and 52 every specific count of the petition upon which the fact-finding order 53 entered pursuant to section 345.1 constitutes a misdemeanor if committed 54 by an adult, and four years have elapsed since the finding was entered, 55 the court shall enter an order sealing the appropriate records pursuant 56 to subdivision one of section 375.1 and the clerk shall immediatelyS. 1935 4 1 transmit the notifications pursuant to subdivision two of section 375.1, 2 and section 375.4. 3 2. If after an action has resulted in a finding of delinquency pursu- 4 ant to subdivision one of section 352.1 and every specific count or 5 counts of the petition upon which the order entered pursuant to section 6 345.1 constitute a misdemeanor or a non-violent felony if committed by 7 an adult, and: (a) five years have elapsed since the finding was 8 entered; (b) the respondent has had no subsequent adjudication of juve- 9 nile delinquency or a criminal conviction; and (c) no juvenile delin- 10 quency or criminal proceeding is then pending, the court shall, upon 11 motion of the respondent, order the sealing of appropriate records 12 pursuant to subdivision one of section 375.1 and the clerk of court 13 shall immediately transmit the notifications pursuant to subdivision two 14 of section 375.1, and section 375.4. 15 § 5. The family court act is amended by adding a new section 375.4 to 16 read as follows: 17 § 375.4. Notice of sealing. Upon entering an order sealing appropriate 18 records pursuant to sections 375.1, 375.2 and 375.3 the clerk of court 19 shall serve the respondent and the attorney for the child with a copy of 20 such order by ordinary mail sent to the last known address of the 21 respondent and the attorney for the child. 22 § 6. The family court act is amended by adding a new section 375.5 to 23 read as follows: 24 § 375.5. Expungement. 1. The court shall order the expungement of 25 court records, and the records of the appropriate presentment agency and 26 probation department, when the entire petition has been dismissed under 27 subdivision two of section 345.1. 28 2. Upon expiration of one year after termination of a delinquency 29 proceeding in favor of a child under paragraph (g) or (h) of subdivision 30 three of section 375.1 the director of the appropriate presentment agen- 31 cy, and/or the head of the appropriate probation department, shall 32 destroy the agency's records of such proceeding when the highest charge 33 made by the police department is a class E felony or a misdemeanor, and 34 the child was less than thirteen years of age when the alleged act 35 occurred. As appropriate, the presentment agency shall serve a certif- 36 ication of disposition upon the appropriate probation service, which 37 shall destroy the probation service's records in the same manner 38 required with respect to an order for the court. 39 3. Upon the filing of a written motion by the respondent on notice to 40 the appropriate presentment agency, the court shall order the expunge- 41 ment of court records, and/or the records of the appropriate presentment 42 agency or probation department, when: 43 (a) the respondent has no juvenile delinquency or criminal history 44 aside from the proceeding in which the motion is made; 45 (b) the proceeding did not result in a felony finding; and 46 (c) respondent has reached the age of twenty-one. 47 4. In all other cases except those in which a designated felony find- 48 ing was made, the court, upon the filing of a written motion by the 49 respondent on notice to the appropriate presentment agency, has the 50 authority to order in its discretion and in the interests of justice, 51 the expungement of court records, and/or the records of the appropriate 52 presentment agency or probation department. 53 § 7. This act shall take effect on the ninetieth day after it shall 54 have become a law.