Bill S4071-2013

Permits disclosure of arrest and prosecution records of applicants for employment in police departments and law enforcement agencies

Permits disclosure of arrest and prosecution records of applicants for employment by police departments and other law enforcement agencies.

Details

Actions

  • Jan 8, 2014: REFERRED TO CODES
  • Jan 8, 2014: returned to senate
  • Jan 8, 2014: died in assembly
  • Jun 13, 2013: referred to codes
  • Jun 13, 2013: DELIVERED TO ASSEMBLY
  • Jun 13, 2013: PASSED SENATE
  • Jun 12, 2013: ORDERED TO THIRD READING CAL.1336
  • Jun 12, 2013: COMMITTEE DISCHARGED AND COMMITTED TO RULES
  • Jun 5, 2013: REPORTED AND COMMITTED TO FINANCE
  • Mar 7, 2013: REFERRED TO CODES

Votes

VOTE: COMMITTEE VOTE: - Codes - Jun 5, 2013
Ayes (11): Nozzolio, Boyle, DeFrancisco, Flanagan, Fuschillo, Gallivan, Golden, Lanza, O'Mara, Espaillat, O'Brien
Ayes W/R (3): Squadron, Hoylman, Krueger
Nays (1): Perkins

Memo

BILL NUMBER:S4071

TITLE OF BILL: An act to amend the criminal procedure law and the executive law, in relation to disclosure of arrest and prosecution records of applicants for employment by police departments and other law enforcement agencies

PURPOSE:

To allow the disclosure of criminal histories of all applicants for employment by police departments and other law enforcement agencies.

SUMMARY OF PROVISIONS:

Section 1 of the bill amends Criminal Procedure Law section 160.50(1)(d) to provide that criminal records sealed pursuant to this section shall be made available to a police department or law enforcement agency when an employment application has been made by the person accused of criminal activity. Any records obtained must also be provided to the applicant and the applicant shall be afforded the opportunity to provide an explanation.

Section 2 of the bill amends Criminal Procedure Law section 160.55(1)(d) to provide that criminal records sealed pursuant to this section shall be made available to a police department or law enforcement agency when an employment application has been made by the person accused of criminal activity. Any records obtained must also be provided to the applicant and the applicant shall be afforded the opportunity to provide an explanation.

Section 3 of the bill amends Executive Law section 296(16), which is the Human Rights Law, to provide that it shall not be an unlawful discriminatory practice to for a police department or law enforcement inquire about a criminal accusation or arrest of an applicant that is not followed by a youthful offender adjudication or sealed pursuant to Criminal procedure Law sections 160.55 or 160.58.

Section 4 of the bill amends Criminal Procedure Law section 160.58 regarding sealed convictions for marihuana and certain controlled substances to allow disclosure to police departments and law enforcement agencies in relation to an application for employment.

Section 5 of the bill provides that this act shall take effect on the ninetieth day after it shall have become a law.

EXISTING LAW:

Currently, both amended sections of the Criminal Procedure Law provide that sealed criminal records regarding a person may be made available to certain entities in certain specified situations. These situations include disclosure to the prospective employer of a police officer or peace officer in relation to an application for employment as a police officer or peace officer and to the State or local officer responsible for the issuance of licenses to possess a gun. Currently, the Human Rights Law provides that it is not an unlawful discriminatory practice for an agency, in connection with an application for employment as a

police officer or peace officer, to inquire about certain arrests or criminal accusations concerning the applicant.

JUSTIFICATION:

It is vitally important that police departments and other law enforcement agencies have the ability to conduct thorough background checks on potential employees. Current law provides an ability to do so when the applicant is a potential police officer or peace officer. Pursuant to Criminal Procedure Law section 160.50(d), police departments and law enforcement agencies may receive criminal histories that include cases sealed pursuant to such sections that terminated in favor of the accused.

However, under current law, police departments and law enforcement agencies may not obtain disclosure of records that were sealed under the provisions of Criminal Procedure Law section 160.55 for applicants seeking employment by the police department or law enforcement agency. This anomalous result, where law enforcement is authorized to obtain records of sealed acquittals but not sealed convictions, must be corrected.

Further, in neither case are the records of potential civilian employees of law enforcement agencies made available. Employment by a police agency is by definition sensitive in nature. Civilian employees may have access to highly confidential information and, may occupy positions of trust, with the availability to take enforcement action or make decisions affecting agency operations and policy. Police agencies are responsible for both conventional crime fighting and counter terrorism efforts, and it is vitally important that these agencies obtain as much information about potential employees as is possible before a law enforcement agency entrusts them with responsibility for public safety.

LEGISLATIVE HISTORY:

2012: S.1423 - Referred to Codes 2011: S.1423 - Passed Senate 2009 - 2010: S.2101 - Referred to Codes 2007 - 2008: S.4268-A - Passed Senate both years 2006: S.7927 - Passed Senate

FISCAL IMPLICATIONS:

None

EFFECTIVE DATE:

This act shall take effect on the ninetieth day after it shall have become a law.


Text

STATE OF NEW YORK ________________________________________________________________________ 4071 2013-2014 Regular Sessions IN SENATE March 7, 2013 ___________
Introduced by Sen. GOLDEN -- 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 disclosure of arrest and prosecution records of applicants for employment by police departments and other law enforcement agen- cies THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Paragraph (d) of subdivision 1 of section 160.50 of the criminal procedure law, as amended by section 73 of subpart B of part C of chapter 62 of the laws of 2011, is amended to read as follows: (d) such records shall be made available to the person accused or to such person's designated agent, and shall be made available to (i) a prosecutor in any proceeding in which the accused has moved for an order pursuant to section 170.56 or 210.46 of this chapter, or (ii) a law enforcement agency upon ex parte motion in any superior court, if such agency demonstrates to the satisfaction of the court that justice requires that such records be made available to it, or (iii) any state or local officer or agency with responsibility for the issuance of licenses to possess guns, when the accused has made application for such a license, or (iv) the New York state department of corrections and community supervision when the accused is on parole supervision as a result of conditional release or a parole release granted by the New York state board of parole, and the arrest which is the subject of the inquiry is one which occurred while the accused was under such super- vision or (v) 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 applica- tion for employment 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 thereto, or (vi) A POLICE DEPARTMENT OR OTHER LAW ENFORCEMENT AGENCY, IN RELATION TO AN APPLICATION BY THE PERSON ACCUSED FOR EMPLOYMENT BY SUCH AGENCY OR DEPARTMENT; PROVIDED, HOWEVER, THAT EVERY SUCH PERSON SHALL BE FURNISHED WITH A COPY OF ALL RECORDS OBTAINED UNDER THIS PARAGRAPH AND AFFORDED AN OPPORTUNITY TO MAKE AN EXPLANATION THERETO, OR (VII) the probation department responsible for supervision of the accused when the arrest which is the subject of the inquiry is one which occurred while the accused was under such supervision; and S 2. Paragraph (d) of subdivision 1 of section 160.55 of the criminal procedure law, as amended by section 74 of subpart B of part C of chap- ter 62 of the laws of 2011, is amended to read as follows: (d) the records referred to in paragraph (c) of this subdivision shall be made available to the person accused or to such person's designated agent, and shall be made available to (i) a prosecutor in any proceeding in which the accused has moved for an order pursuant to section 170.56 or 210.46 of this chapter, or (ii) a law enforcement agency upon ex parte motion in any superior court, if such agency demonstrates to the satisfaction of the court that justice requires that such records be made available to it, or (iii) any state or local officer or agency with responsibility for the issuance of licenses to possess guns, when the accused has made application for such a license, or (iv) the New York state department of corrections and community supervision when the accused is under parole supervision as a result of conditional release or parole release granted by the New York state board of parole and the arrest which is the subject of the inquiry is one which occurred while the accused was under such supervision, or (v) the probation department responsible for supervision of the accused when the arrest which is the subject of the inquiry is one which occurred while the accused was under such supervision, or (vi) a police agency, probation department, sher- iff's office, district attorney's office, department of correction of any municipality and parole department, for law enforcement purposes, upon arrest in instances in which the individual stands convicted of harassment in the second degree, as defined in section 240.26 of the penal law, committed against a member of the same family or household as the defendant, as defined in subdivision one of section 530.11 of this chapter, and determined pursuant to subdivision eight-a of section 170.10 of this title; OR (VII) A POLICE DEPARTMENT OR OTHER LAW ENFORCE- MENT AGENCY, IN RELATION TO AN APPLICATION BY THE PERSON ACCUSED FOR EMPLOYMENT BY SUCH AGENCY OR DEPARTMENT; PROVIDED, HOWEVER, THAT EVERY SUCH PERSON SHALL BE FURNISHED WITH A COPY OF ALL RECORDS OBTAINED UNDER THIS PARAGRAPH AND AFFORDED AN OPPORTUNITY TO MAKE AN EXPLANATION THERE- TO; and 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, in connection with the licensing, employ- ment 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 proce- dure law, or by a conviction which is sealed pursuant to section 160.58 of the criminal procedure law. The provisions of this subdivision shall not apply to the licensing activities of governmental bodies in relation to the regulation 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 OR IN RELATION TO AN APPLICATION FOR EMPLOYMENT FOR ANY POSITION IN A POLICE DEPART- MENT OR OTHER LAW ENFORCEMENT AGENCY; 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. S 4. Paragraphs (c) and (d) of subdivision 6 of section 160.58 of the criminal procedure law, as added by section 3 of part AAA of chapter 56 of the laws of 2009, are amended and a new paragraph (e) is added to read as follows: (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[.]; AND (E) ANY POLICE DEPARTMENT OR LAW ENFORCEMENT AGENCY, IN RELATION TO AN APPLICATION FOR EMPLOYMENT BY SUCH POLICE DEPARTMENT OR LAW ENFORCEMENT AGENCY; PROVIDED, HOWEVER, THAT EVERY APPLICANT SHALL BE FURNISHED WITH A COPY OF ALL RECORDS OBTAINED UNDER THIS PARAGRAPH AND AFFORDED AN OPPORTUNITY TO MAKE AN EXPLANATION THERETO. S 5. This act shall take effect on the ninetieth day after it shall have become a law.

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