Bill Text: NY S07188 | 2017-2018 | General Assembly | Amended

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Bill Title: Relates to orders of adjournment in contemplation of dismissal by mandating that judges seal certain records of defendants rather than giving judges discretion for such an action; and limits the total period of adjournment to 90 days.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2018-05-31 - PRINT NUMBER 7188A [S07188 Detail]

Download: New_York-2017-S07188-Amended.html

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                STATE OF NEW YORK
        ________________________________________________________________________
                                         7188--A
                    IN SENATE
                                       (Prefiled)
                                     January 3, 2018
                                       ___________
        Introduced  by  Sen. HOYLMAN -- read twice and ordered printed, and when
          printed to be  committed  to  the  Committee  on  Codes  --  committee
          discharged, bill amended, ordered reprinted as amended and recommitted
          to said committee
        AN  ACT  to  amend  the criminal procedure law, in relation to orders of
          adjournment in contemplation of dismissal  and  sealing  of  defendant
          records
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
     1    Section 1. Subdivision 1 of section 160.58 of the  criminal  procedure
     2  law,  as  added  by  section  3 of part AAA of chapter 56 of the laws of
     3  2009, is amended to read as follows:
     4    1. A defendant convicted of any offense defined in article two hundred
     5  twenty or two hundred twenty-one of the penal law or a specified offense
     6  defined in subdivision five of section 410.91 of this  chapter  who  has
     7  successfully  completed  a  judicial diversion program under article two
     8  hundred sixteen of this chapter, or one of the programs heretofore known
     9  as drug treatment alternative to prison or another judicially sanctioned
    10  drug treatment program of similar duration, requirements  and  level  of
    11  supervision,  and  has completed the sentence imposed for the offense or
    12  offenses, [is eligible to] shall have such offense  or  offenses  sealed
    13  pursuant to this section.
    14    § 2. Subdivision 2 of section 160.58 of the criminal procedure law, as
    15  added  by  section  3  of part AAA of chapter 56 of the laws of 2009, is
    16  amended to read as follows:
    17    2. The court that sentenced the defendant to a  judicially  sanctioned
    18  drug  treatment  program  [may  on its own motion, or on the defendant's
    19  motion,] shall order that all official records and  papers  relating  to
    20  the arrest, prosecution and conviction which resulted in the defendant's
    21  participation  in  the  judicially  sanctioned drug treatment program be
    22  conditionally sealed. In such case, the  court  may  also  conditionally
    23  seal  the  arrest,  prosecution  and conviction records for no more than
    24  [three] five of the defendant's prior  [eligible]  misdemeanors,  [which

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD13750-07-8
        S. 7188--A                          2

     1  for  purposes  of  this  subdivision  shall  be  limited  to misdemeanor
     2  offenses defined in article two hundred twenty or two hundred twenty-one
     3  of the penal law.  The court may only seal the records  of  the  defend-
     4  ant's arrests, prosecutions and convictions when] provided that a misde-
     5  meanor for which registration as a sex offender is required shall not be
     6  sealed pursuant to this section. The court may seal such records when:
     7    (a)  the sentencing court has requested and received from the division
     8  of criminal justice services or the Federal Bureau  of  Investigation  a
     9  fingerprint  based  criminal  history record of the defendant, including
    10  any sealed or suppressed information. The division of  criminal  justice
    11  services  shall also include a criminal history report, if any, from the
    12  Federal Bureau of Investigation regarding any criminal history  informa-
    13  tion  that  occurred  in  other  jurisdictions.  The  division is hereby
    14  authorized to receive such information from the Federal Bureau of Inves-
    15  tigation for this purpose. The parties shall  be  permitted  to  examine
    16  these records;
    17    (b)  the  defendant or court has identified the misdemeanor conviction
    18  or convictions for which relief may be granted;
    19    (c) the court has received documentation that the sentences imposed on
    20  the [eligible] misdemeanor convictions have been  completed,  or  if  no
    21  such  documentation  is reasonably available, a sworn affidavit that the
    22  sentences imposed on the prior misdemeanors have been completed; and
    23    (d) the court has notified the district attorney of each  jurisdiction
    24  in  which the defendant has been convicted of an offense with respect to
    25  which sealing is sought, and the court or  courts  of  record  for  such
    26  offenses,  that  the  court  is  considering  sealing the records of the
    27  defendant's [eligible] misdemeanor convictions. Both the district attor-
    28  ney and the court shall be given a reasonable opportunity,  which  shall
    29  not  be  less than thirty days, in which to comment and submit materials
    30  to aid the court in making such a determination.
    31    § 3. Subdivision 3 of section 160.58 of the criminal procedure law, as
    32  added by section 3 of part AAA of chapter 56 of the  laws  of  2009,  is
    33  amended to read as follows:
    34    3. At the request of the defendant or the district attorney of a coun-
    35  ty  in  which the defendant committed a crime that is the subject of the
    36  sealing application, the court [may] shall conduct a hearing to consider
    37  and review any relevant evidence offered by either party that would  aid
    38  the court in its decision whether to seal the records of the defendant's
    39  arrests, prosecutions and convictions. In making such [a] determination,
    40  the court shall consider any relevant factors, including but not limited
    41  to the following factors: (i) the circumstances [and seriousness] of the
    42  offense or offenses that resulted in the conviction or convictions; (ii)
    43  [the  character  of the defendant, including his or her] the defendant's
    44  completion of the judicially sanctioned treatment program  as  described
    45  in  subdivision  one  of  this  section;  (iii) the defendant's criminal
    46  conviction history taking into account the time that has  elapsed  since
    47  the  occurrence  of  any  conviction and the age of the defendant at the
    48  time of such conviction; and (iv) the impact of sealing the  defendant's
    49  records  upon  his  or  her rehabilitation and his or her successful and
    50  productive reentry and reintegration into society, and on public safety.
    51    § 4. Subdivision 2 of section 170.55 of the criminal procedure law, as
    52  amended by chapter 222 of the laws  of  1994,  is  amended  to  read  as
    53  follows:
    54    2.  An  adjournment in contemplation of dismissal is an adjournment of
    55  the action without date ordered [with a view to ultimate]  intended  for
    56  the  dismissal  of  the accusatory instrument in furtherance of justice.
        S. 7188--A                          3
     1  Upon issuing such an order, the court must release the defendant on  his
     2  own recognizance.  [Upon application of the people, made at any time not
     3  more  than  six months, or in the case of a family offense as defined in
     4  subdivision  one  of section 530.11 of this chapter, one year, after the
     5  issuance of such order, the court may restore the case to  the  calendar
     6  upon  a  determination that dismissal of the accusatory instrument would
     7  not be in furtherance of justice, and the action must thereupon proceed.
     8  If the case is not so restored within such six months or one year  peri-
     9  od,  the  accusatory  instrument  is,  at the expiration of such period,
    10  deemed to have been dismissed by the court in furtherance  of  justice.]
    11  At  any  time  prior to dismissal the court may modify the conditions or
    12  extend or reduce the term of adjournment, except that the  total  period
    13  of  adjournment shall not exceed ninety days, or in the case of a family
    14  offense as defined in section 530.11 of  this  chapter,  the  period  of
    15  adjournment  shall  not  be  more  than  one year. Upon violation of any
    16  condition fixed by the court, the court may revoke its order and restore
    17  the case to the calendar and the prosecution may proceed. If the case is
    18  not so restored to the calendar during the period fixed  by  the  court,
    19  the  accusatory  instrument is, at the expiration of such period, deemed
    20  to have been dismissed.
    21    § 5. Section 170.56 of the criminal procedure law, as added by chapter
    22  1042 of the laws of 1971, subdivision 1 as amended by chapter 360 of the
    23  laws of 1977 and subdivision 3 as amended by chapter 905 of the laws  of
    24  1977, is amended to read as follows:
    25  § 170.56 Adjournment  in  contemplation  of dismissal in cases involving
    26             marihuana.
    27    1.  Upon or after arraignment in a local criminal court upon an infor-
    28  mation, a prosecutor's information or a misdemeanor complaint, where the
    29  sole remaining count or counts  charge  a  violation  or  violations  of
    30  section  221.05,  221.10,  221.15, 221.35 or 221.40 of the penal law and
    31  before the entry of a plea of guilty thereto or commencement of  a trial
    32  thereof, the court, upon motion of  a  defendant,  may  order  that  all
    33  proceedings  be  suspended  and the action adjourned in contemplation of
    34  dismissal, or upon a finding that adjournment would not be necessary [or
    35  appropriate] and the setting forth in the record of the reasons for such
    36  findings, may dismiss in furtherance of justice the  accusatory  instru-
    37  ment[;  provided, however, that the court may not order such adjournment
    38  in contemplation of dismissal or dismiss the accusatory  instrument  if:
    39  (a)  the  defendant  has  previously  been  granted  such adjournment in
    40  contemplation of dismissal, or (b) the  defendant  has  previously  been
    41  granted  a dismissal under this section, or (c) the defendant has previ-
    42  ously been convicted of any offense involving controlled substances,  or
    43  (d)  the  defendant  has  previously  been  convicted of a crime and the
    44  district attorney does not consent or (e) the defendant  has  previously
    45  been  adjudicated  a  youthful  offender on the basis of any act or acts
    46  involving controlled substances  and  the  district  attorney  does  not
    47  consent].
    48    2.  [Upon ordering the action adjourned in contemplation of dismissal,
    49  the  court  must  set and specify such conditions for the adjournment as
    50  may be appropriate, and such conditions may include placing the  defend-
    51  ant  under  the supervision of any public or private agency. At any time
    52  prior to dismissal the court may modify  the  conditions  or  extend  or
    53  reduce  the  term  of  the  adjournment, except that the total period of
    54  adjournment shall not exceed twelve  months.    Upon  violation  of  any
    55  condition fixed by the court, the court may revoke its order and restore
    56  the case to the calendar and the prosecution thereupon must proceed.  If
        S. 7188--A                          4

     1  the  case  is not so restored to the calendar during the period fixed by
     2  the court, the accusatory instrument is, at the expiration of such peri-
     3  od, deemed to have been dismissed in the  furtherance  of  justice.]  An
     4  adjournment  in  contemplation  of  dismissal  is  an adjournment of the
     5  action without date ordered intended for the dismissal of the accusatory
     6  instrument in furtherance of justice. Upon issuing such  an  order,  the
     7  court  must  release the defendant on his own recognizance.  At any time
     8  prior to dismissal the court may modify  the  conditions  or  extend  or
     9  reduce the term of adjournment, except that the total period of adjourn-
    10  ment shall not exceed ninety days. Upon violation of any condition fixed
    11  by the court, the court may revoke its order and restore the case to the
    12  calendar and the prosecution may proceed. If the case is not so restored
    13  to  the  calendar  during  the period fixed by the court, the accusatory
    14  instrument is, at the expiration of such period,  deemed  to  have  been
    15  dismissed.
    16    3.  Upon  or  after dismissal of such charges against a defendant [not
    17  previously convicted of a crime,] the court shall order that  all  offi-
    18  cial  records  and papers, relating to the defendant's arrest and prose-
    19  cution, whether on file with the court, a police agency, or the New York
    20  state division of criminal justice services, be sealed  and,  except  as
    21  otherwise provided in paragraph (d) of subdivision one of section 160.50
    22  of  this  chapter, not made available to any person or public or private
    23  agency[; except, such records shall be made available under order  of  a
    24  court for the purpose of determining whether, in subsequent proceedings,
    25  such  person qualifies under this section for a dismissal or adjournment
    26  in contemplation of dismissal of the accusatory instrument].
    27    4. Upon the granting of an order pursuant to subdivision three of this
    28  section, the arrest and prosecution shall be deemed a  nullity  and  the
    29  defendant  shall  be restored, in contemplation of law, to the status he
    30  occupied before his arrest and prosecution.
    31    § 6. This act shall take effect on the sixtieth  day  after  it  shall
    32  have become a law.