Bill S5169-2015

Relates to the sealing of certain criminal records

Provides for the sealing of certain criminal records upon application and qualification; makes provisions for unsealing and for availability of such records to various agencies.

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  • May 6, 2015: REFERRED TO CRIME VICTIMS, CRIME AND CORRECTION

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BILL NUMBER:S5169

TITLE OF BILL: An act to amend the correction law, the criminal procedure law and the executive law, in relation to the sealing of records following conviction for certain offenses

This measure is being introduced at the request of the Chief Judge of the State.

This measure would amend the Criminal Procedure Law by adding a new section 160.65 to provide a second chance to certain persons convicted of crime in the past by allowing them to apply to a court for an order sealing their criminal records. Next the measure would amend section 160.55(1) to clarify that sealing records upon a conviction of a petty offense is authorized in all cases, regardless of the top count of the accusatory instrument by which an individual was originally charged. The measure also includes an amendment to section 296(16) of the Executive Law (part of the State's Human Rights Law) to make it an unlawful discriminatory practice to inquire about a person's sealed criminal convictions when such inquiry is in the context of that person's application for licensing, employment or the provision of credit or insurance; and the addition of two Unconsolidated Law provisions, one deeming an inquiry as to a person's past criminal convictions in the context of such person's application for licensing, employment or the provision of credit or insurance to be an inquiry exclusively as to those convictions that have not been sealed, however the inquiry may actually be worded, with the other assuring all individuals an absolute right publicly to speak or write about any information they may have concerning another's past conviction(s), whether sealed or not. Finally, the measure would amend section 750 of the Correction Law to clarify that the provisions of Article 23-A, which govern the licensure and employment of persons previously convicted of criminal offenses, are - with exceptions - not to be applied where the conviction has been sealed under Article 160 of the Criminal Procedure Law.

I. Particulars of the proposal.

The principal provisions of this measure are two-fold. First, it would add to the Criminal Procedure Law a statute, new section 160.65, expressly authorizing certain individuals convicted of certain criminal conduct in the past to apply to a court for an order sealing the record of that crime. Second, it would make it an unlawful discriminatory practice under the State's Human Rights Law, in most every day circumstances, to inquire about past criminal convictions that have thereby been sealed.

Summary of proposed section 160.65:

1. What is the purpose and effect of a sealing petition under section 160.65? The purpose of such a petition is to give certain past criminal offenders, i.e., nonviolent individuals whose criminal conduct was so far in the past as to make them statistically no more likely to commit future crime than any other person, a means by which to have their criminal record sealed from public view and thereby to relieve them of some of the economic and social stigma that generally attaches to criminal offenders even after their debts to the community

have been paid. Where such a petition is granted, all official records and papers relating to the arrest, prosecution and conviction of the individual benefitting therefrom must be sealed by the sentencing court and the Division of Criminal Justice Services and, subject to several exceptions, kept from public availability. These exceptions make otherwise sealed records available to: the petitioner or his or her agent; courts and various State and local public offices defined as "qualified agencies" under section 835 of the Executive Law acting in the scope of their official duties; public offices with authority to issue gun licenses; prospective employers of police and peace officers; the Justice Center for the Protection of People with Special Needs and officers and agencies over which the Center exercises oversight; and any other public or private officers or institutions employing persons who thereby have regular contact with children or other vulnerable individuals as may be designated by the Chief Administrator of the Courts.

Where a section 160.65 petition is granted, it will not provide the petitioner with relief from any forfeiture or disability or other bar imposed by reason of his or her conviction for the offense the records of which are to be sealed - although the statute expressly permits a person filing a sealing petition simultaneously to submit to the court an application for relief from disabilities under Article 23 of the Correction Law. Nor will the grant of such a petition bar future use of such conviction in any future sentencing proceeding or as an element of an offense in any future criminal proceeding or regulatory action against petitioner.

2. Who may file a sealing petition and when? Any person who has been convicted of a single felony with no other criminal record OR of one or two misdemeanors with no other criminal record may file a petition provided:

(i) if he or she was convicted of a felony, the conviction must have occurred at least ten years earlier and may not have been for a violent felony offense, an offense for which life imprisonment is an authorized sentence, a sex offense, an offense involving official misconduct or bribery by a public servant, an offense under section 1192 of the Vehicle and Traffic Law involving driving while under the influence of alcohol or drugs or an offense for which violation of section 1192 is an essential element; or

(ii) if he or she was convicted of one or two misdemeanors and no felonies, such conviction(s) must have occurred at least seven years earlier and may not have been for a sex offense, an offense involving official misconduct or bribery by a public servant or an offense under section 1192 of the Vehicle and Traffic Law involving driving while under the influence of alcohol or drugs.

Notwithstanding these conditions, no person may file a petition unless he or she has completed whatever sentence or sentences were imposed on account of his or her conviction(s), including any period of imprisonment, the completion of any period of parole, probation, conditional release or post-release supervision, fulfillment of any restitution obligation, completion of any period of community service and payment of all fines and surcharges; and any period of incarceration served by that person shall toll the ten-year/seven-year

waiting periods. Nor may any person file a petition while a charged criminal offense is pending against him or her.

2. How often may a section 160.65 petition be filed? Where a person files such a petition and it is denied, such person must wait at least two years before he or she may file another petition. Once a section 160.65 petition is granted, the person who filed it may never again file such a petition. Thus, even if he or she later is convicted of another crime and would otherwise be eligible to file a petition to seal the records of that subsequent conviction, he or she will be barred from doing so.

3. How and where is a section 160.65 petition filed? Where such a petition is being filed for an order sealing the record of a past conviction for a felony, the petition must be filed in the superior court in which the conviction was entered. Where the petition is being filed for an order sealing the record(s) of one or two past convictions for a misdemeanor, the petition must be filed in a superior court of the county in which at least one of such convictions was entered.

Any section 160.65 petition must be accompanied by a $95 filing fee.

4. What is the process a superior court must follow in determining a section 160.65 petition? Upon receipt of such a petition, the court must request from DCJS and the FBI the petitioner's updated criminal history record. If the petitioner meets the criteria requisite to the filing of a petition, and the conviction records to be sealed relate solely to misdemeanors, the court must grant the petition and order the records sealed. If, instead, the conviction record to be sealed relates to a felony, the court has the discretion to grant or deny the petition. Before exercising that discretion, the superior court must notify the local district attorney of the petition, and give him or her between 30 and 60 days to comment on the petition; and the district attorney must relay notice of the petition to any victim of the felony. The court entertaining the petition may then hold a hearing to aid its determination, which must follow consideration of all relevant factors including, but not limited to (i) the circumstances/seriousness of the offense, (ii) the petitioner's character, his or her criminal history and efforts at rehabilitation, (iii) the impact of sealing upon petitioner's rehabilitation and successful reentry into the community, and (iv) any statements made by any victim of petitioner's offense.

Every determination of a section 160.65 petition must be in writing and, where the determination results from an exercise of the superior court's discretion, the written determination must set forth the reasons therefor.

5. Can the records of a conviction sealed upon a section 160.65 petition be unsealed? Yes. They must immediately be unsealed where the person convicted is arraigned on the charge of a subsequent felony offense; and unsealed following conviction of a subsequent misdemeanor offense. Under both circumstances, however, should the prosecution ultimately result in termination in favor of the accused, the unsealed records must be resealed.

Summary of proposed amendment to the Human Rights Law (Executive Law 296(16))

In addition to authorizing the sealing of past criminal convictions, this measure amends the Human Rights Law to make it an unlawful discriminatory practice under terms of that Law, in connection with an individual's prospective licensing or employment, or application for credit or insurance, to inquire about such individual's past criminal convictions that have been sealed; or to act adversely to such individual on account of such convictions. In this respect, the measure merely expands current prohibitions against inquiry concerning and use of knowledge about past criminal prosecutions terminated in an individual's favor; about youthful offender adjudications; about past violation convictions; and about certain past drug convictions that have been sealed from public view. Critically, the measure expands present exceptions to the protections of section 296(16) for the benefit of officers and agencies over which the Justice Center for the Protection of People with Special Needs exercises oversight and officers, institutions, etc., employing persons who thereby have regular contact with children or other vulnerable persons as designated by the Chief Administrator of the Courts. Thus employers whose employees have regular contact with vulnerable populations will not be barred from inquiring about a job applicant's past criminal history, including any convictions that may have been sealed pursuant to the other provisions of this measure.

There are three other elements to this measure. First, the measure assures all individuals an absolute right publicly to speak or write about any information they may have concerning another's past conviction(s), whether sealed or not. Thus, sealing, as envisioned by this measure, does not threaten public discourse, whether through the media or otherwise, as to a person's criminal history where that history is public knowledge. The only obstacle imposed by this measure is to inquiry as to that criminal history by a prospective employer or someone in position to grant a license or credit or some other form of benefit, and their use of that history as a factor in determining whether to provide a job or other benefit.

Second, the measure not only bars use of sealed criminal history information, making it an unlawful discriminatory practice to inquire about the past criminal activity to which it relates, it spares a person whose past criminal conviction has been sealed from ever being placed in the position of having to lie when improperly questioned about a sealed conviction. This measure does sanction an answer that otherwise would be a lie (i.e., "no, I haven't been convicted"), but, instead, by statutorily deeming any question about past criminal offenses, however it may be phrased, to be: "have you ever been convicted of an offense where the records thereof have not been sealed?". Thus, this measure should make it impossible to ask a question to which a past offender, whose records have been sealed, should ever have to lie.

Finally, this measure would amend CPL 160.55(1) to clarify that the terms of that provision, addressed to the sealing of records upon a conviction of a petty offense, apply in all cases, regardless of the top count of the accusatory instrument by which an individual was originally charged. This will counter the practice that has evolved,

contrary to the seeming intent of the current statutory language, whereby the sealing benefit accorded by the section has only been extended to cases where the top count charged in the original accusatory instrument was a misdemeanor or felony, but not where the top count was a petty offense.

II. Why this proposal.

The Penal Law sets forth the punishment to be assessed where a person commits a particular criminal offense. This punishment might include a fine, conditional discharge, probation or imprisonment. Other laws set forth further punishments in the case of conviction for certain offenses such as loss of voting privileges or the ability to sit on a jury. These punishments are finite, in the sense that at some point they reach an end: fines are paid, probation is completed, and, in all but the comparatively rare instance of certain life sentences, a prison term is served. A certificate of relief from civil disabilities can be procured. We appropriately describe the person who satisfies his or her sentence as having paid his or her.debt to society. But that's a technical observation. The real question is when, if ever, do we spare that person of the public stigma that also attached to his or her criminal conviction and punishment?

Some would say, "you can't change history." That once a person is convicted of a crime, and is punished therefor, it's delusional, if not outright Orwellian, to change the public record so that those facts can be denied. But this ignores the fact that it is human nature to continue to look suspiciously at a convicted criminal no matter how long ago his or her offense, no matter that he or she did his or her penance, no matter that he or she may have led an exemplary life ever after; and that this suspicion has real world consequences in the form of hiring and other economic, housing, social and civil prejudice. Accepting this fact of human nature, we must ask whether we really want to make of the convicted offender a permanent pariah in our midst? Is it really the case that we want his or her punishment to be endless? Is it really in the community's best interests to keep him or her on the margin, to make it difficult for him or her to get a good job so that he or she can achieve personal stability, stay clean, support a family and contribute to community welfare?

This measure is prompted by the belief that, consistent with community safety and consistent with responsible attitudes toward the goals of penology, it is essential that we give greater meaning to the idea that a person with a prior criminal history can reach a point where he or she truly has paid his or her debt to society. No humane society should convert all past offenders into a permanent underclass: to do so ignores any sense that some proportionality between crime and punishment must be respected, and, more importantly, it harms the larger community because it can deprive that community of the contributions a rehabilitated past offender can make and because, by making it more difficult for past offenders to integrate into the community, it often generates even greater costs in terms of encouraging recidivism and greater and more costly demands upon local social welfare institutions.

Studies show that the longer a convicted person goes without committing a new offense, the less likely the person will ever commit

a new offense. Where an individual leads a law-abiding life for many years after a conviction, the risk of that person committing a new crime reverts to the same level as anyone who has always led a law-abiding life.{1} Accordingly, this measure reflects a very delicate balance of considerations. It purges the public record of a select class of past offenders - but only those people who are so far removed from their former criminal activity that it is statistically certain that they represent no greater threat to the community than other people who have no prior criminal record. Critically, it does this without compromising law enforcement's ability to use the record of an individual's past criminal activity, no matter how far in the past, in assessing and prosecuting future criminal activity. Nor does it act to provide relief from civil disabilities, or bar access to past criminal activity for employers who would hire individuals for sensitive jobs involving vulnerable populations (e.g., schools, daycare centers and the like).

This measure seeks no more than to aid a limited class of former misdemeanants and non-violent felons to get on with their lives by closing off public view of their criminal histories when they seek employment, credit and the like. It does this not by authorizing individuals publicly to disavow prior criminal activity when to do so would be untrue - indeed, in this respect, it is unlike some past legislative proposals that expressly authorized exactly that - but, instead, by limiting general public access to criminal history records and by barring prospective employers from discriminating against those individuals on account of past criminal activity that has been sealed. Critically, the proposal imposes no limitation on the press or anyone else in the community in terms of reporting about or discussing an individual's known criminal history.

This measure would have a positive impact on the public treasury, reflecting the revenue it would generate from each $95 petition fee plus all outstanding fine and surcharge money that might be paid by individuals who, wishing to qualify for the sealing relief this measure would afford, must satisfy all outstanding financial obligations that were part of their sentences before they can do so. The measure would take effect 180 days after it shall have become law and apply to convictions occurring before, on or after such effective date.

2014 Legislative History:

Senate 7926 (Senator Nozzolio) (referred to Rules) Assembly 9607 (M. of A. Lentol) (referred to Codes)

{1} Redemption' in an Era of Widespread Criminal Background Checks, Alfred Blumstein and Kiminori Nakamura, published by the National Institute of Justice, http://www.nii.gov/journals/263/Paees/redemption.aspx


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STATE OF NEW YORK ________________________________________________________________________ 5169 2015-2016 Regular Sessions IN SENATE May 6, 2015 ___________
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 Crime Victims, Crime and Correction AN ACT to amend the correction law, the criminal procedure law and the executive law, in relation to the sealing of records following conviction for certain offenses THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Section 750 of the correction law is amended by adding a new subdivision 6 to read as follows: (6) "CONVICTION OF ONE OR MORE CRIMINAL OFFENSES" MEANS A CONVICTION OR CONVICTIONS THAT HAS OR HAVE NOT BEEN SEALED PURSUANT TO ARTICLE ONE HUNDRED SIXTY OF THE CRIMINAL PROCEDURE LAW; AND A PERSON WHO HAS BEEN "CONVICTED OF ONE OR MORE CRIMINAL OFFENSES" MEANS A PERSON WHOSE CONVICTION OR CONVICTIONS HAS OR HAVE NOT BEEN SEALED PURSUANT TO SUCH ARTICLE. PROVIDED, HOWEVER, THIS SUBDIVISION SHALL NOT APPLY TO A CONVICTION WHERE USE OF SUCH CONVICTION FOR A PURPOSE SPECIFIED IN SUBDIVISION SIXTEEN OF SECTION TWO HUNDRED NINETY-SIX OF THE EXECUTIVE LAW WOULD NOT CONSTITUTE AN UNLAWFUL DISCRIMINATORY PRACTICE PURSUANT TO SUCH SUBDIVISION. S 2. The opening paragraph of subdivision 1 of section 160.55 of the criminal procedure law, as amended by chapter 169 of the laws of 1994, is amended to read as follows: Upon the termination of a criminal action or proceeding CHARGING AN OFFENSE against a person by the conviction of such person of a traffic infraction or a violation, other than a violation of loitering as described in paragraph (d) [or (e)] of subdivision one of section 160.10 of this [chapter] ARTICLE or the violation of operating a motor vehicle while ability impaired as described in subdivision one of section eleven hundred ninety-two of the vehicle and traffic law, unless the district attorney upon motion with not less than five days notice to such person
or his or her attorney demonstrates to the satisfaction of the court that the interests of justice require otherwise, or the court on its own motion with not less than five days notice to such person or his or her attorney determines that the interests of justice require otherwise and states the reasons for such determination on the record, the clerk of the court wherein such criminal action or proceeding was terminated shall immediately notify the commissioner of the division of criminal justice services and the heads of all appropriate police departments and other law enforcement agencies that the action has been terminated by such conviction. Upon receipt of notification of such termination: S 3. The criminal procedure law is amended by adding a new section 160.65 to read as follows: S 160.65 SEALING THE RECORD OF A CONVICTION. 1. PETITION FOR SEALING; WHEN PETITION MAY BE MADE. SUBJECT TO THE PROVISIONS OF THIS SECTION, A PERSON MAY PETITION A SUPERIOR COURT TO SEAL THE RECORD OF HIS OR HER CONVICTION FOR A PAST CRIMINAL OFFENSE OR OFFENSES PROVIDED HE OR SHE HAS BROUGHT NO SUCH PETITION IN THE PRECED- ING TWO YEARS AND: (A) SUCH PERSON HAS BEEN CONVICTED OF NOT MORE THAN ONE CRIME, AT LEAST TEN YEARS HAVE ELAPSED SINCE SUCH PERSON WAS CONVICTED OF THAT CRIME AND THAT CRIME WAS A FELONY OFFENSE OTHER THAN (I) A VIOLENT FELO- NY OFFENSE AS DEFINED IN SUBDIVISION ONE OF SECTION 70.02 OF THE PENAL LAW, (II) ANY OFFENSE FOR WHICH A TERM OF LIFE IMPRISONMENT IS AUTHOR- IZED, (III) AN OFFENSE SPECIFIED IN ARTICLE ONE HUNDRED THIRTY OR TWO HUNDRED SIXTY-THREE OF THE PENAL LAW, (IV) AN OFFENSE SPECIFIED IN ARTI- CLE ONE HUNDRED NINETY-FIVE OR TWO HUNDRED OF THE PENAL LAW WHERE THE PETITIONER WAS A PUBLIC SERVANT AT THE TIME OF THE OFFENSE, (V) AN OFFENSE SPECIFIED IN SECTION ELEVEN HUNDRED NINETY-TWO OF THE VEHICLE AND TRAFFIC LAW, OR (VI) ANY CRIME SPECIFIED IN THE PENAL LAW FOR WHICH A VIOLATION OF ANY PROVISION OF SECTION ELEVEN HUNDRED NINETY-TWO OF THE VEHICLE AND TRAFFIC LAW IS AN ESSENTIAL ELEMENT; OR (B) SUCH PERSON HAS NOT BEEN CONVICTED OF A FELONY, AT LEAST SEVEN YEARS HAVE ELAPSED SINCE SUCH PERSON WAS LAST CONVICTED OF A MISDEMEANOR AND HE OR SHE HAS BEEN CONVICTED OF NOT MORE THAN TWO MISDEMEANORS NEITHER OF WHICH WAS (I) AN OFFENSE SPECIFIED IN ARTICLE ONE HUNDRED THIRTY OR TWO HUNDRED SIXTY-THREE OF THE PENAL LAW, (II) AN OFFENSE SPECIFIED IN ARTICLE ONE HUNDRED NINETY-FIVE OR TWO HUNDRED OF THE PENAL LAW WHERE THE PETITIONER WAS A PUBLIC SERVANT AT THE TIME OF THE OFFENSE, OR (III) AN OFFENSE SPECIFIED IN SECTION ELEVEN HUNDRED NINE- TY-TWO OF THE VEHICLE AND TRAFFIC LAW. NOTWITHSTANDING THE FOREGOING, IN NO EVENT MAY A PERSON BRING A PETITION UNDER THIS SECTION UNLESS HE OR SHE HAS COMPLETED ANY AND ALL SENTENCES HE OR SHE RECEIVED ON ACCOUNT OF SUCH CONVICTION OR CONVICTIONS. WHERE A PERSON HAS BEEN CONVICTED OF A CRIMINAL OFFENSE UNDER FEDERAL LAW OR THE LAW OF ANOTHER STATE, AND SUCH CONVICTION WOULD CONSTITUTE A FELONY UNDER THE PENAL LAW OF THIS STATE, SUCH PERSON MAY NOT BRING A PETITION UNDER THIS SECTION; AND WHERE SUCH CONVICTION WOULD CONSTITUTE A MISDEMEANOR, IT SHALL BE COUNT- ED FOR PURPOSES OF THIS PARAGRAPH AS IF IT WERE A MISDEMEANOR UNDER THE PENAL LAW OF THIS STATE. FOR PURPOSES OF THIS SECTION, A PERSON SHALL HAVE COMPLETED A SENTENCE WHEN HE OR SHE HAS SERVED IN FULL ANY TERM OF IMPRISONMENT AND FINISHED ANY TERM OR PERIOD OF PAROLE, PROBATION, CONDITIONAL RELEASE AND POST-RELEASE SUPERVISION; MADE ALL REQUIRED RESTITUTION; COMPLETED ALL REQUIRED COMMUNITY SERVICE; PAID ALL FINES AND SURCHARGES ASSESSED, INCLUDING THOSE THAT WERE DEFERRED AND MADE SUBJECT TO COLLECTION IN THE SAME MANNER AS A CIVIL JUDGMENT PURSUANT TO SUBDIVISION FIVE OF SECTION
420.40 OF THIS CHAPTER; AND OTHERWISE SATISFIED ALL CONDITIONS IMPOSED BY THE SENTENCING COURT. FURTHER, THE PERIODS OF TIME SPECIFIED IN PARA- GRAPHS (A) AND (B) OF THIS SUBDIVISION SHALL BE TOLLED BY ANY PERIOD FROM THE DATE OF SENTENCE TO THE DATE WHEN THE PETITIONER WAS LAST RELEASED FROM ANY PERIOD OF INCARCERATION ON ACCOUNT OF THE CONVICTION OR CONVICTIONS FOR WHICH SEALING IS SOUGHT. NO PERSON MAY BRING A PETITION UNDER THIS SECTION WHILE ANY CHARGED CRIMINAL OFFENSE IS PENDING AGAINST HIM OR HER AND NO PERSON MAY HAVE MORE THAN ONE SUCH PETITION GRANTED DURING HIS OR HER LIFETIME. THE RIGHT TO BRING A PETITION HEREUNDER MAY NOT BE WAIVED. 2. COURT TO WHICH PETITION UNDER THIS SECTION MUST BE BROUGHT; FILING FEE; RESPONSIBILITIES OF THE COURT. (A) A PETITION TO SEAL THE RECORD OF A CONVICTION FOR A CRIMINAL OFFENSE SPECIFIED IN PARAGRAPH (A) OF SUBDI- VISION ONE OF THIS SECTION MUST BE BROUGHT IN THE SUPERIOR COURT IN WHICH THE CONVICTION WAS ENTERED. A PETITION TO SEAL THE RECORD OF A CONVICTION FOR A CRIMINAL OFFENSE SPECIFIED IN PARAGRAPH (B) OF SUBDIVI- SION ONE OF THIS SECTION MUST BE BROUGHT IN A SUPERIOR COURT OF THE COUNTY IN WHICH THE COURT IN WHICH THE CONVICTION WAS ENTERED IS LOCATED OR, IF THE PETITION IS TO SEAL THE RECORDS OF MORE THAN ONE SUCH CONVICTION, THE PETITION MAY BE BROUGHT IN THE SUPERIOR COURT OF ANY COUNTY IN WHICH A COURT IN WHICH ONE OR MORE OF SUCH CONVICTIONS WAS ENTERED IS LOCATED. NO COURT MAY ACCEPT A PETITION UNDER THIS SECTION UNLESS IT IS ACCOMPANIED BY A FILING FEE OF NINETY-FIVE DOLLARS PAYABLE TO THE CLERK OF THE COURT; PROVIDED, HOWEVER, SUCH FEE MAY BE WAIVED WHERE, DUE TO THE PETITIONER'S INDIGENCE, PAYMENT OF THE FILING FEE WOULD WORK AN UNREASONABLE HARDSHIP ON THE PERSON OR HIS OR HER IMMEDI- ATE FAMILY. (B) THE SUPERIOR COURT THAT RECEIVES A PETITION UNDER PARAGRAPH (A) OF THIS SUBDIVISION SHALL REQUEST FROM THE DIVISION OF CRIMINAL JUSTICE SERVICES AND THE FEDERAL BUREAU OF INVESTIGATION AN UPDATED CRIMINAL HISTORY RECORD OF THE PETITIONER, INCLUDING ANY SEALED OR SUPPRESSED INFORMATION. UPON RECEIPT OF THE REQUEST, THE DIVISION OF CRIMINAL JUSTICE SERVICES SHALL PROVIDE A CRIMINAL HISTORY REPORT AND SHALL ALSO PROVIDE A REPORT FROM THE FEDERAL BUREAU OF INVESTIGATION REGARDING ANY CRIMINAL HISTORY INFORMATION THAT OCCURRED IN OTHER JURISDICTIONS. THE DIVISION IS HEREBY AUTHORIZED TO RECEIVE SUCH INFORMATION FROM THE FEDERAL BUREAU OF INVESTIGATION FOR THIS PURPOSE. (C) (1) PROVIDED THE PETITION COMPLIES WITH THE PROVISIONS OF SUBDIVI- SION ONE OF THIS SECTION AND THE PETITIONER HAS BEEN CONVICTED OF A FELONY OFFENSE, THE COURT, IN ITS DISCRETION AND IN THE INTERESTS OF JUSTICE, MAY GRANT THE PETITION AND ORDER THE SEALING OF THE RECORDS OF THE PETITIONER'S CONVICTION OR MAY DISMISS THE PETITION. IF, HOWEVER, THE PETITIONER HAS NOT BEEN CONVICTED OF ANY FELONY OFFENSE, THE COURT MUST GRANT THE PETITION AND ORDER THE SEALING OF THE RECORDS OF ALL OF THE PETITIONER'S CONVICTIONS FOR OFFENSES WITHIN THE MEANING OF SUBDIVI- SION ONE OF SECTION 10.00 OF THE PENAL LAW. WHERE THE COURT GRANTS A PETITION UNDER THIS SECTION, THE COURT MUST ALSO ORDER THE SEALING OF THE RECORDS OF ANY NON-CRIMINAL OFFENSE SCHEDULED IN THE PETITION THAT IS MORE THAN SEVEN YEARS OLD. (2) WHERE THE COURT HAS DISCRETION TO GRANT OR DISMISS A PETITION PURSUANT TO SUBPARAGRAPH ONE OF THIS PARAGRAPH, IT MUST, BEFORE MAKING ITS DETERMINATION, NOTIFY THE DISTRICT ATTORNEY OF THE COUNTY IN WHICH THE PETITIONER WAS CONVICTED OF A FELONY AND ADVISE THAT THE COURT IS CONSIDERING SEALING THE RECORDS OF THAT CONVICTION. THE DISTRICT ATTOR- NEY MUST BE GIVEN A REASONABLE OPPORTUNITY, WHICH SHALL NOT BE LESS THAN THIRTY DAYS NOR MORE THAN SIXTY DAYS, IN WHICH TO COMMENT AND SUBMIT
MATERIALS TO AID THE COURT IN DETERMINING THE PETITION. THE DISTRICT ATTORNEY MUST PROVIDE NOTICE TO THE VICTIM, IF ANY, OF THE PETITION FOR SEALING BY MAILING WRITTEN NOTICE TO THE VICTIM'S LAST-KNOWN ADDRESS. FOR PURPOSES OF THIS PARAGRAPH, "VICTIM" MEANS ANY PERSON WHO HAS SUSTAINED PHYSICAL OR FINANCIAL INJURY TO PERSON OR PROPERTY AS A DIRECT RESULT OF A FELONY THE RECORD OF WHICH THE PETITIONER IS ASKING THE COURT TO SEAL. (3) AT THE REQUEST OF THE PETITIONER OR THE DISTRICT ATTORNEY OF A COUNTY WHO RECEIVES NOTIFICATION PURSUANT TO SUBPARAGRAPH TWO OF THIS PARAGRAPH, OR IN ITS OWN DISCRETION, THE COURT MAY CONDUCT A HEARING TO CONSIDER AND REVIEW ANY RELEVANT EVIDENCE, INCLUDING TESTIMONY OF WITNESSES, OFFERED BY EITHER PARTY THAT WOULD AID THE COURT IN DETERMIN- ING WHETHER TO ORDER THE SEALING OF THE RECORDS OF THE PETITIONER'S CONVICTIONS. (4) WHERE THE COURT HAS DISCRETION TO GRANT OR DISMISS A PETITION PURSUANT TO SUBPARAGRAPH ONE OF THIS PARAGRAPH, IT MUST CONSIDER ANY RELEVANT FACTORS, INCLUDING BUT NOT LIMITED TO: (I) THE CIRCUMSTANCES AND SERIOUSNESS OF THE OFFENSE THAT RESULTED IN THE CONVICTION; (II) THE CHARACTER OF THE PETITIONER, INCLUDING WHAT STEPS HE OR SHE HAS TAKEN SINCE THE TIME OF HIS OR HER OFFENSE TOWARD PERSONAL REHABILITATION, INCLUDING TREATMENT, WORK, SCHOOL, OR OTHER PERSONAL HISTORY THAT DEMON- STRATES REHABILITATION; (III) THE PETITIONER'S CRIMINAL HISTORY; (IV) THE IMPACT OF SEALING THE PETITIONER'S RECORDS UPON HIS OR HER REHABILI- TATION AND HIS OR HER SUCCESSFUL AND PRODUCTIVE REENTRY AND REINTE- GRATION INTO SOCIETY, AND UPON PUBLIC SAFETY; AND (V) ANY STATEMENTS MADE BY ANY VICTIM OF AN OFFENSE COMMITTED BY THE PETITIONER WHERE THERE WAS IN FACT A VICTIM OF SUCH OFFENSE. (5) WHEN A COURT ORDERS THE SEALING OF THE RECORD OF A PETITIONER'S CONVICTION OR CONVICTIONS, THE CLERK OF SUCH COURT SHALL IMMEDIATELY NOTIFY THE COMMISSIONER OF THE DIVISION OF CRIMINAL JUSTICE SERVICES, THE HEADS OF ALL APPROPRIATE POLICE DEPARTMENTS AND ALL OTHER LAW ENFORCEMENT AGENCIES, AND ANY COURT THAT SENTENCED THE PETITIONER FOLLOWING CONVICTION OF AN OFFENSE THE RECORD OF WHICH MUST BE SEALED, OF SUCH ORDER. THEREUPON, ALL OFFICIAL RECORDS AND PAPERS RELATING TO THE PETITIONER'S ARRESTS, PROSECUTIONS AND CONVICTIONS, INCLUDING ALL DUPLICATES AND COPIES THEREOF, ON FILE WITH THE DIVISION 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 FINGER- PRINTS, PALMPRINTS, PHOTOGRAPHS OR DIGITAL IMAGES OF THE SAME. (6) NOTWITHSTANDING SUBPARAGRAPH FIVE OF THIS PARAGRAPH, RECORDS SEALED PURSUANT TO SUCH SUBPARAGRAPH SHALL BE MADE AVAILABLE TO: (I) THE PETITIONER OR HIS OR HER DESIGNATED AGENT; (II) QUALIFIED AGENCIES, AS DEFINED IN SUBDIVISION NINE OF SECTION EIGHT HUNDRED THIRTY-FIVE OF THE EXECUTIVE LAW, AND FEDERAL AND STATE LAW ENFORCEMENT AGENCIES, WHEN ACTING WITHIN THE SCOPE OF THEIR LAW ENFORCEMENT DUTIES; (III) ANY STATE OR LOCAL OFFICER OR AGENCY WITH RESPONSIBILITY FOR THE ISSUANCE OF LICENSES TO POSSESS GUNS, WHEN THE PETITIONER HAS MADE AN APPLICATION FOR SUCH A LICENSE; (IV) 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 EMPLOYMENT AS A POLICE OFFICER OR PEACE OFFICER, PROVIDED, HOWEVER, THAT EVERY PERSON WHO IS AN APPLICANT FOR THE POSI- TION OF POLICE OFFICER OR PEACE OFFICER SHALL BE FURNISHED WITH A COPY OF ALL RECORDS OBTAINED UNDER THIS SUBPARAGRAPH AND AFFORDED AN OPPORTU- NITY TO MAKE AN EXPLANATION THEREOF; (V) THE JUSTICE CENTER FOR THE PROTECTION OF PEOPLE WITH SPECIAL NEEDS, IN RELATION TO PERFORMING ITS
DUTIES UNDER ARTICLE TWENTY OF THE EXECUTIVE LAW; AND (VI) SUCH OTHER AND FURTHER OFFICERS, INDIVIDUALS, INSTITUTIONS AND AGENCIES, PUBLIC OR PRIVATE, THAT EMPLOY PERSONS WHO THEREBY HAVE REGULAR CONTACT WITH CHIL- DREN OR OTHER VULNERABLE PERSONS AS THE CHIEF ADMINISTRATOR OF THE COURTS MAY DESIGNATE, INCLUDING ALL OFFICERS, INDIVIDUALS, INSTITUTIONS AND AGENCIES SUBJECT TO OPERATION, LICENSURE OR CERTIFICATION BY A STATE OVERSIGHT AGENCY AS DEFINED IN SUBDIVISION FOUR OF SECTION FIVE HUNDRED FIFTY OF THE EXECUTION LAW OR OTHERWISE SUBJECT TO OVERSIGHT OR REGU- LATION BY THE JUSTICE CENTER FOR THE PROTECTION OF PEOPLE WITH SPECIAL NEEDS. 3. DETERMINATION TO BE IN WRITING. ANY DETERMINATION GRANTING OR DISMISSING A PETITION PURSUANT TO SUBDIVISION ONE OF THIS SECTION MUST BE IN WRITING AND, WHERE THE COURT HAS DISCRETION TO MAKE SUCH DETERMI- NATION, SHALL STATE THE REASONS FOR THAT DETERMINATION. 4. NO RELIEF OF DISABILITIES. A DETERMINATION GRANTING A PETITION PURSUANT TO SUBDIVISION ONE OF THIS SECTION SHALL NOT RELIEVE THE PETI- TIONER OF ANY FORFEITURE OR DISABILITY, OR REMOVE ANY BAR TO HIS OR HER EMPLOYMENT, AUTOMATICALLY IMPOSED BY LAW BY REASON OF HIS OR HER CONVICTION OF THE OFFENSE THE RECORDS OF WHICH ARE THEREBY SEALED PROVIDED, HOWEVER, A PETITION PURSUANT TO THIS SECTION FOR SEALING THE RECORD OF A CONVICTION MAY BE ACCOMPANIED BY AN APPLICATION FOR A CERTIFICATE OF RELIEF FROM DISABILITIES UNDER ARTICLE TWENTY-THREE OF THE CORRECTION LAW, IN WHICH EVENT THE COURT MUST DETERMINE SUCH APPLI- CATION AND SUCH DETERMINATION SHALL BE WITHOUT REGARD TO THE DETERMI- NATION OF THE PETITION FOR SEALING. NOTHING IN THIS SECTION SHALL PROHIBIT USE OF THE CONVICTION OF AN OFFENSE, THE RECORDS OF WHICH HAVE BEEN SEALED HEREUNDER, IN ANY SENTENCING PROCEEDING, OR AS AN ELEMENT OF AN OFFENSE IN ANY SUBSEQUENT CRIMINAL PROCEEDING OR REGULATORY ACTION COMMENCED AGAINST THE PETITIONER BY THE STATE OR ANY POLITICAL SUBDIVI- SION THEREOF. 5. UNSEALING OF SEALED RECORDS. WHERE RECORDS OF A PERSON'S CONVICTION OR CONVICTIONS HAVE BEEN SEALED PURSUANT TO THIS SECTION, SUCH RECORD OR RECORDS SHALL BE UNSEALED: (A) IMMEDIATELY UPON SUCH PERSON BEING SUBSE- QUENTLY ARRAIGNED ON THE CHARGE OF ANY FELONY OFFENSE UNDER THE LAW OF THIS STATE, OR A CRIMINAL OFFENSE UNDER FEDERAL LAW OR THE LAW OF ANOTH- ER STATE THAT, UNDER THE PENAL LAW OF THIS STATE, WOULD CONSTITUTE A FELONY OFFENSE; OR (B) IMMEDIATELY UPON SUCH PERSON BEING SUBSEQUENTLY CONVICTED OF ANY MISDEMEANOR OFFENSE UNDER THE LAW OF THIS STATE, OR A CRIMINAL OFFENSE UNDER FEDERAL LAW OR THE LAW OF ANOTHER STATE THAT, UNDER THE PENAL LAW OF THIS STATE, WOULD CONSTITUTE A MISDEMEANOR OFFENSE. PROVIDED, HOWEVER, THAT IF SUCH NEW ARREST, CHARGE OR CONVICTION (FOLLOWING AN APPEAL THEREFROM) RESULTS IN A TERMINATION IN FAVOR OF THE ACCUSED AS DEFINED IN SUBDIVISION THREE OF SECTION 160.50 OF THIS ARTICLE OR IN A CONVICTION FOR A NON-CRIMINAL OFFENSE AS DESCRIBED IN SECTION 160.55 OF THIS ARTICLE, SUCH UNSEALED RECORDS SHALL AGAIN BE SEALED AS PROVIDED IN SUBPARAGRAPH FIVE OF PARAGRAPH (C) OF SUBDIVISION TWO OF THIS SECTION. S 4. 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- 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 INCLUDING ANY OFFICER, INDIVIDUAL, INSTITUTION OR AGENCY SUBJECT TO OVERSIGHT OR REGULATION BY THE JUSTICE CENTER FOR THE PROTECTION OF PEOPLE WITH SPECIAL NEEDS OR WITH ANY OTHER OFFICER, INDIVIDUAL, INSTITUTION OR AGENCY DESIGNATED BY THE CHIEF ADMINISTRATOR OF THE COURTS PURSUANT TO CLAUSE (VI) OF SUBPARAGRAPH SIX OF PARAGRAPH (C) OF SUBDIVISION TWO OF SECTION 160.65 OF THE CRIMINAL PROCEDURE LAW with respect to any arrest or criminal accusation which was followed by a youthful offender adjudi- cation, 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 CRIMI- NAL PROCEDURE LAW. S 5. Whenever, in connection with the licensing, employment or provid- ing of credit or insurance to an individual, any person, agency, bureau, corporation or association, including the state and any political subdi- vision thereof, inquires of such individual if he or she has been convicted of a crime, whether in any form of application or otherwise, such inquiry, regardless of how worded, shall be deemed to be only as to convictions that have not been sealed pursuant to section 160.55, 160.58 or 160.65 of the criminal procedure law, and the individual to whom it is directed shall answer accordingly; provided, however, this section shall not apply where the inquiry would not constitute an unlawful discriminatory practice under subdivision 16 of section 296 of the exec- utive law. S 6. Nothing in this act shall bar any person from freely speaking or writing about, or publishing by any other means, any information in his
or her possession concerning another person's past criminal conviction or convictions, notwithstanding that such conviction or convictions may have been sealed pursuant to this act. S 7. 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 effective date.

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