Bill S4471-2011

Relates to unsealing criminal records

Relates to unsealing criminal records in criminal actions terminated in favor of the accused or by conviction for a noncriminal offense; allows disclosure of such records to a party in a criminal proceeding if, on notice to the adverse party and the subject of the records, the moving party demonstrates that justice so requires.

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  • Jan 4, 2012: REFERRED TO CODES
  • Apr 6, 2011: REFERRED TO CODES

Memo

BILL NUMBER:S4471

TITLE OF BILL: An act to amend the criminal procedure law, in relation to unsealing criminal records

This is one in a series of measures being introduced at the request of the Chief Administrative Judge upon the recommendation of her Advisory Committee on Criminal Law and Procedure.

This measure would amend the Criminal Procedure Law to authorize a court to unseal records, where justice requires it, on notice both to the adverse party and the subject of the records.

In 2003, political demonstrators in New York City handcuffed themselves in a human chain across Fifth Avenue, creating a huge traffic disruption. The demonstrators were arrested and later found guilty after a jury trial of obstructing governmental administration in the second degree and disorderly conduct. In advance of the sentencing, the trial court asked the People to provide the prior criminal records of the defendants, and, toward that end, the prosecutor asked the court to unseal various records that contained information regarding the petitioner's previous political demonstration arrests. The records the court unsealed related to violation convictions and procedural dismissals; none were for acquittals or dismissals on the merits. The defendants brought an Article 78 proceeding to challenge the court's unsealing order, and, on appeal from the Appellate Division, the Court of Appeals vacated the unsealing order (see Katherine B. v Cataldo, 5 NY3d 196 [2005]). The Court held that CPL 160.50 was intended to serve as a broad sealing provision subject only to a few statutory exceptions. In a narrow and somewhat cramped reading of those exceptions, the Court found no provision which would allow a prosecutor access to sealed records after the commencement of a proceeding. The closest CPL Article 160 comes is in the provision for making sealed records available to "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" (CPL 160.50(1)(d)(ii); CPL 160.55(1)(d)(ii)). The Court, however, limited this exception to the unsealing of records for "investigatory purposes," and suggested that the "investigatory purposes" exception ceases upon commencement of the criminal proceeding. The Court thus limited prosecutorial access to sealed records after commencement to the "singular circumstance" where a defendant requests an ACD in low level marijuana cases (Katherine B., 5 NY3d at 205; CPL 160.50(1)(d)(i)).

This Office believes that Katherine B. has inappropriately narrowed the situations where the Court may unseal records. There are numerous legitimate times when a court should have the authority to unseal a record in the interest of justice. However, recognizing that an ex parte application to unseal may lead to unwarranted unsealing orders, this measure provides that an unsealing order must be made on notice

to both the adversary and the subject of the records. This will insure that the court is fully briefed on all the issues surrounding the application and will, in contested cases, provide a record that can be adequately reviewed by an appellate court.

This measure, which would have no meaningful fiscal impact on the State, would take effect on the first day of November next succeeding the date on which it shall have become a law.

2011 LEGISLATIVE HISTORY: None. New proposal.


Text

STATE OF NEW YORK ________________________________________________________________________ 4471 2011-2012 Regular Sessions IN SENATE April 6, 2011 ___________
Introduced by Sen. NOZZOLIO -- (at request of the Office of Court Admin- istration) -- read twice and ordered printed, and when printed to be committed to the Committee on Codes AN ACT to amend the criminal procedure law, in relation to unsealing criminal records 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 chapter 169 of the laws of 1994, 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 division of parole 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 supervision 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 chap- ter, in relation to an application 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) 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 (VII) A PARTY IN A CRIMINAL PROCEEDING IF, NO NOTICE TO THE ADVERSE PARTY AND THE SUBJECT OF THE RECORDS, THE MOVING PARTY DEMONSTRATES TO THE SATISFACTION OF THE COURT THAT JUSTICE REQUIRES THAT THE RECORDS BE MADE AVAILABLE TO SUCH PARTY IN CONNECTION WITH THE CRIMINAL PROCEEDING; and S 2. Paragraph (d) of subdivision 1 of section 160.55 of the criminal procedure law, as amended by chapter 476 of the laws of 2009, 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 division of parole 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 super- vision, 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, sheriff's office, district attor- ney'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 pursu- ant to subdivision eight-a of section 170.10 of this title, OR (VII) A PARTY IN A CRIMINAL PROCEEDING IF, ON NOTICE TO THE ADVERSE PARTY AND THE SUBJECT OF THE RECORDS, THE MOVING PARTY DEMONSTRATES TO THE SATIS- FACTION OF THE COURT THAT JUSTICE REQUIRES THAT THE RECORDS BE MADE AVAILABLE TO SUCH PARTY IN CONNECTION WITH THE CRIMINAL PROCEEDING; and S 3. This act shall take effect on the first of November next succeed- ing the date on which it shall have become a law.

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