Provides that when the division of criminal justice services conducts a search of it's criminal history records and returns a report thereon, all references to undisposed cases shall be excluded.
TITLE OF BILL: An act to amend the executive law and the judiciary law, in relation to undisposed cases
PURPOSE: This bill will require DCJS and DCA to refrain from including undisposed case information on criminal history record reports except for law enforcement and other specified purposes.
SUMMARY OF PROVISIONS:
Section 1 of the bill adds a new section 845-c to the Executive Law to prohibit DCJS from including undisposed case information on criminal history record reports (i.e., rapsheets) where the report is produced for a non-law enforcement or non-criminal justice purpose. The bill defines "undisposed case" as a criminal action or proceeding or an arrest incident that appears on an individual's criminal history record for which no conviction, sentence or other final disposition (other than an apparently unexecuted bench warrant) appears and with respect to which no entry has been made on the DCJS record for a period of at least five years. The prohibition also would not apply to records produced by DCJS solely for bona fide research or internal record keeping purposes.
Section 2 of the bill establishes a corresponding requirement for DCA. It adds a new paragraph (s) to subdivision two of section 212 of the Judiciary Law to require DCA to refrain from reporting undisposed cases on criminal history reports it produces except where the report is prepared for internal record keeping or bona fide research purposes.
Section 3 of the bill provides that the act shall take effect 180 days after it shall have become a law, and further provides that, prior to such effective date, DCJS in consultation with DCA shall undertake measures to update its criminal history records with respect to cases that have no final disposition reported.
EXISTING LAW: DCJS is the state repository for criminal history records and is permitted or required under law in certain circumstances to search its records and produce a report on an individual's criminal history record (i.e., a "rapsheet"). Similarly, DCA is authorized under law to search its criminal court case records and produce a criminal history record report on the individual whose record is searched. Under Criminal Procedure Law § 160.50 records pertaining to criminal actions that have been terminated in favor of the accused are to be sealed and, subject to certain exceptions, are not to be released by DCJS or DCA.
These include cases that, following the transmission of arrest fingerprints to DCJS, prosecutors elect not to prosecute (CPL 160.5(3) (i)) and arrests that the police elect not to pursue (CPL 160.50(3)(j)).
JUSTIFICATION: Although the law provides for the sealing of certain records, in some cases, administrative failures occur, leaving information about cases that have ended in a person's favor, or have
been filed in court but never brought to any final disposition, unsealed on the person's permanent criminal history record maintained by DCJS. Attempts to correct these errors and eliminate undisposed case references often prove unsuccessful because no information about the cases can be found, either because the parties involved have destroyed their records, because no records have been generated due to the preliminary nature of the case or because the case in question has been deemed dismissed by another court as a result of action taken in an entirely separate case. Examples of this include cases where preliminary arrest information but no other information, not even a docket number, appears on the criminal history record. The absence of a docket number on a rap sheet where an arrest is indicated may signify that, after the submission of arrest fingerprints to DCJS, the prosecutor has elected not to prosecute the case, or the police have elected not to pursue the arrest. Other examples include cases where a court docket number appears but no further action on the case is reflected. In cases actively moving through the court system, actions taken in the case arraignments, transfers, removals, indictments, bench warrants - usually appear on the person's criminal history record. When an arrest incident appears, or a case has been docketed but no action has been taken for a period of five years, and no warrant has been issued, the case should likely have either been dismissed (as statutory speedy trial requirements would dictate that trial or some other action take place within that time) or otherwise disposed of.
In an age where the criminal history background check is almost universal, New York's sealing laws act as a guard against illegal workplace discrimination by preventing the inappropriate disclosure or use by employers or licensing agencies of records of, arrest that resulted either in a violation (non-criminal) conviction or were terminated in a person's favor. However, the sealing laws are only effective if the various entities in the criminal justice system effectively communicate with each other.
According to the Criminal Procedural Law, the arresting agency, the district attorney, the cleric of the court, and DCA are all responsible for reporting to DCJS that certain criminal actions ended in a person's favor. Administrative failures do occur, however, and sometimes these agencies fail to update DCJS as required. Since there is no current system for ensuring that agencies update DCJS, many records at DCJS remain inaccurate for an extended period of time without anyone's knowledge. As DCJS cannot currently act to correct or complete the records without information from the relevant agency, these inaccuracies, in effect, become permanent once enough time has passed for the criminal justice agency involved to be able to destroy the original record according to its own record retention schedule. In situations where the case has been terminated in a person's favor, the original record may be destroyed after only six years by the courts and DCA. Other agencies, including the police and the District Attorneys' Offices, have their own record retention schedules. As a result, people with permanent inaccuracies on their rap sheet are in limbo: they cannot contest inaccurate or incomplete information on their rap sheet or criminal history record if the necessary correctives (the original records) have been purged or are otherwise unavailable or incomplete. Such people also lose the protections they may be entitled to under New York State sealing laws and the Federal
and New York State Fair Credit Reporting Acts. The failure in communication among the various criminal justice agencies has caused countless individuals to lose employment, benefits and housing opportunities.
To remedy the problem, this measure would prohibit DCJS and DCA from including "undisposed case" information, as defined by the bill, in any report of a criminal history search conducted by the agency except where the report is produced by DCJS for a "qualified agency" (or a federal or state law enforcement agency) for a criminal justice purpose, or by DCJS or DCA for a bona fide research or internal recordkeeping purpose. In so doing, the bill will effectively address the administrative failures described above and will help many New Yorkers lead productive, law-abiding lives.
LEGISLATIVE HISTORY: A.8222 was reported and referred to rules in 2009 and was referred to codes in 2010. New bill in the Senate. 2011-2012: S.5357 - Died in Committee
FISCAL IMPLICATIONS: To be determined.
EFFECTIVE DATE: 180 days after it shall have become a law.
STATE OF NEW YORK ________________________________________________________________________ 1395 2013-2014 Regular Sessions IN SENATE (PREFILED) January 9, 2013 ___________Introduced by Sens. MONTGOMERY, HASSELL-THOMPSON -- read twice and ordered printed, and when printed to be committed to the Committee on Finance AN ACT to amend the executive law and the judiciary law, in relation to undisposed cases THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. The executive law is amended by adding a new section 845-c to read as follows: S 845-C. CRIMINAL HISTORY RECORD SEARCHES; UNDISPOSED CASES. 1. WHEN, PURSUANT TO STATUTE OR THE REGULATIONS OF THE DIVISION, THE DIVISION CONDUCTS A SEARCH OF ITS CRIMINAL HISTORY RECORDS AND RETURNS A REPORT THEREON, ALL REFERENCES TO UNDISPOSED CASES CONTAINED IN SUCH CRIMINAL HISTORY RECORD SHALL BE EXCLUDED FROM SUCH REPORT. 2. FOR PURPOSES OF THIS SECTION, "UNDISPOSED CASE" SHALL MEAN A CRIMI- NAL ACTION OR PROCEEDING, OR AN ARREST INCIDENT, IDENTIFIED IN THE DIVI- SION'S CRIMINAL HISTORY RECORDS FOR WHICH NO CONVICTION, IMPOSITION OF SENTENCE, ORDER OF REMOVAL OR OTHER FINAL DISPOSITION, OTHER THAN THE ISSUANCE OF AN APPARENTLY UNEXECUTED WARRANT, HAS BEEN RECORDED AND WITH RESPECT TO WHICH NO ENTRY HAS BEEN MADE IN THE DIVISION'S CRIMINAL HISTORY RECORDS FOR A PERIOD OF AT LEAST FIVE YEARS PRECEDING THE ISSU- ANCE OF SUCH REPORT. 3. THE PROVISIONS OF SUBDIVISION ONE OF THIS SECTION SHALL NOT APPLY TO CRIMINAL HISTORY RECORD INFORMATION (A) PROVIDED BY THE DIVISION TO QUALIFIED AGENCIES PURSUANT TO SUBDIVISION SIX OF SECTION EIGHT HUNDRED THIRTY-SEVEN OF THIS ARTICLE, OR TO FEDERAL OR STATE LAW ENFORCEMENT AGENCIES, FOR CRIMINAL JUSTICE PURPOSES; (B) PREPARED SOLELY FOR A BONA FIDE RESEARCH PURPOSE; OR (C) PREPARED FOR THE INTERNAL RECORDKEEPING OR CASE MANAGEMENT PURPOSES OF THE DIVISION.EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD04010-01-3 S. 1395 2
4. NOTHING CONTAINED IN THIS SECTION SHALL BE DEEMED TO PERMIT OR REQUIRE THE RELEASE, DISCLOSURE OR OTHER DISSEMINATION BY THE DIVISION OF CRIMINAL HISTORY RECORD INFORMATION THAT HAS BEEN SEALED IN ACCORD- ANCE WITH LAW. S 2. Subdivision 2 of section 212 of the judiciary law is amended by adding a new paragraph (s) to read as follows: (S) TAKE SUCH ACTIONS AND ADOPT SUCH MEASURES AS MAY BE NECESSARY TO ENSURE THAT NO WRITTEN OR ELECTRONIC REPORT OF A CRIMINAL HISTORY RECORD SEARCH CONDUCTED BY THE OFFICE OF COURT ADMINISTRATION, OTHER THAN A SEARCH CONDUCTED SOLELY FOR THE INTERNAL RECORDKEEPING OR CASE MANAGE- MENT PURPOSES OF THE JUDICIARY OR FOR A BONA FIDE RESEARCH PURPOSE, CONTAINS INFORMATION RELATING TO AN UNDISPOSED CASE. FOR PURPOSES OF THIS PARAGRAPH, "UNDISPOSED CASE" SHALL MEAN A CRIMINAL ACTION OR PROCEEDING, OR AN ARREST INCIDENT, APPEARING IN THE CRIMINAL HISTORY RECORDS OF THE OFFICE OF COURT ADMINISTRATION FOR WHICH NO CONVICTION, IMPOSITION OF SENTENCE, ORDER OF REMOVAL OR OTHER FINAL DISPOSITION, OTHER THAN THE ISSUANCE OF AN APPARENTLY UNEXECUTED WARRANT, HAS BEEN RECORDED AND WITH RESPECT TO WHICH NO ENTRY HAS BEEN MADE IN SUCH RECORDS FOR A PERIOD OF AT LEAST FIVE YEARS PRECEDING THE ISSUANCE OF SUCH REPORT. NOTHING CONTAINED IN THIS PARAGRAPH SHALL BE DEEMED TO PERMIT OR REQUIRE THE RELEASE, DISCLOSURE OR OTHER DISSEMINATION BY THE OFFICE OF COURT ADMINISTRATION OF CRIMINAL HISTORY RECORD INFORMATION THAT HAS BEEN SEALED IN ACCORDANCE WITH LAW. S 3. This act shall take effect on the one hundred eightieth day after it shall have become a law and shall apply to searches of criminal history records conducted on or after such date; provided, however, that prior to such effective date, the division of criminal justice services, in consultation with the state administrator of the unified court system as well as any other public or private agency, shall undertake such measures as may be necessary and appropriate to update its criminal history records with respect to criminal cases and arrest incidents for which no final disposition has been reported.