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.
TITLE OF BILL: 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
PURPOSE: To allow the sealing of non-violent, non-sexual misdemeanor offenses.
SUMMARY OF PROVISIONS: The criminal procedure law is amended by adding 160.65 to allow the sealing of certain criminal records.
Section 1(a) defines the term "nonviolent misdemeanor".
Section 1(b) defines the term "non-sexual misdemeanor".
Section 2 indicates that any nonviolent, non-sexual misdemeanor offense is eligible for sealing.
Section 3 indicates the requirements for sealing of a record including that the individual has not been convicted of a felony or misdemeanor in the past 5 years.
Section 4 indicates that upon conviction for a sealable offense or being placed under supervision for a sealable offense the accused shall be informed by the court of the right to have the record sealed.
Section 5 describes the application procedure and the process for sealing. This section also indicates that once sealing is granted the individual shall not be required to divulge information that he/she has been convicted of the sealed offense.
Sections 6 through 7 describe the record-gathering and sealing processes as well as indicating who may have access to the sealed records.
Section 8 indicates that the sealed records will be restored and may be used against the individual if the person is subsequently convicted of any state or federal offense.
JUSTIFICATION: A misdemeanor offense can follow a person for the rest of his or her life. Even if he or she has fully reformed and committed no further criminal acts the record still exists and can for the basis for discrimination in employment or other areas. This bill would allow a person who has been convicted of a non-sexual, nonviolent misdemeanor offense to apply to the Court to have their record sealed. Once sealed, the former offender would have the right
to legally indicate "no" when asked if he/she has ever been convicted of the sealed misdemeanor. However, if the individual is subsequently convicted of a subsequent offense the record is unsealed and may be used against him/her.
EXISTING LAW: There is currently no process for the sealing of misdemeanor offenses.
LEGISLATIVE HISTORY: S.682 of 2011 01/05/2011 REFERRED TO CODES
FISCAL IMPLICATIONS: Unknown.
LOCAL FISCAL IMPLICATIONS: Unknown.
EFFECTIVE DATE: This act shall take effect on the 180th day after becoming a law.
STATE OF NEW YORK ________________________________________________________________________ 134 2013-2014 Regular Sessions IN SENATE (PREFILED) January 9, 2013 ___________Introduced by Sen. SAMPSON -- 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: Section 1. This act shall be known and may be cited as the "second chance for ex-offenders act". S 2. The criminal procedure law is amended by adding a new section 160.65 to read as follows: S 160.65 CONDITIONAL SEALING OF CERTAIN MISDEMEANOR OFFENSES. 1. FOR THE PURPOSES OF THIS SECTION, THE TERM "ELIGIBLE MISDEMEANOR" SHALL BE A MISDEMEANOR OFFENSE DEFINED IN THE PENAL LAW, PROVIDED THAT AN ELIGIBLE MISDEMEANOR SHALL NOT MEAN A MISDEMEANOR OFFENSE DEFINED IN ARTICLE ONE HUNDRED TWENTY, ONE HUNDRED THIRTY, ONE HUNDRED THIRTY-FIVE, ONE HUNDRED FIFTY, TWO HUNDRED THIRTY-FIVE, TWO HUNDRED FORTY-FIVE, TWO HUNDRED SIXTY, TWO HUNDRED SIXTY-THREE, TWO HUNDRED SIXTY-FIVE OR ARTI- CLE FOUR HUNDRED OF THE PENAL LAW. AN ELIGIBLE MISDEMEANOR SHALL NOT INCLUDE ANY ONE OR MORE OF THE FOLLOWING: KILLING OR INJURING A POLICE ANIMAL AS DEFINED IN SECTION 195.06, HARMING AN ANIMAL TRAINED TO AID A PERSON WITH A DISABILITY IN THE SECOND DEGREE AS DEFINED IN SECTION 195.11, HARMING AN ANIMAL TRAINED TO AID A PERSON WITH A DISABILITY IN THE FIRST DEGREE AS DEFINED IN SECTION 195.12, PROMOTING PROSTITUTION IN THE FOURTH DEGREE AS DEFINED IN SECTION 230.20, RIOT IN THE SECOND DEGREE AS DEFINED IN SECTION 240.05, INCITING TO RIOT AS DEFINED IN SECTION 240.08, AGGRAVATED HARASSMENT IN THE SECOND DEGREE AS DEFINED IN SUBDIVISION THREE OF SECTION 240.30, CRIMINAL INTERFERENCE WITH HEALTH CARE SERVICES OR RELIGIOUS WORSHIP IN THE SECOND DEGREE AS DEFINED IN SECTION 240.70, HARMING A SERVICE ANIMAL IN THE SECOND DEGREE AS DEFINEDEXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD00755-01-3 S. 134 2
IN SECTION 242.10, DISSEMINATION OF AN UNLAWFUL SURVEILLANCE IMAGE IN THE SECOND DEGREE AS DEFINED IN SECTION 250.55, OR ANY SPECIFIED OFFENSE SUBJECT TO THE PROVISION RELATING TO HATE CRIMES AS DEFINED IN SECTION 485.05 OF THE PENAL LAW. ADDITIONALLY, AN ELIGIBLE MISDEMEANOR SHALL NOT INCLUDE CRIMINAL SOLICITATION, CONSPIRACY, ATTEMPT, OR CRIMINAL FACILI- TATION TO COMMIT ANY VIOLENT FELONY OFFENSE AS DEFINED IN SECTION 70.02 OF THE PENAL LAW, OR ANY SEX OFFENSE AS DEFINED UNDER SUBDIVISION TWO OF SECTION ONE HUNDRED SIXTY-EIGHT-A OF THE CORRECTION LAW. 2. A PERSON HAVING A CONVICTION FOR NO MORE THAN THREE MISDEMEANORS, WHO DOES NOT STAND CONVICTED OF ANY FELONY, OR WHO IS NOT REQUIRED TO MAINTAIN REGISTRATION UNDER ARTICLE SIX-C OF THE CORRECTION LAW, MAY PETITION THE COURT TO CONDITIONALLY SEAL UP TO THREE ELIGIBLE MISDEMEA- NORS WHEN: (A) AT LEAST FIVE YEARS HAVE PASSED SINCE THE COMPLETION OF A SENTENCE ON AN ELIGIBLE MISDEMEANOR; AND (B) SUCH PERSON HAS NOT BEEN CONVICTED OF AN OFFENSE DURING THE LAST FIVE YEARS AND IS NOT THE SUBJECT OF AN UNDISPOSED ARREST. 3. THE PETITION AUTHORIZED BY THIS SECTION SHALL BE FILED IN THE COURT OF RECORD THAT LAST IMPOSED A SENTENCE UPON PETITIONER FOR AN ELIGIBLE MISDEMEANOR. ON THE DEFENDANT'S MOTION, THE COURT MAY ORDER THAT ALL OFFICIAL RECORDS AND PAPERS RELATING TO THE ARREST, PROSECUTION AND CONVICTION RECORDS FOR NO MORE THAN THREE OF THE DEFENDANT'S PRIOR ELIGIBLE MISDEMEANORS BE CONDITIONALLY SEALED. THE COURT MAY ONLY SEAL THE RECORDS OF THE DEFENDANT'S ARRESTS, PROSECUTIONS AND CONVICTIONS WHEN: (A) THE SENTENCING COURT HAS REQUESTED AND RECEIVED FROM THE DIVISION OF CRIMINAL JUSTICE SERVICES OR THE FEDERAL BUREAU OF INVESTIGATION A FINGERPRINT BASED CRIMINAL HISTORY RECORD OF THE DEFENDANT, INCLUDING ANY SEALED OR SUPPRESSED INFORMATION. THE DIVISION OF CRIMINAL JUSTICE SERVICES SHALL ALSO INCLUDE A CRIMINAL HISTORY REPORT, IF ANY, FROM THE FEDERAL BUREAU OF INVESTIGATION REGARDING ANY CRIMINAL HISTORY INFORMA- TION THAT OCCURRED IN OTHER JURISDICTIONS. THE DIVISION IS HEREBY AUTHORIZED TO RECEIVE SUCH INFORMATION FROM THE FEDERAL BUREAU OF INVES- TIGATION FOR THIS PURPOSE. THE PARTIES SHALL BE PERMITTED TO EXAMINE THESE RECORDS; (B) THE DEFENDANT OR COURT HAS IDENTIFIED THE MISDEMEANOR CONVICTION OR CONVICTIONS FOR WHICH RELIEF MAY BE GRANTED; (C) THE COURT HAS RECEIVED DOCUMENTATION THAT THE SENTENCES IMPOSED ON THE ELIGIBLE MISDEMEANOR CONVICTIONS HAVE BEEN COMPLETED, OR IF NO SUCH DOCUMENTATION IS REASONABLY AVAILABLE, A SWORN AFFIDAVIT THAT THE SENTENCES IMPOSED ON THE PRIOR MISDEMEANORS HAVE BEEN COMPLETED; AND (D) THE COURT HAS NOTIFIED THE DISTRICT ATTORNEY OF EACH JURISDICTION IN WHICH THE DEFENDANT HAS BEEN CONVICTED OF AN OFFENSE WITH RESPECT TO WHICH SEALING IS SOUGHT, AND THE COURT OR COURTS OF RECORD FOR SUCH OFFENSES, THAT THE COURT IS CONSIDERING SEALING THE RECORDS OF THE DEFENDANT'S ELIGIBLE MISDEMEANOR CONVICTIONS. BOTH THE DISTRICT ATTORNEY AND THE COURT SHALL BE GIVEN A REASONABLE OPPORTUNITY, WHICH SHALL NOT BE LESS THAN THIRTY DAYS, IN WHICH TO COMMENT AND SUBMIT MATERIALS TO AID THE COURT IN MAKING SUCH A DETERMINATION. WHEN THE COURT NOTIFIES A DISTRICT ATTORNEY OF A SEALING APPLICATION, THE DISTRICT ATTORNEY SHALL PROVIDE NOTICE TO THE VICTIM, IF ANY, OF THE SEALING APPLICATION BY MAILING WRITTEN NOTICE TO THE VICTIM'S LAST-KNOWN ADDRESS. FOR PURPOSES OF THIS SECTION "VICTIM" MEANS ANY PERSON WHO HAS SUSTAINED PHYSICAL OR FINANCIAL INJURY TO PERSON OR TO PROPERTY AS A DIRECT RESULT OF THE MISDEMEANOR CRIME OR MISDEMEANOR CRIMES FOR WHICH SEALING IS APPLIED.S. 134 3
4. AT THE REQUEST OF THE DEFENDANT OR THE DISTRICT ATTORNEY OF A COUN- TY IN WHICH THE DEFENDANT COMMITTED A CRIME THAT IS THE SUBJECT OF THE SEALING APPLICATION, THE COURT MAY CONDUCT A HEARING TO CONSIDER AND REVIEW ANY RELEVANT EVIDENCE OFFERED BY EITHER PARTY THAT WOULD AID THE COURT IN ITS DECISION WHETHER TO SEAL THE RECORDS OF THE DEFENDANT'S ARRESTS, PROSECUTIONS AND CONVICTIONS. IN MAKING SUCH A DETERMINATION, THE COURT SHALL CONSIDER ANY RELEVANT FACTORS, INCLUDING BUT NOT LIMITED TO: (A) THE CIRCUMSTANCES AND SERIOUSNESS OF THE OFFENSE OR OFFENSES THAT RESULTED IN THE CONVICTION OR CONVICTIONS; (B) THE CHARACTER OF THE DEFENDANT, INCLUDING WHAT STEPS THE PETITION- ER HAS TAKEN SINCE THE TIME OF THE OFFENSE TOWARD PERSONAL REHABILI- TATION, INCLUDING TREATMENT, WORK, SCHOOL, OR OTHER PERSONAL HISTORY THAT DEMONSTRATES REHABILITATION; (C) THE DEFENDANT'S CRIMINAL HISTORY; (D) THE IMPACT OF SEALING THE DEFENDANT'S RECORDS UPON HIS OR HER REHABILITATION AND HIS OR HER SUCCESSFUL AND PRODUCTIVE REENTRY AND REINTEGRATION INTO SOCIETY, AND ON PUBLIC SAFETY; AND (E) ANY STATEMENTS MADE BY THE VICTIM OF THE OFFENSE WHERE THERE IS IN FACT A VICTIM OF THE CRIME. 5. AFTER A COURT DECLARES ITS WILLINGNESS TO GRANT THE DEFENDANT'S REQUEST FOR CONDITIONAL SEALING PURSUANT TO THIS SECTION, BUT BEFORE THE COURT ORDERS SEALING PURSUANT TO THIS SECTION, THE DEFENDANT SHALL PAY A MANDATORY CONDITIONAL SEALING FEE. THE MANDATORY CONDITIONAL SEALING FEE WILL BE A FEE OF EIGHTY DOLLARS, HOWEVER, SUCH FILING FEE SHALL BE WAIVED IN CASES OF INDIGENCE. THE MANDATORY FILING FEE SHALL BE PAID TO THE CLERK OF THE COURT OR ADMINISTRATIVE TRIBUNAL THAT RENDERED THE CONVICTION. WITHIN THE FIRST TEN DAYS OF THE MONTH FOLLOWING COLLECTION OF THE MANDATORY FILING FEE, THE COLLECTING AUTHORITY IF IT IS AN ADMIN- ISTRATIVE TRIBUNAL, OR A TOWN OR VILLAGE JUSTICE COURT, SHALL THEN PAY SUCH MONEY TO THE STATE COMPTROLLER WHO SHALL DEPOSIT SUCH MONEY IN THE STATE TREASURY PURSUANT TO SECTION ONE HUNDRED TWENTY-ONE OF THE STATE FINANCE LAW TO THE CREDIT OF THE INDIGENT LEGAL SERVICES FUND. IF SUCH COLLECTING AUTHORITY IS ANY OTHER COURT OF THE UNIFIED COURT SYSTEM, IT SHALL, WITHIN SUCH PERIOD, PAY SUCH MONEY ATTRIBUTABLE TO THE MANDATORY FILING FEE TO THE STATE COMMISSIONER OF TAXATION AND FINANCE TO THE CREDIT OF THE INDIGENT LEGAL SERVICES FUND ESTABLISHED BY SECTION NINE- TY-EIGHT-B OF THE STATE FINANCE LAW. 6. WHEN A COURT ORDERS SEALING PURSUANT TO THIS SECTION, ALL OFFICIAL RECORDS AND PAPERS RELATING TO THE ARRESTS, PROSECUTIONS, AND CONVICTIONS, INCLUDING ALL DUPLICATES AND COPIES THEREOF, ON FILE WITH THE DIVISION OF CRIMINAL JUSTICE SERVICES OR ANY COURT SHALL BE SEALED AND NOT MADE AVAILABLE TO ANY PERSON OR PUBLIC OR PRIVATE AGENCY; PROVIDED, HOWEVER, THE DIVISION SHALL RETAIN ANY FINGERPRINTS, PALM- PRINTS, PHOTOGRAPHS, OR DIGITAL IMAGES OF THE SAME. 7. WHEN THE COURT ORDERS SEALING PURSUANT TO THIS SECTION, THE CLERK OF SUCH COURT SHALL IMMEDIATELY NOTIFY THE COMMISSIONER OF THE DIVISION OF CRIMINAL JUSTICE SERVICES, AND ANY COURT THAT SENTENCED THE DEFENDANT FOR AN OFFENSE WHICH HAS BEEN CONDITIONALLY SEALED, REGARDING THE RECORDS THAT SHALL BE SEALED PURSUANT TO THIS SECTION. 8. RECORDS SEALED PURSUANT TO THIS SUBDIVISION SHALL BE MADE AVAILABLE TO: (A) THE DEFENDANT OR THE DEFENDANT'S DESIGNATED AGENT; (B) QUALIFIED AGENCIES, AS DEFINED IN SUBDIVISION NINE OF SECTION EIGHT HUNDRED THIRTY-FIVE OF THE EXECUTIVE LAW, AND FEDERAL AND STATES. 134 4
LAW ENFORCEMENT AGENCIES, WHEN ACTING WITHIN THE SCOPE OF THEIR LAW ENFORCEMENT DUTIES; (C) ANY STATE OR LOCAL OFFICER OR AGENCY WITH RESPONSIBILITY FOR THE ISSUANCE OF LICENSES TO POSSESS GUNS, WHEN THE PERSON HAS MADE APPLICA- TION FOR SUCH A LICENSE; OR (D) ANY PROSPECTIVE EMPLOYER OF A POLICE OFFICER OR PEACE OFFICER AS THOSE TERMS ARE DEFINED IN SUBDIVISIONS THIRTY-THREE AND THIRTY-FOUR OF SECTION 1.20 OF THIS CHAPTER, IN RELATION TO AN APPLICATION FOR EMPLOY- MENT AS A POLICE OFFICER OR PEACE OFFICER; PROVIDED, HOWEVER, THAT EVERY PERSON WHO IS AN APPLICANT FOR THE POSITION OF POLICE OFFICER OR PEACE OFFICER SHALL BE FURNISHED WITH A COPY OF ALL RECORDS OBTAINED UNDER THIS PARAGRAPH AND AFFORDED AN OPPORTUNITY TO MAKE AN EXPLANATION THERE- TO. 9. THE COURT SHALL NOT SEAL THE DEFENDANT'S RECORD PURSUANT TO THIS SECTION WHILE ANY CHARGED OFFENSE IS PENDING. 10. IF, SUBSEQUENT TO THE SEALING OF RECORDS PURSUANT TO THIS SUBDIVI- SION, THE PERSON WHO IS THE SUBJECT OF SUCH RECORDS IS ARRESTED FOR OR FORMALLY CHARGED WITH ANY MISDEMEANOR OR FELONY OFFENSE, SUCH RECORDS SHALL BE UNSEALED IMMEDIATELY AND REMAIN UNSEALED; PROVIDED, HOWEVER, THAT IF SUCH NEW MISDEMEANOR OR FELONY ARREST RESULTS IN A TERMINATION IN FAVOR OF THE ACCUSED AS DEFINED IN SUBDIVISION THREE OF SECTION 160.50 OF THIS ARTICLE OR BY CONVICTION FOR A NON-CRIMINAL OFFENSE AS DESCRIBED IN SECTION 160.55 OF THIS ARTICLE, SUCH UNSEALED RECORDS SHALL BE CONDITIONALLY SEALED PURSUANT TO THIS SECTION. S 3. Subdivision 16 of section 296 of the executive law, as separately amended by section 3 of part N and section 14 of part AAA of chapter 56 of the laws of 2009, is amended to read as follows: 16. It shall be an unlawful discriminatory practice, unless specif- ically required or permitted by statute, for any person, agency, bureau, corporation or association, including the state and any political subdi- vision thereof, to make any inquiry about, whether in any form of appli- cation or otherwise, or to act upon adversely to the individual involved, any arrest or criminal accusation of such individual not then pending against that individual which was followed by a termination of that criminal action or proceeding in favor of such individual, as defined in subdivision two of section 160.50 of the criminal procedure law, or by a youthful offender adjudication, as defined in subdivision one of section 720.35 of the criminal procedure law, or by a conviction for a violation sealed pursuant to section 160.55 of the criminal proce- dure law or by a conviction which is sealed pursuant to section 160.58 of the criminal procedure law, OR BY A CONVICTION WHICH IS SEALED PURSU- ANT TO SECTION 160.65 OF THE CRIMINAL PROCEDURE LAW, in connection with the licensing, employment or providing of credit or insurance to such individual; provided, further, that no person shall be required to divulge information pertaining to any arrest or criminal accusation of such individual not then pending against that individual which was followed by a termination of that criminal action or proceeding in favor of such individual, as defined in subdivision two of section 160.50 of the criminal procedure law, or by a youthful offender adjudication, as defined in subdivision one of section 720.35 of the criminal procedure law, or by a conviction for a violation sealed pursuant to section 160.55 of the criminal procedure law, or by a conviction which is sealed pursuant to section 160.58 of the criminal procedure law, OR BY A CONVICTION WHICH IS SEALED PURSUANT TO SECTION 160.65 OF THE CRIMINAL PROCEDURE LAW. The provisions of this subdivision shall not apply to the licensing activities of governmental bodies in relation to the regu-S. 134 5
lation of guns, firearms and other deadly weapons or in relation to an application for employment as a police officer or peace officer as those terms are defined in subdivisions thirty-three and thirty-four of section 1.20 of the criminal procedure law; provided further that the provisions of this subdivision shall not apply to an application for employment or membership in any law enforcement agency with respect to any arrest or criminal accusation which was followed by a youthful offender adjudication, as defined in subdivision one of section 720.35 of the criminal procedure law, or by a conviction for a violation sealed pursuant to section 160.55 of the criminal procedure law, or by a conviction which is sealed pursuant to section 160.58 of the criminal procedure law, OR BY A CONVICTION WHICH IS SEALED PURSUANT TO SECTION 160.65 OF THE CRIMINAL PROCEDURE LAW. S 4. This act shall take effect on the one hundred eightieth day after it shall have become a law and shall apply to all convictions occurring prior to, on, and after such date.