Bill Text: NY S06561 | 2019-2020 | General Assembly | Introduced

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Bill Title: Provides that certain applicants be eligible for conviction sealing.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2020-01-08 - REFERRED TO CODES [S06561 Detail]

Download: New_York-2019-S06561-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                          6561

                               2019-2020 Regular Sessions

                    IN SENATE

                                      June 16, 2019
                                       ___________

        Introduced  by  Sen.  MYRIE  -- 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  eligibility
          for conviction sealing for certain applicants

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

     1    Section 1. Section 160.59 of the criminal procedure law, as  added  by
     2  section  48  of part WWW of chapter 59 of the laws of 2017 and paragraph
     3  (a) of subdivision 2 and subdivision 11 as amended by chapter 60 of  the
     4  laws of 2017, is amended to read as follows:
     5  § 160.59 Sealing of certain convictions.
     6    1.  Definitions:  As  used  in this section, the following terms shall
     7  have the following meanings:
     8    (a) "Eligible offense" shall mean a violation of  subdivision  one  of
     9  section  eleven  hundred  ninety-two of the vehicle and traffic law or a
    10  violation of subdivision two of section 240.37 of the penal law  or  any
    11  crime defined in the laws of this state other than a sex offense defined
    12  in  article  one  hundred thirty of the penal law, an offense defined in
    13  article two hundred sixty-three of  the  penal  law,  a  felony  offense
    14  defined  in  article one hundred twenty-five of the penal law, a violent
    15  felony offense defined in section 70.02 of the  penal  law,  a  class  A
    16  felony  offense  defined  in  the penal law, a felony offense defined in
    17  article one hundred five of the penal law where the  underlying  offense
    18  is  not an eligible offense, an attempt to commit an offense that is not
    19  an eligible offense if the attempt is a felony, or an offense for  which
    20  registration  as a sex offender is required pursuant to article six-C of
    21  the correction law.   For  the  purposes  of  this  section,  where  the
    22  [defendant]  applicant  is  convicted of more than one eligible offense,
    23  [committed as part of the same criminal transaction as defined in subdi-
    24  vision two of section 40.10 of this chapter,  those  offenses  shall  be
    25  considered one eligible offense] for which they were charged in separate

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD13177-01-9
        S. 6561                             2

     1  counts  of  one  indictment, information or complaint, or for which they
     2  were charged in two or more  indictments,  informations  or  complaints,
     3  filed  in  the  same court prior to entry of judgment under any of them,
     4  those offenses shall be considered one eligible offense.
     5    (b)  "Sentencing  judge"  shall mean the judge who pronounced sentence
     6  upon the conviction under consideration, or if that judge is  no  longer
     7  sitting  in  a  court  in  the  jurisdiction in which the conviction was
     8  obtained, any other judge who is sitting in the criminal court where the
     9  judgment of conviction was entered.
    10    (c) "Prosecutor" shall mean the prosecutor's  office  that  prosecuted
    11  the eligible offense.
    12    1-a.  The chief administrator of the courts shall, pursuant to section
    13  10.40 of this chapter, prescribe a form application which may be used by
    14  a defendant to apply for sealing pursuant to  this  section.  Such  form
    15  application  shall  include  all the essential elements required by this
    16  section to be included in an application for sealing.  Nothing  in  this
    17  subdivision shall be read to require a defendant to use such form appli-
    18  cation to apply for sealing.
    19    2.  (a)  [A  defendant]  An individual who has been convicted of up to
    20  [two] four eligible criminal offenses  but  not  more  than  one  felony
    21  offense  may  apply  to  the  court  in  which [he or she was] they were
    22  convicted of [the] their most serious  eligible  offense  to  have  such
    23  conviction  or convictions sealed. If all offenses are offenses with the
    24  same classification, the application shall be made to the court in which
    25  the [defendant] applicant was last convicted.
    26    (b) An application shall contain (i) a copy of a certificate of dispo-
    27  sition or other similar documentation for  any  offense  for  which  the
    28  [defendant]  applicant has been convicted, or an explanation of why such
    29  certificate or other documentation is not available; (ii) a sworn state-
    30  ment of the [defendant] applicant as to whether [he  or  she  has]  they
    31  have  filed, or then intends to file, any application for sealing of any
    32  other eligible offense; (iii) a copy of any other such application  that
    33  has  been  filed;  and  (iv)  a  sworn statement as to the conviction or
    34  convictions for which relief is being sought[; and (v)]. Applicants  may
    35  submit  a sworn statement of the reason or reasons why the court should,
    36  in its  discretion,  grant  such  sealing,  along  with  any  supporting
    37  documentation.
    38    (c)  A  copy  of any application for such sealing shall be served upon
    39  the [district attorney of the county in which  the  conviction,  or,  if
    40  more  than  one, the convictions, was or were obtained] prosecutor which
    41  prosecuted the eligible offense for which  a  conviction  was  obtained.
    42  The  [district attorney] prosecutor shall notify the court within forty-
    43  five days if [he or she objects] they  object  to  the  application  for
    44  sealing.  If the prosecutor has not notified the court within forty-five
    45  days  of their objection to the application for sealing, the court shall
    46  proceed with decision on the application.
    47    (d) When such application  is  filed  with  the  court,  it  shall  be
    48  assigned  to  the  sentencing  judge unless more than one application is
    49  filed in which case the application  shall  be  assigned  to  the  local
    50  court,  county  court  or  the  supreme court of the county in which the
    51  criminal court is located, who shall request and receive from the  divi-
    52  sion  of  criminal justice services a fingerprint based criminal history
    53  record of the [defendant] applicant, including any sealed or  suppressed
    54  records.  The division of criminal justice services also shall include a
    55  criminal history report, if any, from the  federal  bureau  of  investi-
    56  gation regarding any criminal history information that occurred in other
        S. 6561                             3

     1  jurisdictions.  The division is hereby authorized to receive such infor-
     2  mation from the federal bureau of investigation for this purpose, and to
     3  make such information available to the court, which may make this infor-
     4  mation available to the district attorney and the [defendant] applicant.
     5    3.  The  sentencing  judge,  or  local,  county or supreme court shall
     6  summarily deny the [defendant's] applicant's application when:
     7    (a) the [defendant] applicant is required to register as a sex  offen-
     8  der pursuant to article six-C of the correction law; or
     9    (b)  the  [defendant] applicant has previously obtained sealing of the
    10  maximum number of convictions allowable under  section  160.58  of  [the
    11  criminal procedure law] this article; or
    12    (c)  the  [defendant] applicant has previously obtained sealing of the
    13  maximum number of convictions allowable under subdivision four  of  this
    14  section; or
    15    (d)  the time period specified in subdivision five of this section has
    16  not yet been satisfied; or
    17    (e) the [defendant] applicant has an undisposed arrest or charge pend-
    18  ing; or
    19    (f) the [defendant] applicant was convicted of any crime that  is  not
    20  eligible  for  sealing under this section after the date of the entry of
    21  [judgement] judgment of the last conviction for which sealing is sought;
    22  or
    23    (g) [the defendant has failed to provide the court with  the  required
    24  sworn  statement  of  the  reasons why the court should grant the relief
    25  requested; or
    26    (h)] the [defendant] applicant has been convicted of two or more felo-
    27  nies or more than [two] four crimes.
    28    4. Provided that the application  is  not  summarily  denied  for  the
    29  reasons set forth in subdivision three of this section, [a defendant] an
    30  applicant  who  stands  convicted  of up to [two] four eligible criminal
    31  offenses[,] may obtain sealing  of  violations  of  subdivision  one  of
    32  section  eleven  hundred  ninety-two  of the vehicle and traffic law and
    33  subdivision two of section 240.37 of the penal law,  and  no  more  than
    34  [two] four eligible offenses but not more than one felony offense.
    35    5.  Any  eligible  offense may be sealed only after at least ten years
    36  have passed since the imposition of  the  sentence  on  the  defendant's
    37  latest  conviction  or,  if  the  defendant was sentenced to a period of
    38  incarceration, including a period of incarceration imposed  in  conjunc-
    39  tion  with  a sentence of probation, the defendant's latest release from
    40  incarceration. In calculating the ten year period  under  this  subdivi-
    41  sion,  any  period  of  time  the defendant spent incarcerated after the
    42  conviction for which the application for sealing  is  sought,  shall  be
    43  excluded and such ten year period shall be extended by a period or peri-
    44  ods equal to the time served under such incarceration.
    45    6.  Upon  determining that the application is not subject to mandatory
    46  denial pursuant to subdivision three of this section and that the appli-
    47  cation is opposed by the [district attorney] prosecutor, the  sentencing
    48  judge  or local, county or supreme court shall [conduct a hearing on the
    49  application in order to consider any evidence offered  by  either  party
    50  that  would  aid  the sentencing judge in his or her decision whether to
    51  seal the records of the defendant's convictions. No hearing is  required
    52  if  the  district  attorney  does not oppose the application] inform the
    53  applicant of their right to supplement their application with additional
    54  materials that would aid the sentencing judge in their decision or to  a
    55  hearing  on  the  application  in  order to consider arguments by either
    56  party that would aid the sentencing judge in their  decision.  Once  the
        S. 6561                             4

     1  applicant  indicates  whether  they  intend  to  proceed with or without
     2  supplementation or a hearing, the sentencing judge or local,  county  or
     3  supreme  court,  may proceed.  The court may hold a hearing upon request
     4  of the prosecutor.
     5    7. [In considering any such application, the sentencing judge or coun-
     6  ty  or  supreme court shall consider any relevant factors, including but
     7  not limited to:
     8    (a) the amount of time that has elapsed  since  the  defendant's  last
     9  conviction;
    10    (b)  the  circumstances  and  seriousness of the offense for which the
    11  defendant is seeking relief, including whether the arrest charge was not
    12  an eligible offense;
    13    (c) the circumstances and seriousness of any other offenses for  which
    14  the defendant stands convicted;
    15    (d)  the  character  of the defendant, including any measures that the
    16  defendant has taken toward  rehabilitation,  such  as  participating  in
    17  treatment  programs,  work, or schooling, and participating in community
    18  service or other volunteer programs;
    19    (e) any statements made by the victim of the  offense  for  which  the
    20  defendant is seeking relief;
    21    (f) the impact of sealing the defendant's record upon his or her reha-
    22  bilitation  and  upon  his  or her successful and productive reentry and
    23  reintegration into society; and
    24    (g) the impact of sealing the defendant's record on public safety  and
    25  upon  the public's confidence in and respect for the law] Upon determin-
    26  ing that the application is not subject to mandatory denial pursuant  to
    27  subdivision three of this section, the sentencing judge or local, county
    28  or  supreme  court shall order sealing, unless the prosecutor shows that
    29  exceptional circumstances weigh  against  such  relief.  In  determining
    30  whether  exceptional circumstances exist the court shall consider if the
    31  sealing would create an unreasonable risk  to  public  safety,  balanced
    32  against  the benefit of sealing the record upon the applicant's success-
    33  ful and productive reentry and reintegration into society.
    34    8. When a sentencing judge or local, county or  supreme  court  orders
    35  sealing  pursuant  to  this  section,  all  official records and papers,
    36  including judgments and orders of a court but  not  including  published
    37  court decisions or opinions or records and briefs on appeal, relating to
    38  the arrests, prosecutions, and convictions, including all duplicates and
    39  copies  thereof,  on file with the division of criminal justice services
    40  or any court, police agency or prosecutor's office shall be  sealed  and
    41  not  made  available to any person or public or private agency except as
    42  provided for in subdivision nine of this section; provided, however, the
    43  division shall retain any fingerprints, palmprints and  photographs,  or
    44  digital  images  of the same.  The clerk of such court shall immediately
    45  notify the commissioner of the division of  criminal  justice  services,
    46  the  heads  of all appropriate police departments and other law enforce-
    47  ment agencies, regarding the records that shall be  sealed  pursuant  to
    48  this  section.  The  clerk  also  shall  notify  any  court in which the
    49  [defendant] applicant has stated, pursuant to paragraph (b) of  subdivi-
    50  sion  two  of  this  section,  that  [he  or she has] they have filed or
    51  [intends] intend to file an application for sealing of any other  eligi-
    52  ble offense.
    53    9. Records sealed pursuant to this section shall be made available to:
    54    (a)  the [defendant] applicant or the [defendant's] applicant's desig-
    55  nated agent;
        S. 6561                             5

     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; or
     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; or
    16    (e) the criminal justice information services division of the  federal
    17  bureau  of  investigation,  for the purposes of responding to queries to
    18  the national instant criminal background check system regarding attempts
    19  to purchase or otherwise take possession of firearms, as defined  in  18
    20  USC 921 (a) (3).
    21    10.  A conviction which is sealed pursuant to this section is included
    22  within the definition of a conviction for the purposes of  any  criminal
    23  proceeding  in  which  the  fact  of  a prior conviction would enhance a
    24  penalty or is an element of the offense charged.
    25    11. No [defendant] person shall be  required  or  permitted  to  waive
    26  eligibility  for  sealing  pursuant to this section as part of a plea of
    27  guilty, sentence or any agreement related to a conviction for an  eligi-
    28  ble  offense  and  any such waiver shall be deemed void and wholly unen-
    29  forceable.
    30    12. Denial under this  section  is  without  prejudice  to  subsequent
    31  relief under this section.
    32    13.  An  application  under this section, and all pertinent papers and
    33  documents, shall be confidential and may not be made  available  to  any
    34  person  or public or private agency except where specifically authorized
    35  by the court.
    36    § 2. This act shall take effect on the ninetieth day  after  it  shall
    37  have  become  a  law and shall apply to all offenses committed prior to,
    38  on, or after such date.