Bill Text: NY S03104 | 2023-2024 | General Assembly | Introduced
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Relates to the confidentiality and expungement of records in juvenile delinquency cases in the family court; requires certain records to be expunged automatically.
Spectrum: Partisan Bill (Democrat 10-0)
Status: (Introduced) 2024-05-07 - REPORTED AND COMMITTED TO JUDICIARY [S03104 Detail]
Download: New_York-2023-S03104-Introduced.html
Bill Title: Relates to the confidentiality and expungement of records in juvenile delinquency cases in the family court; requires certain records to be expunged automatically.
Spectrum: Partisan Bill (Democrat 10-0)
Status: (Introduced) 2024-05-07 - REPORTED AND COMMITTED TO JUDICIARY [S03104 Detail]
Download: New_York-2023-S03104-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 3104 2023-2024 Regular Sessions IN SENATE January 27, 2023 ___________ Introduced by Sen. BRISPORT -- 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 the confidentiality and expungement of records in juvenile delinquency cases in the family court 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. Confidentiality of juvenile delinquency records. 1. "Juvenile 4 delinquency record" refers to the records, reports and information main- 5 tained in any form, including electronic, by the family court, juvenile 6 probation, the presentment agency, state criminal justice information 7 systems, law enforcement agencies or any other public servant document- 8 ing the juvenile's contact with the juvenile justice system from the 9 time of investigation and arrest. 10 2. The following records, reports, and information acquired or gener- 11 ated in family court, juvenile probation or by arrests concerning juve- 12 niles shall be confidential and shall not be open to inspection nor 13 released to any person, department, agency, or entity: 14 (a) Juvenile legal files, including but not limited to: 15 (i) Juvenile delinquency petitions; 16 (ii) Adolescent offender petitions if the action is transferred or 17 removed to family court pursuant to article seven hundred twenty-two of 18 the criminal procedure law; 19 (iii) Juvenile offender petitions if the action is removed to family 20 court pursuant to article seven hundred twenty-five of the criminal 21 procedure law; 22 (iv) Predisposition reports, including probation investigations and 23 diagnostic assessments; 24 (v) Risk assessment instruments; EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD05815-01-3S. 3104 2 1 (vi) Notices; 2 (vii) Motions; 3 (viii) Legal memoranda; and 4 (ix) Orders. 5 (b) Law enforcement records, including but not limited to: 6 (i) Fingerprints, photographs, palmprints; 7 (ii) DNA samples; 8 (iii) Arrest records; 9 (iv) Demographic information that identifies a juvenile or the family 10 of a juvenile; and 11 (v) State criminal justice information system records. 12 (c) Personal social records, including but not limited to: 13 (i) Records of juvenile probation officers; 14 (ii) Medical records; 15 (iii) Psychiatric or psychological records; 16 (iv) Reports of preliminary inquiries and predisposition reports; 17 (v) Supervision records; 18 (vi) Birth certificates; 19 (vii) Individualized service plans; 20 (viii) Detention records; and 21 (ix) Demographic information that identifies a juvenile or the family 22 of a juvenile. 23 3. Upon a written petition and a finding of compelling interest, and 24 in accordance with the conditions below, the juvenile court may order 25 release of the juvenile name and designated portions of the records, 26 reports, and information described in paragraphs (a) through (c) of 27 subdivision two of this section to another person, department, entity, 28 or agency. 29 (a) The requesting party shall provide notice to the juvenile and his 30 or her attorney of the petition and an opportunity to object. 31 (b) The court shall hold a hearing on the petition if requested by the 32 petitioner or juvenile. 33 (c) The petition filed with the court and served on the juvenile and 34 his or her attorney shall state the following: 35 (i) The reason the person, department, entity, or agency is requesting 36 the information; 37 (ii) The use to be made of the information, including any intended 38 re-disclosure; and 39 (iii) The names of those persons within the department, entity, or 40 agency who will have access to the information. 41 (d) In ruling on the petition, the court shall consider the privacy 42 interests of the juvenile and potential risk of harm to the juvenile, 43 whether a compelling reason exists for release of the information, and 44 whether the release is necessary for the protection of an important 45 interest. 46 (e) The court may impose restrictions on the use and re-disclosure of 47 the released information. 48 4. An officer of the court with whom the proceedings pursuant to this 49 article are filed, or his or her clerk, either before or after the 50 conclusion of such proceedings, shall not permit a copy of any of the 51 documents relating to such proceedings to be taken or seen by any person 52 other than the respondent, the attorney for the child, an attorney 53 employed by the presentment agency, or an official employed by the 54 probation service, except by order of the court. 55 5. Notwithstanding the provisions of subdivision three of this 56 section, an officer of the court, or his or her clerk, shall not permitS. 3104 3 1 access of any person to a record which has been expunged pursuant to 2 section 375.1 or section 375.2 of this article. 3 6. A violation of this section shall create a cause of action for 4 civil damages of up to one thousand dollars. 5 § 2. The section heading and subdivisions 1 and 2 of section 354.1 of 6 the family court act, the section heading as added by chapter 920 of the 7 laws of 1982 and subdivisions 1 and 2 as amended by chapter 810 of the 8 laws of 2021, are amended and two new subdivisions 8 and 9 are added to 9 read as follows: 10 Retention and destruction of fingerprints; DNA and other genetic mate- 11 rial of persons alleged to be juvenile delinquents. 12 1. If a person whose fingerprints, palmprints or photographs were 13 taken pursuant to section 306.1 of this article or who was initially 14 fingerprinted as a juvenile or adolescent offender and the action is 15 subsequently removed to a family court pursuant to article seven hundred 16 twenty-five or article seven hundred twenty-two of the criminal proce- 17 dure law is adjudicated to be a juvenile delinquent for a felony, the 18 family court shall forward or cause to be forwarded to the division of 19 criminal justice services notification of such adjudication and such 20 related information as may be required by such division, provided, 21 however, in the case of a person twelve years of age such notification 22 shall be provided only if the act upon which the adjudication is based 23 would constitute a class A or B felony. 24 2. If a person whose fingerprints, palmprints or photographs were 25 taken pursuant to section 306.1 of this article or who was initially 26 fingerprinted as a juvenile or adolescent offender and the action is 27 subsequently removed to family court pursuant to article seven hundred 28 twenty-five or article seven hundred twenty-two of the criminal proce- 29 dure law has had all petitions disposed of by the family court in any 30 manner other than an adjudication of juvenile delinquency for a felony, 31 but in the case of acts committed when such person was twelve years of 32 age [which would constitute] other than an adjudication of juvenile 33 delinquency for a class A or B felony [only], all such fingerprints, 34 palmprints, photographs, and copies thereof, and all information relat- 35 ing to such allegations obtained by the division of criminal justice 36 services pursuant to section 306.1 of this article shall be destroyed 37 forthwith. The clerk of the court shall notify the commissioner of the 38 division of criminal justice services and the heads of all police 39 departments and law enforcement agencies having copies of such records, 40 who shall destroy such records without unnecessary delay. 41 8. When a person whose fingerprints, palmprints or photographs were 42 taken pursuant to section 306.1 of this article and who is subsequently 43 adjudicated a juvenile delinquent for a felony, but in the case of acts 44 committed when such person was twelve years of age other than an adjudi- 45 cation of juvenile delinquency for a class A or B felony, and the case 46 is expunged pursuant to section 375.1 or section 375.2 of this article, 47 all fingerprints, palmprints, photographs, and related information and 48 copies thereof obtained pursuant to section 306.1 of this article in the 49 possession of the division of criminal justice services, any police 50 department, law enforcement agency or any other agency shall be 51 destroyed forthwith. The division of criminal justice services shall 52 notify the agency or agencies which forwarded fingerprints to such divi- 53 sion pursuant to section 306.1 of this article of their obligation to 54 destroy those records in their possession. 55 9. If any DNA or other genetic material was obtained from a juvenile 56 by any law enforcement officer or other public servant acting in theS. 3104 4 1 course of his or her official duties or by a state or local government 2 entity, other than DNA or other genetic material obtained in connection 3 with a parentage or related proceeding or a juvenile offender or adoles- 4 cent offender proceeding not removed to the family court, such material 5 and any analyses or reports regarding such material, as well as any 6 record included in any DNA identification index maintained by any 7 government entity, shall be expunged forthwith. Any DNA or other genetic 8 material obtained in connection with a parentage proceeding related 9 thereto or any juvenile offender or adolescent offender proceeding may 10 be used only in connection with such proceeding and may not be disclosed 11 to or utilized by any law enforcement agency or admitted into evidence 12 in any proceeding under this article. 13 § 3. Section 375.1 of the family court act, as added by chapter 920 14 of the laws of 1982, subdivision 1 as amended by chapter 41 of the laws 15 of 2010, paragraphs (d), (f) and (h) of subdivision 2 and subdivision 3 16 as amended and paragraph (i) of subdivision 2 as added by chapter 398 of 17 the laws of 1983, is amended to read as follows: 18 § 375.1. Order upon termination of a delinquency action in favor of 19 the respondent. 1. Upon termination of a delinquency proceeding against 20 a respondent in favor of such respondent, unless the presentment agency 21 upon written motion with not less than eight days notice to such 22 respondent demonstrates to the satisfaction of the court that the inter- 23 ests of justice require otherwise or the court on its own motion with 24 not less than eight days notice to such respondent determines that the 25 interest of justice require otherwise and states the reason for such 26 determination on the record, the clerk of the court shall immediately 27 notify the counsel for the child, the director of the appropriate 28 presentment agency, and the heads of the appropriate probation depart- 29 ment and police department or other law enforcement agency, that the 30 proceeding has terminated in favor of the respondent and, unless the 31 court has directed otherwise, that the records of such action or 32 proceeding, other than those destroyed pursuant to section 354.1 of this 33 act, shall be [sealed] expunged. Upon receipt of such notification all 34 official records and papers, including judgments and orders of the 35 court, but not including public court decisions or opinions or records 36 and briefs on appeal, relating to the arrest, the prosecution and the 37 probation service proceedings, including all duplicates or copies there- 38 of, on file with the court, police agency, probation service and 39 presentment agency shall be [sealed] expunged, and not made available to 40 any person or public or private agency; provided, however, that the 41 probation service may retain a copy of the record under seal solely in 42 order to comply with subdivision four of section 308.1 of this article 43 until the respondent's eighteenth birthday or the conclusion of their 44 probation supervision, at which time all records shall be expunged. 45 Such records shall remain sealed during the pendency of any motion made 46 pursuant to this subdivision. 47 2. The effect of having a record expunged, whether pursuant to subdi- 48 vision one of this section or pursuant to section 375.2 of this part, 49 shall be that all juvenile records shall be destroyed and thereafter no 50 person or agency shall be allowed to release any information concerning 51 such record, except as provided by this section. The court, juvenile 52 probation office, law enforcement offices, presentment agency and any 53 other relevant agency shall reply to an inquiry that no juvenile record 54 exists with respect to the person whose record was expunged. 55 3. With respect to the matter in which the record was expunged and any 56 preceding action resulting from the same alleged conduct, the person whoS. 3104 5 1 is the subject of the record and the person's parent shall not be held 2 thereafter under any provision of law to be guilty of perjury or other- 3 wise giving a false statement by reason of the person's failure to 4 recite or acknowledge such record. 5 4. For the purposes of subdivision one of this section, a delinquency 6 proceeding shall be considered terminated in favor of a respondent 7 where: 8 (a) the petition is withdrawn; or 9 (b) the petition is dismissed under section 315.1 or 315.2 of this 10 article and the presentment agency has not appealed from such order or 11 the determination of an appeal or appeals from such order has been 12 against the presentment agency; or 13 (c) the petition has been deemed to have been dismissed under section 14 315.3 and the presentment agency has not appealed from such order or the 15 determination of an appeal or appeals from such order has been against 16 the presentment agency; provided, however, that an agreement to prevent 17 expungement under this section may not be required as a condition of an 18 adjournment in contemplation of dismissal under section 315.3 of this 19 article; or 20 (d) the petition is dismissed without prejudice under subdivision four 21 of section 325.3 of this article and the presentment agency has not 22 appealed from such order or the determination of an appeal or appeals 23 from such order has been against the presentment agency; or 24 (e) the entire petition has been dismissed under subdivision two of 25 section 345.1 of this article; or 26 (f) the petition is dismissed under subdivision two of section 352.1 27 of this part; or 28 (g) prior to the filing of a petition, the probation department has 29 adjusted the case or terminated the case without adjustment; or 30 (h) prior to the filing of a petition the presentment agency chooses 31 not to proceed to petition; or 32 (i) the petition is dismissed pursuant to a motion made in accordance 33 with subdivision eight, nine or ten of section 332.1 of this article; or 34 (j) following an arrest, the arresting police agency, prior to the 35 filing of an accusatory instrument in court, elects not to proceed 36 further; or 37 (k) the respondent was adjudicated for an act that if committed by an 38 adult would constitute a crime under former sections 221.15, 221.20, 39 221.35, 221.40 or 240.37 or section 240.36 of the penal law; or 40 (l) the respondent was adjudicated for an act that was committed when 41 the respondent was under the age of twelve, other than the acts enumer- 42 ated in subparagraph (iii) of paragraph (a) of subdivision one of 43 section 301.2 of this article. 44 5. When a person was previously adjudicated delinquent as described in 45 paragraph (k) or (l) of subdivision four of this section, the chief 46 administrative judge of the state of New York shall, in accordance with 47 this section, automatically vacate, dismiss, and expunge such adjudi- 48 cation, and the office of court administration shall immediately notify 49 the state division of criminal justice services, directing that such 50 agency notify all relevant police and law enforcement agencies of their 51 duty to destroy all records related to such case. 52 [3.] 6. Records sealed pursuant to subdivision one shall be made 53 available to the respondent or his designated agent and the records and 54 papers of a probation service shall be available to any probation 55 service for the purpose of complying with subdivision four of section 56 308.1 of this article.S. 3104 6 1 [4.] 7. If prior to the filing of a petition the presentment agency 2 elects not to commence a delinquency action it shall serve a certif- 3 ication of such disposition upon the appropriate probation service and 4 the appropriate police department or law enforcement agency, which, upon 5 receipt [thereto] thereof, shall comply with the provision of subdivi- 6 sion one of this section in the same manner as is required with respect 7 to an order of the court. 8 [5.] 8. If the probation service adjusts a delinquency case it shall 9 serve a certification of such disposition upon the appropriate police 10 department or law enforcement agency which, upon receipt thereof, shall 11 comply with the provisions of subdivision one of this section in the 12 same manner as is required thereunder with respect to an order of a 13 court. 14 [6.] 9. 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 four and 22 five, prior to the effective date of this section, may apply to the 23 appropriate presentment agency or probation service for a certification 24 as described in such subdivisions granting him the relief set forth 25 therein and such certification shall be granted by such presentment 26 agency or probation service. 27 10. The chief administrative judge of the state of New York shall, in 28 accordance with this section, automatically expunge the juvenile record 29 of a respondent in whose favor a delinquency proceeding was terminated 30 prior to the effective date of this subdivision, and the office of court 31 administration shall immediately notify the state division of criminal 32 justice services, directing that such agency notify all relevant police 33 and law enforcement agencies of their duty to destroy all records 34 related to such case. 35 § 4. Section 375.2 of the family court act, as added by chapter 920 of 36 the laws of 1982, subdivision 6 as amended by section 77 of part WWW of 37 chapter 59 of the laws of 2017, and subdivision 7 as added by chapter 38 813 of the laws of 2021, is amended to read as follows: 39 § 375.2. Motion to [seal] expunge and automatic expungement after a 40 finding. 1. If an action has resulted in a finding of delinquency pursu- 41 ant to subdivision one of section 352.1 of this article, [other than a42finding that the respondent committed a designated felony act,] the 43 court may, in the interest of justice and upon motion of the respondent, 44 order the [sealing] expungement of appropriate records pursuant to 45 subdivision one of section 375.1 of this part. 46 2. Such motion must be in writing and may be filed at any time subse- 47 quent to the [entering of such finding] conclusion of the period of any 48 disposition, including, but not limited to, the expiration of the period 49 of placement, conditional discharge, order of protection, order of 50 restitution, order of probation or any extension thereof. Notice of such 51 motion shall be served upon the presentment agency not less than eight 52 days prior to the return date of the motion. Answering affidavits shall 53 be served at least two days before such time. The court shall rule on 54 the expungement after considering the following: 55 (a) the best interests of the person;S. 3104 7 1 (b) the age of the person during his or her contact with the family 2 court or law enforcement agency; 3 (c) the nature of the offense; 4 (d) the disposition of the case; 5 (e) the manner in which the person participated in any court ordered 6 rehabilitative programming or supervised services; 7 (f) the time during which the person has been without contact with the 8 juvenile court; 9 (g) whether the person has any subsequent criminal convictions; and 10 (h) the adverse consequences the person will suffer as a result of 11 retention of his or her record. 12 3. The court shall state on the record its reasons for granting or 13 denying the motion. 14 4. [If such motion is denied, it may not be renewed for a period of15one year, unless the order of denial permits renewal at an earlier time.165.] The court shall not order the [sealing] expungement of any record 17 except as prescribed by this section or section 375.1 of this part. 18 [6. Such a motion cannot be filed until the respondent's sixteenth19birthday, or, commencing October first, two thousand eighteen, the20respondent's seventeenth birthday, or commencing October first, two21thousand nineteen, the respondent's eighteenth birthday.227.] 5. Where an order of fact-finding has been issued pursuant to 23 subdivision one of section 345.1 of this article that includes solely a 24 violation as defined in subdivision three of section 10.00 of the penal 25 law committed by a juvenile sixteen years of age or, commencing on Octo- 26 ber first, two thousand nineteen, seventeen years of age, the records 27 shall be [sealed] expunged automatically at the expiration, as applica- 28 ble, of a successful period of an adjustment, adjournment in contem- 29 plation of dismissal or conditional discharge. 30 6. If an action has resulted in a finding of delinquency pursuant to 31 subdivision one of section 352.1 of this article, all records of such 32 action or proceeding not already expunged shall be automatically 33 expunged by the court upon the attainment of the respondent's twenty- 34 first birthday. 35 7. If expungement is obtained automatically or by motion, the court 36 shall order all agencies named in the juvenile court and probation 37 files, including each law enforcement agency, other state agencies which 38 may have records of the juvenile's adjudication, detention and treatment 39 facilities, to send that person's juvenile record to the court. The 40 court shall then destroy the paper and electronic records and mail an 41 affidavit of expungement to the agency. Each agency shall affirm in an 42 affidavit of expungement to the court that it destroyed all paper and 43 electronic copies of the expunged records. 44 8. An agreement by the respondent to prevent expungement under this 45 section may not be a condition for the respondent to enter an admission 46 to a reduced charge pursuant to section 321.3 of this article. 47 § 5. Section 381.2 of the family court act, as added by chapter 920 of 48 the laws of 1982, subdivision 2 as amended by chapter 926 of the laws of 49 1982, is amended to read as follows: 50 § 381.2. Use of records in other courts. 1. Neither the fact that a 51 person was before the family court under this article for a hearing nor 52 any confession, admission or statement made by him or her to the court 53 or to any officer thereof in any stage of the proceeding is admissible 54 as evidence against him or her or his or her interests, in any other 55 court.S. 3104 8 1 2. Notwithstanding the provisions of subdivision one of this section, 2 another court, in imposing sentence upon an adult after conviction may 3 receive and consider the records and information on file with the family 4 court, unless such records and information have been [sealed] expunged 5 pursuant to section 375.1 or section 375.2 of this article. 6 § 6. Section 381.3 of the family court act, as added by chapter 920 of 7 the laws of 1982, paragraph (b) of subdivision 2 as amended by chapter 8 926 of the laws of 1982, is amended to read as follows: 9 § 381.3. Use of [police] law enforcement records. 1. All [police] law 10 enforcement records relating to the arrest, detention, apprehension, and 11 disposition of any person under this article shall be kept in files 12 separate and apart from the arrests of adults and shall be withheld from 13 public inspection. 14 2. All law enforcement records relating to the arrest, detention, 15 apprehension, and disposition of any juveniles shall be destroyed forth- 16 with upon the occurrence of one of the following: 17 (a) After the arrest of such person, the arresting law enforcement 18 agency, prior to the filing of an accusatory instrument in court, elects 19 not to proceed further; 20 (b) Prior to the filing of a petition, the presentment agency elects 21 not to commence a delinquency action; 22 (c) Prior to the filing of a petition, the probation department has 23 adjusted the case or terminated the case without adjustment; 24 (d) Termination of the delinquency action in favor of a respondent 25 pursuant to section 375.1 of this article; or 26 (e) Following a finding of delinquency, sealing or expungement is 27 ordered pursuant to section 375.1 or 375.2 of this article. 28 3. Law enforcement or other public officials may not access or 29 disclose confidential juvenile records without a court order following 30 notice and a hearing pursuant to subdivision four of section 306.1 of 31 this article. 32 4. Notwithstanding the provisions of subdivision [one] three of this 33 section, the family court in the county in which the petition was adju- 34 dicated may, upon motion and for good cause shown, order such records 35 open: 36 (a) to the respondent or his or her parent or person responsible for 37 his or her care; or 38 (b) if the respondent is subsequently convicted of a crime, to a judge 39 of the court in which he was convicted, unless such record has been 40 [sealed] expunged pursuant to section 375.1 or section 375.2 of this 41 article. 42 [3.] 5. An order issued under subdivision [two] four of this section 43 must be in writing. 44 6. For the purposes of this section, "records" shall include law 45 enforcement files, reports, exhibits or other material which contains 46 information relating to contact with any law enforcement agency and also 47 includes electronic information recorded and stored stemming from an 48 arrest or subsequent interrogations and interviews, and shall also apply 49 to any information that is kept manually, through the use of electronic 50 data processing equipment, through electronic recording or by any other 51 means by a law enforcement agency of the state of New York. 52 7. Violation of this section shall create a cause of action for civil 53 damages up to one thousand dollars. 54 § 7. This act shall take effect on the ninetieth day after it shall 55 have become a law.
