Bill Text: NY S02191 | 2019-2020 | General Assembly | Introduced


Bill Title: Permits the sealing of records of certain nonviolent misdemeanor or non-sexual misdemeanor criminal offenses; defines the term "eligible misdemeanor"; excludes certain misdemeanor offenses as eligible misdemeanors for the purposes of conditional sealing; lists certain eligibility requirements for sealing; provides an order granting sealing under this section shall restore the individual concerned, in the contemplation of the laws, to the status such individual occupied before the arrest or institution of criminal proceedings for the crime that was the subject of the sealing.

Spectrum: Partisan Bill (Democrat 5-0)

Status: (Introduced) 2019-01-23 - REFERRED TO CODES [S02191 Detail]

Download: New_York-2019-S02191-Introduced.html


                STATE OF NEW YORK
        ________________________________________________________________________
                                          2191
                               2019-2020 Regular Sessions
                    IN SENATE
                                    January 23, 2019
                                       ___________
        Introduced by Sens. BAILEY, KRUEGER, MONTGOMERY, PARKER, SANDERS -- read
          twice  and  ordered  printed,  and when printed to be committed to the
          Committee on Codes
        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    § 2. The criminal procedure law is amended by  adding  a  new  section
     4  160.65 to read as follows:
     5  § 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 include any sex offense as defined
     9  under subdivision two  of  section  one  hundred  sixty-eight-a  of  the
    10  correction law.
    11    2.  A  person having a conviction for no more than three misdemeanors,
    12  who does not stand convicted of any felony, or who is  not  required  to
    13  maintain  registration  under  article  six-C of the correction law, may
    14  petition the court to conditionally seal up to three eligible  misdemea-
    15  nors when:
    16    (a) at least five years have passed since the completion of a sentence
    17  on an eligible misdemeanor; and
    18    (b) such person has not been convicted of a crime during the last five
    19  years and is not the subject of an undisposed arrest.
    20    3. The petition authorized by this section shall be filed in the court
    21  of  record  that last imposed a sentence upon petitioner for an eligible
    22  misdemeanor. On the defendant's motion, the court  may  order  that  all
    23  official  records  and  papers  relating  to the arrest, prosecution and
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD05449-01-9

        S. 2191                             2
     1  conviction records for no more  than  three  of  the  defendant's  prior
     2  eligible  misdemeanors be conditionally sealed.  The court may only seal
     3  the records of the defendant's  arrests,  prosecutions  and  convictions
     4  when:
     5    (a)  the sentencing court has requested and received from the division
     6  of criminal justice services or the federal bureau  of  investigation  a
     7  fingerprint  based  criminal  history record of the defendant, including
     8  any sealed or suppressed information. The division of  criminal  justice
     9  services  shall also include a criminal history report, if any, from the
    10  federal bureau of investigation regarding any criminal history  informa-
    11  tion  that  occurred  in  other  jurisdictions.  The  division is hereby
    12  authorized to receive such information from the federal bureau of inves-
    13  tigation for this purpose. The parties shall  be  permitted  to  examine
    14  these records;
    15    (b)  the  defendant or court has identified the misdemeanor conviction
    16  or convictions for which relief may be granted;
    17    (c) the court has received documentation that the sentences imposed on
    18  the eligible misdemeanor convictions have been completed, or if no  such
    19  documentation  is  reasonably  available,  a  sworn  affidavit  that the
    20  sentences imposed on the prior misdemeanors have been completed; and
    21    (d) the court has notified the district attorney of each  jurisdiction
    22  in  which the defendant has been convicted of an offense with respect to
    23  which sealing is sought, and the court or  courts  of  record  for  such
    24  offenses,  that  the  court  is  considering  sealing the records of the
    25  defendant's eligible misdemeanor convictions. Both the district attorney
    26  and the court shall be given a reasonable opportunity, which  shall  not
    27  be  less  than  thirty days, in which to comment and submit materials to
    28  aid the court in making such a determination. When the court notifies  a
    29  district  attorney of a sealing application, the district attorney shall
    30  provide notice to the victim, if any,  of  the  sealing  application  by
    31  mailing  written notice to the victim's last-known address. For purposes
    32  of this section "victim" means any person who has sustained physical  or
    33  financial  injury  to  person  or  to property as a direct result of the
    34  misdemeanor crime or misdemeanor crimes for which sealing is applied.
    35    4. At the request of the defendant or the district attorney of a coun-
    36  ty in which the defendant committed a crime that is the subject  of  the
    37  sealing  application,  the  court  may conduct a hearing to consider and
    38  review any relevant evidence offered by either party that would aid  the
    39  court  in  its  decision  whether to seal the records of the defendant's
    40  arrests, prosecutions and convictions.  In making such a  determination,
    41  the court shall consider any relevant factors, including but not limited
    42  to:
    43    (a)  the circumstances and seriousness of the offense or offenses that
    44  resulted in the conviction or convictions;
    45    (b) the character of the defendant, including what steps the petition-
    46  er has taken since the time of the  offense  toward  personal  rehabili-
    47  tation,  including  treatment,  work,  school, or other personal history
    48  that demonstrates rehabilitation;
    49    (c) the defendant's criminal history;
    50    (d) the impact of sealing the defendant's  records  upon  his  or  her
    51  rehabilitation  and  his  or  her  successful and productive reentry and
    52  reintegration into society, and on public safety; and
    53    (e) any statements made by the victim of the offense where there is in
    54  fact a victim of the crime.
    55    5. After a court declares its willingness  to  grant  the  defendant's
    56  request for conditional sealing pursuant to this section, but before the

        S. 2191                             3
     1  court orders sealing pursuant to this section, the defendant shall pay a
     2  mandatory conditional sealing fee. The mandatory conditional sealing fee
     3  will  be  a  fee  of  eighty  dollars, however, such filing fee shall be
     4  waived  in cases of indigence. The mandatory filing fee shall be paid to
     5  the clerk of the court or  administrative  tribunal  that  rendered  the
     6  conviction.  Within the first ten days of the month following collection
     7  of the mandatory filing fee, the collecting authority if it is an admin-
     8  istrative tribunal, or a town or village justice court, shall  then  pay
     9  such  money to the state comptroller who shall deposit such money in the
    10  state treasury pursuant to section one hundred twenty-one of  the  state
    11  finance  law  to the credit of the indigent legal services fund. If such
    12  collecting authority is any other court of the unified court system,  it
    13  shall,  within such period, pay such money attributable to the mandatory
    14  filing fee to the state commissioner of  taxation  and  finance  to  the
    15  credit  of the indigent legal services fund established by section nine-
    16  ty-eight-b of the state finance law.
    17    6. When a court orders sealing pursuant to this section, all  official
    18  records   and   papers   relating  to  the  arrests,  prosecutions,  and
    19  convictions, including all duplicates and copies thereof, on  file  with
    20  the  division  of criminal justice services or any court shall be sealed
    21  and not made available to  any  person  or  public  or  private  agency;
    22  provided,  however,  the  division  shall retain any fingerprints, palm-
    23  prints, photographs, or digital images of the same.
    24    7. When the court orders sealing pursuant to this section,  the  clerk
    25  of  such court shall immediately notify the commissioner of the division
    26  of criminal justice services, and any court that sentenced the defendant
    27  for an offense  which  has  been  conditionally  sealed,  regarding  the
    28  records that shall be sealed pursuant to this section.
    29    8. Records sealed pursuant to this subdivision shall be made available
    30  to:
    31    (a) the defendant or the defendant's designated agent;
    32    (b)  qualified  agencies,  as  defined  in subdivision nine of section
    33  eight hundred thirty-five of the executive law, and  federal  and  state
    34  law  enforcement  agencies,  when  acting  within the scope of their law
    35  enforcement duties;
    36    (c) any state or local officer or agency with responsibility  for  the
    37  issuance  of licenses to possess guns, when the person has made applica-
    38  tion for such a license; or
    39    (d) any prospective employer of a police officer or peace  officer  as
    40  those  terms are defined in subdivisions thirty-three and thirty-four of
    41  section 1.20 of this chapter, in relation to an application for  employ-
    42  ment as a police officer or peace officer; provided, however, that every
    43  person  who  is an applicant for the position of police officer or peace
    44  officer shall be furnished with a copy of  all  records  obtained  under
    45  this paragraph and afforded an opportunity to make an explanation there-
    46  to.
    47    9.  The  court  shall not seal the defendant's record pursuant to this
    48  section while any charged offense is pending.
    49    10. If, subsequent to the sealing of records pursuant to this subdivi-
    50  sion, the person who is the subject of such records is arrested  for  or
    51  formally  charged  with  any misdemeanor or felony offense, such records
    52  shall be unsealed immediately and remain  unsealed;  provided,  however,
    53  that  if  such new misdemeanor or felony arrest results in a termination
    54  in favor of the accused as  defined  in  subdivision  three  of  section
    55  160.50  of  this  article or by conviction for a non-criminal offense as

        S. 2191                             4
     1  described in section 160.55 of this article, such unsealed records shall
     2  be conditionally sealed pursuant to this section.
     3    11.  No  defendant shall be required or permitted to waive eligibility
     4  for conditional sealing pursuant to this section as part of  a  plea  of
     5  guilty,  sentence or any agreement related to a conviction for an eligi-
     6  ble offense and any such waiver shall be deemed void  and  wholly  unen-
     7  forceable.
     8    § 3. Subdivision 16 of section 296 of the executive law, as amended by
     9  section  48-a  of part WWW of chapter 59 of the laws of 2017, is amended
    10  to read as follows:
    11    16. It shall be an unlawful discriminatory  practice,  unless  specif-
    12  ically required or permitted by statute, for any person, agency, bureau,
    13  corporation or association, including the state and any political subdi-
    14  vision thereof, to make any inquiry about, whether in any form of appli-
    15  cation  or  otherwise,  or  to  act  upon  adversely  to  the individual
    16  involved, any arrest or criminal accusation of such individual not  then
    17  pending  against  that individual which was followed by a termination of
    18  that criminal action or proceeding  in  favor  of  such  individual,  as
    19  defined  in  subdivision two of section 160.50 of the criminal procedure
    20  law, or by a youthful offender adjudication, as defined  in  subdivision
    21  one  of section 720.35 of the criminal procedure law, or by a conviction
    22  for a violation sealed pursuant to section 160.55 of the criminal proce-
    23  dure law or by a conviction which is sealed pursuant to  section  160.59
    24  or  160.58  of  the  criminal procedure law, or by a conviction which is
    25  sealed pursuant to section 160.65 of  the  criminal  procedure  law,  in
    26  connection  with  the  licensing,  employment  or providing of credit or
    27  insurance to such individual; provided, further, that no person shall be
    28  required to divulge information pertaining to  any  arrest  or  criminal
    29  accusation  of  such individual not then pending against that individual
    30  which was followed by a termination of that criminal action or  proceed-
    31  ing  in  favor  of  such  individual,  as  defined in subdivision two of
    32  section 160.50 of the criminal procedure law, or by a youthful  offender
    33  adjudication,  as  defined  in  subdivision one of section 720.35 of the
    34  criminal procedure law, or by a conviction for a violation sealed pursu-
    35  ant to section 160.55 of the criminal procedure law, or by a  conviction
    36  which  is  sealed  pursuant  to section 160.58 or 160.59 of the criminal
    37  procedure law, or by a conviction which is sealed  pursuant  to  section
    38  160.65  of  the criminal procedure law.  The provisions of this subdivi-
    39  sion shall not apply to the licensing activities of governmental  bodies
    40  in relation to the regulation of guns, firearms and other deadly weapons
    41  or  in  relation to an application for employment as a police officer or
    42  peace officer as those terms are defined  in  subdivisions  thirty-three
    43  and  thirty-four of section 1.20 of the criminal procedure law; provided
    44  further that the provisions of this subdivision shall not  apply  to  an
    45  application  for  employment or membership in any law enforcement agency
    46  with respect to any arrest or criminal accusation which was followed  by
    47  a  youthful  offender  adjudication,  as  defined  in subdivision one of
    48  section 720.35 of the criminal procedure law, or by a conviction  for  a
    49  violation  sealed  pursuant  to section 160.55 of the criminal procedure
    50  law, or by a conviction which is sealed pursuant to  section  160.58  or
    51  160.59 of the criminal procedure law, or by a conviction which is sealed
    52  pursuant to section 160.65 of the criminal procedure law.
    53    § 4. This act shall take effect on the one hundred eightieth day after
    54  it  shall have become a law and shall apply to all convictions occurring
    55  prior to, on, and after such date.
feedback