Bill Text: NY S09228 | 2021-2022 | General Assembly | Introduced
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 1-0)
Status: (Introduced - Dead) 2022-05-12 - REFERRED TO CHILDREN AND FAMILIES [S09228 Detail]
Download: New_York-2021-S09228-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 9228 IN SENATE May 12, 2022 ___________ 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; 25 (vi) Notices; 26 (vii) Motions; 27 (viii) Legal memoranda; and EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD15621-01-2S. 9228 2 1 (ix) Orders. 2 (b) Law enforcement records, including but not limited to: 3 (i) Fingerprints, photographs, palmprints; 4 (ii) DNA samples; 5 (iii) Arrest records; 6 (iv) Demographic information that identifies a juvenile or the family 7 of a juvenile; and 8 (v) State criminal justice information system records. 9 (c) Personal social records, including but not limited to: 10 (i) Records of juvenile probation officers; 11 (ii) Medical records; 12 (iii) Psychiatric or psychological records; 13 (iv) Reports of preliminary inquiries and predisposition reports; 14 (v) Supervision records; 15 (vi) Birth certificates; 16 (vii) Individualized service plans; 17 (viii) Detention records; and 18 (ix) Demographic information that identifies a juvenile or the family 19 of a juvenile. 20 3. Upon a written petition and a finding of compelling interest, and 21 in accordance with the conditions below, the juvenile court may order 22 release of the juvenile name and designated portions of the records, 23 reports, and information described in paragraphs (a) through (c) of 24 subdivision two of this section to another person, department, entity, 25 or agency. 26 (a) The requesting party shall provide notice to the juvenile and his 27 or her attorney of the petition and an opportunity to object. 28 (b) The court shall hold a hearing on the petition if requested by the 29 petitioner or juvenile. 30 (c) The petition filed with the court and served on the juvenile and 31 his or her attorney shall state the following: 32 (i) The reason the person, department, entity, or agency is requesting 33 the information; 34 (ii) The use to be made of the information, including any intended 35 re-disclosure; and 36 (iii) The names of those persons within the department, entity, or 37 agency who will have access to the information. 38 (d) In ruling on the petition, the court shall consider the privacy 39 interests of the juvenile and potential risk of harm to the juvenile, 40 whether a compelling reason exists for release of the information, and 41 whether the release is necessary for the protection of an important 42 interest. 43 (e) The court may impose restrictions on the use and re-disclosure of 44 the released information. 45 4. An officer of the court with whom the proceedings pursuant to this 46 article are filed, or his or her clerk, either before or after the 47 conclusion of such proceedings, shall not permit a copy of any of the 48 documents relating to such proceedings to be taken or seen by any person 49 other than the respondent, the attorney for the child, an attorney 50 employed by the presentment agency, or an official employed by the 51 probation service, except by order of the court. 52 5. Notwithstanding the provisions of subdivision three of this 53 section, an officer of the court, or his or her clerk, shall not permit 54 access of any person to a record which has been expunged pursuant to 55 section 375.1 or section 375.2 of this article.S. 9228 3 1 6. A violation of this section shall create a cause of action for 2 civil damages of up to one thousand dollars. 3 § 2. The section heading and subdivisions 1 and 2 of section 354.1 of 4 the family court act, the section heading and subdivision 1 as added by 5 chapter 920 of the laws of 1982 and subdivision 2 as amended by chapter 6 645 of the laws of 1996, are amended and two new subdivisions 8 and 9 7 are added to read as follows: 8 Retention and destruction of fingerprints; DNA and other genetic mate- 9 rial of persons alleged to be juvenile delinquents. 10 1. If a person whose fingerprints, palmprints or photographs were 11 taken pursuant to section 306.1 of this article or who was initially 12 fingerprinted as a juvenile or adolescent offender and the action is 13 subsequently removed to a family court pursuant to article seven hundred 14 twenty-five or article seven hundred twenty-two of the criminal proce- 15 dure law is adjudicated to be a juvenile delinquent for a felony, the 16 family court shall forward or cause to be forwarded to the division of 17 criminal justice services notification of such adjudication and such 18 related information as may be required by such division, provided, 19 however, in the case of a person [eleven or] twelve years of age such 20 notification shall be provided only if the act upon which the adjudi- 21 cation is based would constitute a class A or B felony. 22 2. If a person whose fingerprints, palmprints or photographs were 23 taken pursuant to section 306.1 of this article or who was initially 24 fingerprinted as a juvenile or adolescent offender and the action is 25 subsequently removed to family court pursuant to article seven hundred 26 twenty-five or article seven hundred twenty-two of the criminal proce- 27 dure law has had all petitions disposed of by the family court in any 28 manner other than an adjudication of juvenile delinquency for a felony, 29 but in the case of acts committed when such person was [eleven or] 30 twelve years of age [which would constitute] other than an adjudication 31 of juvenile delinquency for a class A or B felony [only], all such fing- 32 erprints, palmprints, photographs, and copies thereof, and all informa- 33 tion relating to such allegations obtained by the division of criminal 34 justice services pursuant to section 306.1 of this article shall be 35 destroyed forthwith. The clerk of the court shall notify the commission- 36 er of the division of criminal justice services and the heads of all 37 police departments and law enforcement agencies having copies of such 38 records, who shall destroy such records without unnecessary delay. 39 8. When a person whose fingerprints, palmprints or photographs were 40 taken pursuant to section 306.1 of this article and who is subsequently 41 adjudicated a juvenile delinquent for a felony, but in the case of acts 42 committed when such person was twelve years of age other than an adjudi- 43 cation of juvenile delinquency for a class A or B felony, and the case 44 is expunged pursuant to section 375.1 or section 375.2 of this article, 45 all fingerprints, palmprints, photographs, and related information and 46 copies thereof obtained pursuant to section 306.1 of this article in the 47 possession of the division of criminal justice services, any police 48 department, law enforcement agency or any other agency shall be 49 destroyed forthwith. The division of criminal justice services shall 50 notify the agency or agencies which forwarded fingerprints to such divi- 51 sion pursuant to section 306.1 of this article of their obligation to 52 destroy those records in their possession. 53 9. If any DNA or other genetic material was obtained from a juvenile 54 by any law enforcement officer or other public servant acting in the 55 course of his or her official duties or by a state or local government 56 entity, other than DNA or other genetic material obtained in connectionS. 9228 4 1 with a parentage or related proceeding or a juvenile offender or adoles- 2 cent offender proceeding not removed to the family court, such material 3 and any analyses or reports regarding such material, as well as any 4 record included in any DNA identification index maintained by any 5 government entity, shall be expunged forthwith. Any DNA or other genetic 6 material obtained in connection with a parentage proceeding related 7 thereto or any juvenile offender or adolescent offender proceeding may 8 be used only in connection with such proceeding and may not be disclosed 9 to or utilized by any law enforcement agency or admitted into evidence 10 in any proceeding under this article. 11 § 3. Subdivisions 1 and 2 of section 354.1 of the family court act, as 12 amended by chapter 810 of the laws of 2021, are amended to read as 13 follows: 14 1. If a person whose fingerprints, palmprints or photographs were 15 taken pursuant to section 306.1 of this article or who was initially 16 fingerprinted as a juvenile or adolescent offender and the action is 17 subsequently removed to a family court pursuant to article seven hundred 18 twenty-five or article seven hundred twenty-two of the criminal proce- 19 dure law is adjudicated to be a juvenile delinquent for a felony, the 20 family court shall forward or cause to be forwarded to the division of 21 criminal justice services notification of such adjudication and such 22 related information as may be required by such division, provided, 23 however, in the case of a person twelve years of age such notification 24 shall be provided only if the act upon which the adjudication is based 25 would constitute a class A or B felony. 26 2. If a person whose fingerprints, palmprints or photographs were 27 taken pursuant to section 306.1 of this article or who was initially 28 fingerprinted as a juvenile or adolescent offender and the action is 29 subsequently removed to family court pursuant to article seven hundred 30 twenty-five or article seven hundred twenty-two of the criminal proce- 31 dure law has had all petitions disposed of by the family court in any 32 manner other than an adjudication of juvenile delinquency for a felony, 33 but in the case of acts committed when such person was twelve years of 34 age [which would constitute] other than an adjudication of juvenile 35 delinquency for a class A or B felony [only], all such fingerprints, 36 palmprints, photographs, and copies thereof, and all information relat- 37 ing to such allegations obtained by the division of criminal justice 38 services pursuant to section 306.1 of this article shall be destroyed 39 forthwith. The clerk of the court shall notify the commissioner of the 40 division of criminal justice services and the heads of all police 41 departments and law enforcement agencies having copies of such records, 42 who shall destroy such records without unnecessary delay. 43 § 4. Section 375.1 of the family court act, as added by chapter 920 44 of the laws of 1982, subdivision 1 as amended by chapter 41 of the laws 45 of 2010, paragraphs (d), (f) and (h) of subdivision 2 and subdivision 3 46 as amended and paragraph (i) of subdivision 2 as added by chapter 398 of 47 the laws of 1983, is amended to read as follows: 48 § 375.1. Order upon termination of a delinquency action in favor of 49 the respondent. 1. Upon termination of a delinquency proceeding against 50 a respondent in favor of such respondent, unless the presentment agency 51 upon written motion with not less than eight days notice to such 52 respondent demonstrates to the satisfaction of the court that the inter- 53 ests of justice require otherwise or the court on its own motion with 54 not less than eight days notice to such respondent determines that the 55 interest of justice require otherwise and states the reason for such 56 determination on the record, the clerk of the court shall immediatelyS. 9228 5 1 notify the counsel for the child, the director of the appropriate 2 presentment agency, and the heads of the appropriate probation depart- 3 ment and police department or other law enforcement agency, that the 4 proceeding has terminated in favor of the respondent and, unless the 5 court has directed otherwise, that the records of such action or 6 proceeding, other than those destroyed pursuant to section 354.1 of this 7 act, shall be [sealed] expunged. Upon receipt of such notification all 8 official records and papers, including judgments and orders of the 9 court, but not including public court decisions or opinions or records 10 and briefs on appeal, relating to the arrest, the prosecution and the 11 probation service proceedings, including all duplicates or copies there- 12 of, on file with the court, police agency, probation service and 13 presentment agency shall be [sealed] expunged, and not made available to 14 any person or public or private agency; provided, however, that the 15 probation service may retain a copy of the record under seal solely in 16 order to comply with subdivision four of section 308.1 of this article 17 until the respondent's eighteenth birthday or the conclusion of their 18 probation supervision, at which time all records shall be expunged. 19 Such records shall remain sealed during the pendency of any motion made 20 pursuant to this subdivision. 21 2. The effect of having a record expunged, whether pursuant to subdi- 22 vision one of this section or pursuant to section 375.2 of this part, 23 shall be that all juvenile records shall be destroyed and thereafter no 24 person or agency shall be allowed to release any information concerning 25 such record, except as provided by this section. The court, juvenile 26 probation office, law enforcement offices, presentment agency and any 27 other relevant agency shall reply to an inquiry that no juvenile record 28 exists with respect to the person whose record was expunged. 29 3. With respect to the matter in which the record was expunged and any 30 preceding action resulting from the same alleged conduct, the person who 31 is the subject of the record and the person's parent shall not be held 32 thereafter under any provision of law to be guilty of perjury or other- 33 wise giving a false statement by reason of the person's failure to 34 recite or acknowledge such record. 35 4. For the purposes of subdivision one of this section, a delinquency 36 proceeding shall be considered terminated in favor of a respondent 37 where: 38 (a) the petition is withdrawn; or 39 (b) the petition is dismissed under section 315.1 or 315.2 of this 40 article and the presentment agency has not appealed from such order or 41 the determination of an appeal or appeals from such order has been 42 against the presentment agency; or 43 (c) the petition has been deemed to have been dismissed under section 44 315.3 and the presentment agency has not appealed from such order or the 45 determination of an appeal or appeals from such order has been against 46 the presentment agency; provided, however, that an agreement to prevent 47 expungement under this section may not be required as a condition of an 48 adjournment in contemplation of dismissal under section 315.3 of this 49 article; or 50 (d) the petition is dismissed without prejudice under subdivision four 51 of section 325.3 of this article and the presentment agency has not 52 appealed from such order or the determination of an appeal or appeals 53 from such order has been against the presentment agency; or 54 (e) the entire petition has been dismissed under subdivision two of 55 section 345.1 of this article; orS. 9228 6 1 (f) the petition is dismissed under subdivision two of section 352.1 2 of this part; or 3 (g) prior to the filing of a petition, the probation department has 4 adjusted the case or terminated the case without adjustment; or 5 (h) prior to the filing of a petition the presentment agency chooses 6 not to proceed to petition; or 7 (i) the petition is dismissed pursuant to a motion made in accordance 8 with subdivision eight, nine or ten of section 332.1 of this article; or 9 (j) following an arrest, the arresting police agency, prior to the 10 filing of an accusatory instrument in court, elects not to proceed 11 further; or 12 (k) the respondent was adjudicated for an act that if committed by an 13 adult would constitute a crime under former sections 221.15, 221.20, 14 221.35, 221.40 or 240.37 or section 240.36 of the penal law; or 15 (l) the respondent was adjudicated for an act that was committed when 16 the respondent was under the age of twelve, other than the acts enumer- 17 ated in subparagraph (iii) of paragraph (a) of subdivision one of 18 section 301.2 of this article. 19 5. When a person was previously adjudicated delinquent as described in 20 paragraph (k) or (l) of subdivision four of this section, the chief 21 administrative judge of the state of New York shall, in accordance with 22 this section, automatically vacate, dismiss, and expunge such adjudi- 23 cation, and the office of court administration shall immediately notify 24 the state division of criminal justice services, directing that such 25 agency notify all relevant police and law enforcement agencies of their 26 duty to destroy all records related to such case. 27 [3.] 6. Records sealed pursuant to subdivision one shall be made 28 available to the respondent or his designated agent and the records and 29 papers of a probation service shall be available to any probation 30 service for the purpose of complying with subdivision four of section 31 308.1 of this article. 32 [4.] 7. If prior to the filing of a petition the presentment agency 33 elects not to commence a delinquency action it shall serve a certif- 34 ication of such disposition upon the appropriate probation service and 35 the appropriate police department or law enforcement agency, which, upon 36 receipt [thereto] thereof, shall comply with the provision of subdivi- 37 sion one of this section in the same manner as is required with respect 38 to an order of the court. 39 [5.] 8. If the probation service adjusts a delinquency case it shall 40 serve a certification of such disposition upon the appropriate police 41 department or law enforcement agency which, upon receipt thereof, shall 42 comply with the provisions of subdivision one of this section in the 43 same manner as is required thereunder with respect to an order of a 44 court. 45 [6.] 9. A respondent in whose favor a delinquency proceeding was 46 terminated prior to the effective date of this section may upon motion 47 apply to the court, upon not less than twenty days notice to the 48 presentment agency, for an order granting him the relief set forth in 49 subdivision one, and such order shall be granted unless the presentment 50 agency demonstrates to the satisfaction of the court that the interests 51 of justice require otherwise. A respondent in whose favor a delinquency 52 action or proceeding was terminated as defined by subdivisions four and 53 five, prior to the effective date of this section, may apply to the 54 appropriate presentment agency or probation service for a certification 55 as described in such subdivisions granting him the relief set forthS. 9228 7 1 therein and such certification shall be granted by such presentment 2 agency or probation service. 3 10. The chief administrative judge of the state of New York shall, in 4 accordance with this section, automatically expunge the juvenile record 5 of a respondent in whose favor a delinquency proceeding was terminated 6 prior to the effective date of this subdivision, and the office of court 7 administration shall immediately notify the state division of criminal 8 justice services, directing that such agency notify all relevant police 9 and law enforcement agencies of their duty to destroy all records 10 related to such case. 11 § 5. Section 375.2 of the family court act, as added by chapter 920 of 12 the laws of 1982, subdivision 6 as amended by section 77 of part WWW of 13 chapter 59 of the laws of 2017, and subdivision 7 as added by chapter 14 813 of the laws of 2021, is amended to read as follows: 15 § 375.2. Motion to [seal] expunge and automatic expungement after a 16 finding. 1. If an action has resulted in a finding of delinquency pursu- 17 ant to subdivision one of section 352.1 of this article, [other than a18finding that the respondent committed a designated felony act,] the 19 court may, in the interest of justice and upon motion of the respondent, 20 order the [sealing] expungement of appropriate records pursuant to 21 subdivision one of section 375.1 of this part. 22 2. Such motion must be in writing and may be filed at any time subse- 23 quent to the [entering of such finding] conclusion of the period of any 24 disposition, including, but not limited to, the expiration of the period 25 of placement, conditional discharge, order of protection, order of 26 restitution, order of probation or any extension thereof. Notice of such 27 motion shall be served upon the presentment agency not less than eight 28 days prior to the return date of the motion. Answering affidavits shall 29 be served at least two days before such time. The court shall rule on 30 the expungement after considering the following: 31 (a) the best interests of the person; 32 (b) the age of the person during his or her contact with the family 33 court or law enforcement agency; 34 (c) the nature of the offense; 35 (d) the disposition of the case; 36 (e) the manner in which the person participated in any court ordered 37 rehabilitative programming or supervised services; 38 (f) the time during which the person has been without contact with the 39 juvenile court; 40 (g) whether the person has any subsequent criminal convictions; and 41 (h) the adverse consequences the person will suffer as a result of 42 retention of his or her record. 43 3. The court shall state on the record its reasons for granting or 44 denying the motion. 45 4. [If such motion is denied, it may not be renewed for a period of46one year, unless the order of denial permits renewal at an earlier time.475.] The court shall not order the [sealing] expungement of any record 48 except as prescribed by this section or section 375.1 of this part. 49 [6. Such a motion cannot be filed until the respondent's sixteenth50birthday, or, commencing October first, two thousand eighteen, the51respondent's seventeenth birthday, or commencing October first, two52thousand nineteen, the respondent's eighteenth birthday.537.] 5. Where an order of fact-finding has been issued pursuant to 54 subdivision one of section 345.1 of this article that includes solely a 55 violation as defined in subdivision three of section 10.00 of the penal 56 law committed by a juvenile sixteen years of age or, commencing on Octo-S. 9228 8 1 ber first, two thousand nineteen, seventeen years of age, the records 2 shall be [sealed] expunged automatically at the expiration, as applica- 3 ble, of a successful period of an adjustment, adjournment in contem- 4 plation of dismissal or conditional discharge. 5 6. If an action has resulted in a finding of delinquency pursuant to 6 subdivision one of section 352.1 of this article, all records of such 7 action or proceeding not already expunged shall be automatically 8 expunged by the court upon the attainment of the respondent's twenty- 9 first birthday. 10 7. If expungement is obtained automatically or by motion, the court 11 shall order all agencies named in the juvenile court and probation 12 files, including each law enforcement agency, other state agencies which 13 may have records of the juvenile's adjudication, detention and treatment 14 facilities, to send that person's juvenile record to the court. The 15 court shall then destroy the paper and electronic records and mail an 16 affidavit of expungement to the agency. Each agency shall affirm in an 17 affidavit of expungement to the court that it destroyed all paper and 18 electronic copies of the expunged records. 19 8. An agreement by the respondent to prevent expungement under this 20 section may not be a condition for the respondent to enter an admission 21 to a reduced charge pursuant to section 321.3 of this article. 22 § 6. Section 381.2 of the family court act, as added by chapter 920 of 23 the laws of 1982, subdivision 2 as amended by chapter 926 of the laws of 24 1982, is amended to read as follows: 25 § 381.2. Use of records in other courts. 1. Neither the fact that a 26 person was before the family court under this article for a hearing nor 27 any confession, admission or statement made by him or her to the court 28 or to any officer thereof in any stage of the proceeding is admissible 29 as evidence against him or her or his or her interests, in any other 30 court. 31 2. Notwithstanding the provisions of subdivision one of this section, 32 another court, in imposing sentence upon an adult after conviction may 33 receive and consider the records and information on file with the family 34 court, unless such records and information have been [sealed] expunged 35 pursuant to section 375.1 or section 375.2 of this article. 36 § 7. Section 381.3 of the family court act, as added by chapter 920 of 37 the laws of 1982, paragraph (b) of subdivision 2 as amended by chapter 38 926 of the laws of 1982, is amended to read as follows: 39 § 381.3. Use of [police] law enforcement records. 1. All [police] law 40 enforcement records relating to the arrest, detention, apprehension, and 41 disposition of any person under this article shall be kept in files 42 separate and apart from the arrests of adults and shall be withheld from 43 public inspection. 44 2. All law enforcement records relating to the arrest, detention, 45 apprehension, and disposition of any juveniles shall be destroyed forth- 46 with upon the occurrence of one of the following: 47 (a) After the arrest of such person, the arresting law enforcement 48 agency, prior to the filing of an accusatory instrument in court, elects 49 not to proceed further; 50 (b) Prior to the filing of a petition, the presentment agency elects 51 not to commence a delinquency action; 52 (c) Prior to the filing of a petition, the probation department has 53 adjusted the case or terminated the case without adjustment; 54 (d) Termination of the delinquency action in favor of a respondent 55 pursuant to section 375.1 of this article; orS. 9228 9 1 (e) Following a finding of delinquency, sealing or expungement is 2 ordered pursuant to section 375.1 or 375.2 of this article. 3 3. Law enforcement or other public officials may not access or 4 disclose confidential juvenile records without a court order following 5 notice and a hearing pursuant to subdivision four of section 306.1 of 6 this article. 7 4. Notwithstanding the provisions of subdivision [one] three of this 8 section, the family court in the county in which the petition was adju- 9 dicated may, upon motion and for good cause shown, order such records 10 open: 11 (a) to the respondent or his or her parent or person responsible for 12 his or her care; or 13 (b) if the respondent is subsequently convicted of a crime, to a judge 14 of the court in which he was convicted, unless such record has been 15 [sealed] expunged pursuant to section 375.1 or section 375.2 of this 16 article. 17 [3.] 5. An order issued under subdivision [two] four must be in writ- 18 ing. 19 6. For the purposes of this section, "records" shall include law 20 enforcement files, reports, exhibits or other material which contains 21 information relating to contact with any law enforcement agency and also 22 includes electronic information recorded and stored stemming from an 23 arrest or subsequent interrogations and interviews, and shall also apply 24 to any information that is kept manually, through the use of electronic 25 data processing equipment, through electronic recording or by any other 26 means by a law enforcement agency of the state of New York. 27 7. Violation of this section shall create a cause of action for civil 28 damages up to one thousand dollars. 29 § 8. This act shall take effect on the ninetieth day after it shall 30 have become a law; provided, however, that if chapter 810 of the laws of 31 2021 shall not have taken effect on or before such date, then section 32 three of this act shall take effect on the same date and in the same 33 manner as chapter of the laws of 2021 takes effect.
