Bill S6814A-2013

Relates to the sealing and expungement of records in persons in need of supervision cases in family court

Relates to the sealing and expungement of records in persons in need of supervision cases in family court.

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  • Jun 20, 2014: COMMITTED TO RULES
  • Jun 12, 2014: AMENDED ON THIRD READING 6814A
  • Jun 2, 2014: ADVANCED TO THIRD READING
  • May 29, 2014: 2ND REPORT CAL.
  • May 28, 2014: 1ST REPORT CAL.1002
  • Mar 12, 2014: REFERRED TO CHILDREN AND FAMILIES

Memo

BILL NUMBER:S6814A

TITLE OF BILL: An act to amend the family court act, in relation to sealing and expungement of records in persons in need of supervision cases in the family court

This is one in a series of measures being introduced at the request of the Chief Administrative Judge upon the recommendation of her Family Court Advisory and Rules Committee.

When Article 3 of the Family Court Act, the juvenile delinquency procedure statute, was enacted over three decades ago (L. 1982, c. 920), applicable provisions of the Criminal Procedure Law (CPL) deemed essential for due process and fairness were incorporated into its text. However, similar provisions were not introduced in the remaining provisions of Article 7 of the Family Court Act, which from that point onward applied only to Persons in Need of Supervision (PINS) cases. One of the most glaring omissions is the provision regarding confidentiality of records. Article 3, modeled after CPL 160.50, has afforded youth who are accused of juvenile delinquency, like adults accused of crimes, far more protections than those who are the subjects of PINS proceedings.

Professor Merril Sobie noted this disparity in his Practice Commentaries to Family Court Act § 751:

(Family Court Act) Article 7, unlike Article 3 (the juvenile delinquency statute), does not provide for the automatic sealing of records when a petition is dismissed or withdrawn (see Section 375.1). Hence, the records remain relatively open, subject only to the generalized, imprecise (Family Court Act) Section 166 stipulation that "(t)he records of any proceeding in the family court shall not be open to indiscriminate public inspection". Ironically, children who are falsely accused of non-criminal "status offense" conduct are afforded less protection than youths who are accused of engaging in criminal activities.

We submit this measure to correct that imbalance. First, closely tracking section 375.1 of the Family Court Act and CPL 160.50, the measure would amend section 783 of the Family Court Act to provide that court records in actions terminated favorably for the accused that is, cases that had been adjusted (diverted without petition), withdrawn or dismissed -- would automatically be sealed. Notices would be required to be sent to probation departments, designated lead agencies for PINS diversion and, if presentment or law enforcement agencies have been involved, to such agencies, directing them to seal their records as well. The juveniles' attorneys would be required to be notified that the directives had been sent. Youth whose cases had been favorably terminated prior to the effective date of the statute would be permitted to move for sealing upon twenty days' notice.

Second, in cases in which a juvenile has been adjudicated as a PINS, the juvenile would be permitted to make a motion for sealing of the record in the interests of justice. If granted, notices would likewise be sent to the agencies involved in the case to seal their records. As in section 375.3 of the Family Court Act, Family Court would retain its inherent authority to expunge, rather than simply seal, its

records. See Matter of Dorothy D. v. New York City Probation Department, 49 N.Y.2d 212 (1980)(juvenile delinquency); Matter of Richard S. v. City of New York, 32 N.Y.2d 592 (1973)(PINS); Matter of Daniel PP., 224 A.D.2d 906 (3d Dept., 1996)(PINS). As the Court of Appeals held in Matter of Dorothy D., supra:

That the very existence of such records, despite provisions for confidentiality, may constitute a substantial impediment to entry into institutions of higher learning, government or private employment, the armed services, or the professions, cannot be seriously questioned. For this reason it would be antithetical to the purpose of the Family Court Act to maintain records which would not benefit society and would result in bringing unwarranted discrimination to a child's future. (Matter of Richard S. v. City of New York, 32 N.Y.2d 592, 595-596, 347 N.Y.S.2d 54, 56, 300 N.E.2d 426, 427).

Many states, in fact, include expungement, not simply sealing, as their mechanism for ensuring the confidentiality of juvenile records. See, e.g., West's Colorado Revised Statutes § 19-1-306; Illinois Compiled Statutes § 405/5-915 (juvenile delinquency) and § 405/1-9 (juvenile court records other than juvenile delinquency); Ohio Revised Code §§ 2151.355, 2151.356, 2151.358 (juvenile delinquency and "unruly children" records); Revised Code of Washington § 13.50.050; Delaware Code §§ 1014-1018; North Carolina General Statutes §§ 7B3200, 3201 (juvenile delinquency and "undisciplined" children); Arizona Revised Statutes § 13-921; Arkansas Code § 9-27-309(b)(1)(A), (b)(2); West's California Code, Div. 2, C. 2, Art. 22, § 826(a)); Connecticut General Statutes §§ 46b-133a,46b-146; West's Florida Statutes § 943.0582; Minnesota Statutes § 260B.235(9)); Pennsylvania Consolidated Statutes § 9123); West's Code of Virginia § 16-1-306).

Finally, recognizing that PINS behavior consists of conduct that would not be criminal if committed by adults, sections 783 and 784 of the Family Court Act would be amended to preclude use of PINS records in other courts. The language in section 783, permitting utilization of such records in criminal sentencing proceedings, as well as the reference in section 784 to criminal courts taking action regarding police records, are vestiges of the days when juvenile delinquency and PINS proceedings were both covered by Article 7 of the Family Court Act and are more appropriately applied solely to juvenile delinquency records. Indeed, these provisions have been incorporated into Article 3. See Family Court Act §§ 381.2, 381.3(2). This measure appropriately deletes these provisions from Family Court Act Article 7.

The need to keep records of juvenile misbehavior, both criminal and noncriminal in nature, confidential has long been a central feature of the juvenile justice system. As former Chief Justice Rehnquist noted, in his concurring opinion in Smith v. Daily Mail, 443 U.S. 97, 107 (1979):

It is a hallmark of our juvenile justice system in the United States that, virtually from its inception at the end of the last century, its proceedings have been conducted outside of the public's full gaze and the youths brought before our juvenile courts have been shielded from publicity. See H. Lou, Juvenile Courts in the United States 131-133 (1927); Geis, Publicity and juvenile Court Proceedings, 30 Rocky Mt.L.Rev. 101, 102, 116 (1958). This insistence on confidentiality is

born of a tender concern for the welfare of the child, to hide his youthful errors and "bury them in the graveyard of the forgotten past.'" In re Gault, 387 U. S. 1, 387 U. S. 24-25 (1967).

This proposal recognizes that non-criminal conduct, the gravamen of PINS cases, no less than the criminal conduct underlying juvenile delinquency proceedings, requires the protections that have long been deemed essential to fulfilling the goals of the juvenile justice system.

This measure, which would have no fiscal impact upon the State, would take effect 90 days after it shall have become a law.

Legislative History: Senate 6814 (Senator Felder) (advanced to 3rd Rdg.) Assembly 9916 (Rules-request of M. of A. Lupardo) (reported referred to Codes)


Text

STATE OF NEW YORK ________________________________________________________________________ 6814--A Cal. No. 1002 IN SENATE March 12, 2014 ___________
Introduced by Sen. FELDER -- (at request of the Office of Court Adminis- tration) -- read twice and ordered printed, and when printed to be committed to the Committee on Children and Families -- reported favor- ably from said committee, ordered to first and second report, ordered to a third reading, amended and ordered reprinted, retaining its place in the order of third reading AN ACT to amend the family court act, in relation to sealing and expungement of records in persons in need of supervision cases in the family court THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Section 783 of the family court act is amended to read as follows: S 783. Use of [record] RECORDS in other court; SEALING AND EXPUNGEMENT OF RECORDS. (A) Neither the fact that a person was before the family court under this article for a hearing nor any confession, admission or statement made by him OR HER to the court or to any officer thereof in any stage of the proceeding is admissible as evidence against him or HER OR his OR HER interests in any other court. [Another court, in imposing sentence upon an adult after conviction, may receive and consider the records and information on file with the family court concerning such person when he was a child.] (B) FOR PURPOSES OF THIS SECTION, "SEALING" SHALL MEAN THAT ALL OFFI- CIAL RECORDS AND PAPERS, INCLUDING JUDGMENTS AND ORDERS OF THE COURT, BUT NOT INCLUDING PUBLIC COURT DECISIONS OR OPINIONS OR RECORDS AND BRIEFS ON APPEAL, RELATING TO THE ARREST, THE PROSECUTION AND RECORDS OF THE PROBATION SERVICE AND DESIGNATED LEAD AGENCY, INCLUDING ALL DUPLI- CATES OR COPIES THEREOF, ON FILE WITH THE COURT, POLICE DEPARTMENT AND LAW ENFORCEMENT AGENCY, PROBATION SERVICE, DESIGNATED LEAD AGENCY AND PRESENTMENT AGENCY, IF ANY, SHALL BE PROTECTED FROM PUBLIC INSPECTION AND SHALL NOT BE MADE AVAILABLE TO ANY PERSON OR PUBLIC OR PRIVATE AGEN- CY. SUCH RECORDS SHALL ONLY BE MADE AVAILABLE TO THE RESPONDENT OR HIS OR HER DESIGNATED AGENT.
(C) AUTOMATIC SEALING OF A PROCEEDING UNDER THIS ARTICLE THAT IS TERMINATED IN FAVOR OF THE RESPONDENT. (I) UPON TERMINATION OF A PROCEEDING UNDER THIS ARTICLE IN FAVOR OF THE RESPONDENT, THE CLERK OF THE COURT SHALL IMMEDIATELY NOTIFY AND DIRECT THE DIRECTORS OF THE APPROPRIATE PROBATION DEPARTMENT, DESIGNATED LEAD AGENCY PURSUANT TO SECTION SEVEN HUNDRED THIRTY-FIVE OF THIS ARTICLE AND, IF A PRESENTMENT AGENCY REPRESENTED THE PETITIONER IN THE PROCEEDING, SUCH AGENCY, THAT THE PROCEEDING HAS TERMINATED IN FAVOR OF THE RESPONDENT AND THAT THE RECORDS, IF ANY, OF SUCH ACTION OR PROCEEDING ON FILE WITH SUCH OFFICES SHALL BE SEALED. IF THE RESPONDENT HAD BEEN THE SUBJECT OF A WARRANT OR AN ARREST IN CONNECTION WITH THE PROCEEDING, OR LAW ENFORCEMENT WAS THE REFERRING AGENCY OR PETITIONER PURSUANT TO SECTION SEVEN HUNDRED THIR- TY-THREE OF THIS ARTICLE, THE NOTICE SHALL ALSO BE SENT TO THE APPROPRI- ATE POLICE DEPARTMENT OR LAW ENFORCEMENT AGENCY. UPON RECEIPT OF SUCH NOTIFICATION, THE RECORDS SHALL BE SEALED IN ACCORDANCE WITH SUBDIVISION (B) OF THIS SECTION. THE ATTORNEY FOR THE RESPONDENT SHALL BE NOTIFIED BY THE CLERK OF THE COURT IN WRITING OF THE DATE AND AGENCIES AND DEPARTMENTS TO WHICH SUCH NOTIFICATIONS WERE SENT. (II) FOR THE PURPOSES OF THIS SECTION, A PROCEEDING UNDER THIS ARTICLE SHALL BE CONSIDERED TERMINATED IN FAVOR OF A RESPONDENT WHERE THE PROCEEDING HAS BEEN: (A) ADJUSTED PRIOR TO THE FILING OF A PETITION PURSUANT TO SUBDIVISION (G) OF SECTION SEVEN HUNDRED THIRTY-FIVE OF THIS ARTICLE OR SUBSEQUENT TO THE FILING OF A PETITION PURSUANT TO SUBDIVISION (B) OF SECTION SEVEN HUNDRED FORTY-TWO OF THIS ARTICLE; OR (B) WITHDRAWN OR DISMISSED FOR FAILURE TO PROSECUTE, OR FOR ANY OTHER REASON AT ANY STAGE; OR (C) DISMISSED FOLLOWING AN ADJOURNMENT IN CONTEMPLATION OF DISMISSAL PURSUANT TO SUBDIVISION (A) OF SECTION SEVEN HUNDRED FORTY-NINE OF THIS ARTICLE. (III) IF, WITH RESPECT TO A RESPONDENT WHO HAD BEEN THE SUBJECT OF A WARRANT OR AN ARREST IN CONNECTION WITH THE PROCEEDING, OR LAW ENFORCE- MENT WAS THE REFERRING AGENCY, THE DESIGNATED LEAD AGENCY ADJUSTS A CASE PRIOR TO THE FILING OF A PETITION UNDER THIS ARTICLE, THE DESIGNATED LEAD AGENCY SHALL SERVE A CERTIFICATION OF SUCH ADJUSTMENT UPON THE APPROPRIATE PROBATION SERVICE AND POLICE DEPARTMENT OR LAW ENFORCEMENT AGENCY. UPON RECEIPT OF SUCH CERTIFICATION, THE PROBATION SERVICE AND POLICE DEPARTMENT OR LAW ENFORCEMENT AGENCY SHALL SEAL ANY RECORDS, IF ANY, ON FILE WITH SUCH OFFICES IN ACCORDANCE WITH SUBDIVISION (B) OF THIS SECTION IN THE SAME MANNER AS IS REQUIRED THEREUNDER WITH RESPECT TO AN ORDER OF A COURT. (IV) IF, FOLLOWING THE REFERRAL OF A PROCEEDING UNDER THIS ARTICLE FOR THE FILING OF A PETITION, THE PETITIONER OR, IF REPRESENTED BY A PRESENTMENT AGENCY, SUCH AGENCY, ELECTS NOT TO FILE A PETITION UNDER THIS ARTICLE, THE PETITIONER OR, IF APPLICABLE, THE PRESENTMENT AGENCY, SHALL SERVE A CERTIFICATION OF SUCH DETERMINATION UPON THE APPROPRIATE PROBATION SERVICE AND DESIGNATED LEAD AGENCY. IF THE RESPONDENT HAD BEEN THE SUBJECT OF A WARRANT OR AN ARREST IN CONNECTION WITH THE PROCEEDING, OR LAW ENFORCEMENT WAS THE REFERRING AGENCY, THE CERTIFICATION SHALL ALSO BE SENT TO THE APPROPRIATE POLICE DEPARTMENT OR LAW ENFORCEMENT AGENCY. UPON RECEIPT OF SUCH CERTIFICATION, THE RECORDS SHALL BE SEALED IN ACCORDANCE WITH SUBDIVISION (B) OF THIS SECTION IN THE SAME MANNER AS IS REQUIRED THEREUNDER WITH RESPECT TO AN ORDER OF A COURT. (V) A RESPONDENT IN WHOSE FAVOR A PROCEEDING WAS TERMINATED AS DEFINED IN THIS SECTION PRIOR TO THE EFFECTIVE DATE OF THE CHAPTER OF THE LAWS OF TWO THOUSAND FOURTEEN WHICH ADDED THIS PARAGRAPH MAY, UPON MOTION,
APPLY TO THE COURT, UPON NOT LESS THAN TWENTY DAYS NOTICE TO THE PETI- TIONER OR (WHERE THE PETITIONER IS REPRESENTED BY A PRESENTMENT AGENCY) SUCH AGENCY, FOR AN ORDER GRANTING THE RELIEF SET FORTH IN PARAGRAPH (I) OF THIS SUBDIVISION. WHERE A PROCEEDING UNDER THIS ARTICLE WAS TERMI- NATED IN FAVOR OF THE RESPONDENT IN ACCORDANCE WITH PARAGRAPH (III) OR (IV) OF THIS SUBDIVISION PRIOR TO THE EFFECTIVE DATE OF THE CHAPTER OF THE LAWS OF TWO THOUSAND FOURTEEN WHICH ADDED THIS PARAGRAPH, THE RESPONDENT MAY APPLY TO THE DESIGNATED LEAD AGENCY, PETITIONER OR PRESENTMENT AGENCY, AS APPLICABLE, FOR A CERTIFICATION AS DESCRIBED IN SUCH PARAGRAPHS GRANTING THE RELIEF SET FORTH THEREIN AND SUCH CERTIF- ICATION SHALL BE GRANTED. (D) MOTION TO SEAL AFTER AN ADJUDICATION AND DISPOSITION. (I) IF AN ACTION HAS RESULTED IN AN ADJUDICATION AND DISPOSITION UNDER THIS ARTI- CLE, THE COURT MAY, IN THE INTEREST OF JUSTICE AND UPON MOTION OF THE RESPONDENT, ORDER THE SEALING OF THE RECORDS AND PROCEEDINGS. (II) SUCH MOTION MUST BE IN WRITING AND MAY BE FILED AT ANY TIME SUBSEQUENT TO THE ENTERING OF THE DISPOSITION. NOTICE OF SUCH MOTION SHALL BE SERVED NOT LESS THAN EIGHT DAYS PRIOR TO THE RETURN DATE OF THE MOTION UPON THE PETITIONER OR, IF THE PETITIONER WAS REPRESENTED BY A PRESENTMENT AGENCY, SUCH AGENCY. ANSWERING AFFIDAVITS SHALL BE SERVED AT LEAST TWO DAYS BEFORE THE RETURN DATE. (III) THE COURT SHALL SET FORTH IN A WRITTEN ORDER ITS REASONS FOR GRANTING OR DENYING THE MOTION. IF THE COURT GRANTS THE MOTION, ALL COURT RECORDS, AS WELL AS ALL RECORDS ON FILE WITH THE DESIGNATED LEAD AGENCY, THE PROBATION SERVICE, THE PRESENTMENT AGENCY, IF ANY, AND, IF THE RESPONDENT HAD BEEN THE SUBJECT OF A WARRANT OR AN ARREST IN CONNECTION WITH THE PROCEEDING, OR WAS THE REFERRING AGENCY OR PETITION- ER PURSUANT TO SECTION SEVEN HUNDRED THIRTY-THREE OF THIS ARTICLE, THE APPROPRIATE POLICE OR LAW ENFORCEMENT AGENCY, SHALL BE SEALED IN ACCORD- ANCE WITH SUBDIVISION (B) OF THIS SECTION. (E) EXPUNGEMENT OF COURT RECORDS. NOTHING CONTAINED IN THIS ARTICLE SHALL PRECLUDE THE COURT'S USE OF ITS INHERENT POWER TO ORDER THE EXPUNGEMENT OF COURT RECORDS. S 2. Section 784 of the family court act is amended to read as follows: S 784. Use of police records. All police records relating to the arrest and disposition of any person under this article shall be kept in files separate and apart from the arrests of adults and shall be with- held from public inspection, but such records shall be open to inspection upon good cause shown by the parent, guardian, next friend or attorney of that person upon the written order of a judge of the family court in the county in which the order was made [or, if the person is subsequently convicted of a crime, of a judge of the court in which he was convicted]. S 3. This act shall take effect on the ninetieth day after it shall have become a law.

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