Provides for the sealing of the court records involving convictions of violations and traffic infractions, except loitering, loitering for the purpose of engaging in prostitution and driving while ability impaired.
BILL NUMBER: S5958
TITLE OF BILL : An act to amend the criminal procedure law, in relation to sealing court records involving convictions for certain petty offenses
This is one in a series of measures being introduced at the request of the Chief Administrative Judge upon the recommendation of her Local Courts Advisory Committee.
This measure would add a new section 160.57 to the Criminal Procedure Law to authorize the sealing of court records relating to convictions for petty offenses.
Currently, section 160.55 of the Criminal Procedure Law authorizes the sealing of records relating to convictions for non-criminal petty offenses such as disorderly conduct or trespass, except for the petty offenses of loitering (Penal Law § 240.35(3)), loitering for the purpose of engaging in prostitution (Penal Law § 240.37(2)) and driving while ability impaired (Vehicle and Traffic Law § 1192(1)), which are expressly exempt from the scope of this provision. The records that are sealed under this provision are the files of the police department, the District Attorney's Office, and fingerprints on file with the Division of Criminal Justice Services. The official records and papers of such cases on file with the court, however, are not sealed.
The availability to the public of court records of a conviction for a petty offense can have an adverse collateral consequence for the defendant, who having pled guilty to the petty offense as part of a plea bargain that avoids a conviction for a crime and who is otherwise living a law-abiding life, finds that he or she cannot secure employment or purchase a home because of the conviction for a petty offense.
The sealing procedure authorized by this proposal is as follows: A person who has been convicted of a petty offense must wait one year from the date of sentence before he or she can apply to the court, with notice to the District Attorney, for an order sealing his or her court record. In connection with the application, the District Attorney may consent to the sealing or oppose it, whereupon the court would hold a summary hearing to determine whether the application should be granted. The District Attorney need not wait for the defendant's application and can apply for an order keeping the court record unsealed. In the absence of an application by the defendant or the District Attorney, the court records are automatically sealed 36 months from the date of sentence.
The procedure authorized by this measure seeks to address a prosecutor's public safety concern that a particular defendant not have the benefit of a sealing and the operational concerns of courts facing the prospect of having to process numerous sealing applications. First, unlike the automatic sealing requirements currently in place under the Criminal Procedure Law, this measure would allow the sealing procedure to proceed unless the District Attorney's Office objects and has an opportunity to be heard. Second, the 12- and 36- month deadlines are intended to create cooling off periods that would prevent a deluge of sealing applications to the local criminal court that would otherwise be made were applications to seal permitted at the time of sentence. The 12- and 36- month periods also would provide adequate time for the District Attorney to determine whether the defendant has fully complied with the terms of his or her sentence.
This measure, which would have no fiscal impact upon the State, would take effect on the first day of November after becoming a law.
2008 LEGISLATIVE HISTORY :
None. New measure.
STATE OF NEW YORK ________________________________________________________________________ 5958 2009-2010 Regular Sessions IN SENATE June 19, 2009 ___________Introduced by Sen. SCHNEIDERMAN -- (at request of the Office of Court Administration) -- read twice and ordered printed, and when printed to be committed to the Committee on Rules AN ACT to amend the criminal procedure law, in relation to sealing court records involving convictions for certain petty offenses THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. The criminal procedure law is amended by adding a new section 160.57 to read as follows: S 160.57 APPLICATION FOR SEALING OF COURT RECORDS FOLLOWING TERMINATION OF CRIMINAL ACTION BY CONVICTION FOR NONCRIMINAL OFFENSE. 1. A PERSON CONVICTED OF A TRAFFIC INFRACTION OR A VIOLATION, OTHER THAN LOITERING AS DESCRIBED IN PARAGRAPH (D) OR (E) OF SUBDIVISION ONE OF SECTION 160.10 OF THIS CHAPTER OR OPERATING A MOTOR VEHICLE WHILE ABILITY IMPAIRED AS DESCRIBED IN SUBDIVISION ONE OF SECTION ELEVEN HUNDRED NINETY-TWO OF THE VEHICLE AND TRAFFIC LAW, AND WHOSE CASE WAS SEALED PURSUANT TO SECTION 160.55 OF THIS ARTICLE, MAY MOVE IN ACCORD- ANCE WITH THE PROVISIONS OF THIS SECTION FOR AN ORDER SEALING THE COURT RECORD OF SUCH ACTION OR PROCEEDING. IN THE ABSENCE OF AN EARLIER APPLI- CATION FOR AN ORDER TO SEAL, THE RECORD OF A CONVICTION OF A TRAFFIC INFRACTION OR A VIOLATION PURSUANT TO THIS SUBDIVISION SHALL BE AUTOMAT- ICALLY SEALED BY OPERATION OF LAW THIRTY-SIX MONTHS FROM THE DATE OF SENTENCE, UNLESS THE PEOPLE FILE A NOTICE OF OPPOSITION UPON NOTICE TO THE DEFENDANT, NO LESS THAN TWENTY DAYS PRIOR TO THE SEALING DATE AND NO LATER THAN NINETY DAYS PRIOR TO THE EXPIRATION OF THIRTY-SIX MONTHS. 2. A MOTION TO SEAL MAY BE FILED IN WRITING WITH THE LOCAL CRIMINAL COURT OR SUPERIOR COURT IN WHICH THE CONVICTION AND SENTENCE OCCURRED NOT EARLIER THAN TWELVE MONTHS FOLLOWING THE DATE OF SENTENCE. SUCH MOTION MUST BE MADE UPON NOT LESS THAN TWENTY DAYS NOTICE TO THE DISTRICT ATTORNEY.EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD10475-01-9 S. 5958 2
3. UPON MOTION TO SEAL THE COURT RECORD PURSUANT TO THIS SECTION, WHERE BOTH PARTIES CONSENT TO SUCH SEALING, THE COURT SHALL ENTER AN ORDER SEALING THE COURT RECORD UNLESS THE INTERESTS OF JUSTICE REQUIRE OTHERWISE. FOR PURPOSES OF THIS SUBDIVISION, A PARTY WHO IS GIVEN WRIT- TEN NOTICE OF A MOTION TO SEAL PURSUANT TO THIS SECTION SHALL BE DEEMED TO CONSENT TO SUCH APPLICATION UNLESS, PRIOR TO THE RETURN DATE OF SUCH MOTION, SUCH PARTY FILES A NOTICE OF OPPOSITION THERETO WITH THE COURT. 4. WHERE THE PEOPLE FILE A NOTICE OF OPPOSITION PRIOR TO THE RETURN DATE OR THE PROPOSED SEALING DATE PURSUANT TO SUBDIVISION ONE, THE COURT SHALL CONDUCT A HEARING ON THE RETURN DATE IN WHICH IT MAY RECEIVE ANY RELEVANT EVIDENCE. UPON REQUEST, THE COURT MUST GRANT A REASONABLE ADJOURNMENT TO EITHER PARTY TO ENABLE SUCH PARTY TO PREPARE FOR THE HEARING. FOLLOWING SUCH HEARING, AN ORDER TO SEAL PURSUANT TO THIS SECTION SHALL BE GRANTED UNLESS THE DISTRICT ATTORNEY DEMONSTRATES TO THE SATISFACTION OF THE COURT THAT THE INTERESTS OF JUSTICE REQUIRE OTHERWISE. WHERE THE COURT HAS DETERMINED THAT SEALING PURSUANT TO THIS SECTION IS NOT IN THE INTERESTS OF JUSTICE, THE COURT SHALL PUT FORTH ITS REASONS ON THE RECORD. 5. UPON ENTRY OF AN ORDER TO SEAL, THE COURT RECORD OF SUCH ACTION OR PROCEEDING SHALL BE SEALED AND 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 SHALL BE SEALED AS IF IT HAS BEEN TERMINATED IN FAVOR OF THE ACCUSED AND THAT THE RECORD OF SUCH ACTION OR PROCEEDING SHALL BE SEALED. 6. UPON THE ENTRY OF AN ORDER TO SEAL OR THE EXPIRATION OF THIRTY-SIX MONTHS FROM THE DATE OF SENTENCE WITHOUT OPPOSITION BY THE PEOPLE, ALL OFFICIAL RECORDS AND PAPERS, INCLUDING JUDGEMENTS AND ORDERS OF A COURT BUT NOT INCLUDING PUBLISHED COURT DECISIONS OR OPINIONS OR RECORDS AND BRIEFS ON APPEAL, RELATING TO THE ARREST OR PROSECUTION, INCLUDING ALL DUPLICATES AND COPIES THEREOF, ON FILE WITH ANY COURT SHALL BE SEALED AND NOT MADE AVAILABLE TO ANY PERSON OR PUBLIC OR PRIVATE AGENCY. 7. UPON THE GRANTING OF A MOTION TO SEAL PURSUANT TO THIS SECTION, OR UPON THE EXPIRATION OF THIRTY-SIX MONTHS FROM THE DATE OF SENTENCING WITHOUT OPPOSITION, SUCH RECORDS SHALL BE MADE AVAILABLE TO THE PERSON ACCUSED OR TO SUCH PERSON'S DESIGNATED AGENT, AND SHALL BE MADE AVAIL- ABLE TO: (A) 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 (B) 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 (C) ANY STATE OR LOCAL OFFICER OR AGENCY WITH RESPONSIBILITY FOR THE ISSUANCE OF LICENSES TO POSSESS GUNS, WHEN THE ACCUSED HAS MADE APPLICA- TION FOR SUCH A LICENSE, OR (D) THE DIVISION OF PAROLE WHEN THE ACCUSED IS ON PAROLE SUPERVISION AS A RESULT OF CONDITIONAL RELEASE OR A PAROLE RELEASE GRANTED BY THE STATE BOARD OF PAROLE, AND THE ARREST WHICH IS THE SUBJECT OF THE INQUIRY IS ONE WHICH OCCURRED WHILE THE ACCUSED WAS UNDER SUPERVISION, OR (E) 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 PEACES. 5958 3
OFFICER SHALL BE FURNISHED WITH A COPY OF ALL RECORDS OBTAINED UNDER THIS PARAGRAPH AND AFFORDED AN OPPORTUNITY TO MAKE AN EXPLANATION THERE- TO, OR (F) 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. 8. THE CHIEF ADMINISTRATOR OF THE COURTS, IN CONSULTATION WITH THE COMMISSIONER OF CRIMINAL JUSTICE SERVICES AND REPRESENTATIVES OF APPRO- PRIATE PROSECUTORIAL AND CRIMINAL DEFENSE ORGANIZATIONS IN THE STATE, SHALL ADOPT FORMS FOR THE MOTION TO SEAL, THE NOTICE OF OPPOSITION TO SEALING, AND THE ORDER GRANTING SEALING PURSUANT TO THIS SECTION. S 2. Subdivision 3 of section 160.50 of the criminal procedure law is amended by adding a new paragraph (m) to read as follows: (M) A SEALING ORDER PURSUANT TO SECTION 160.57 OF THIS ARTICLE WAS ENTERED. 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, and shall apply to all qualifying criminal actions for which the sentence date occurred after such effective date.