NY State Senate Bill 2013-S5385

Senate Bill S5385

2013-2014 Legislative Session

Permits the sealing of records of certain nonviolent misdemeanor or non-sexual misdemeanor criminal offenses

download bill text pdf

Archive: Last Bill Status - In Senate Committee Codes Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 08, 2014	referred to codes
May 16, 2013	referred to codes

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2013-S5385 (ACTIVE) - Details

Current Committee:: Senate Codes
Law Section:: Criminal Procedure Law
Laws Affected:: Add §160.65, CP L; amd §296, Exec L
Versions Introduced in Other Legislative Sessions:: 2015-2016: S4245
2017-2018: S653

2013-S5385 (ACTIVE) - Summary

Establishes the second chance for ex-offenders act; permits the sealing of records of certain nonviolent misdemeanor or non-sexual misdemeanor criminal offenses; defines the term "eligible offense"; excludes certain misdemeanor offenses as eligible offenses for the purposes of conditional sealing

2013-S5385 (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S5385

TITLE OF BILL:  An act to amend the criminal procedure law and the
executive law, in relation to permitting the sealing of records of
certain nonviolent misdemeanor or non-sexual misdemeanor offenses

PURPOSE:

To allow for the sealing of certain low-level offenses and violations
under specific circumstances.

SUMMARY OF PROVISIONS:

Section One entitles this act the "Second Chance for Ex-Offenders
Act".

Section Two amends the criminal procedure law and defines "eligible
offenses" for purposes of the conditional sealing of certain low-level
offenses. An individual can only apply for the sealing of an eligible
offense if at least seven years have passed since their conviction of
any penal law offense, they do not have more than three misdemeanors
on their criminal record, and they do not have any felony convictions.
Further, a person may not apply for conditional sealing of an eligible
offense until at least five years have passed since the completion of
any sentence affiliated with that eligible offense. Only the
sentencing court has jurisdiction to hold a hearing or grant an order

providing for the conditional sealing of eligible misdemeanors. This
section also provides the process by which a petition for the sealing
of certain records can be granted.

Section Three amends the executive law and provides that it shall be
an unlawful discriminatory practice for a non-governmental employer to
make an inquiry about, or act adversely to, an individual who has had
their criminal record sealed.

Section Four provides for an effective date of one hundred eighty days
after having become law.

JUSTIFICATION:

This bill establishes a procedure under which certain low-level,
non-violent offenses can be conditionally sealed. An individual will
not be eligible to file a petition to seal an eligible offense if that
individual has been convicted of more than three misdemeanors or any
felony, if their sentence has been complete for less than five years,
or if they have committed any penal law offense during the last seven
years.

Only the original sentencing court has jurisdiction over the sealing
petition. Upon request, the court may conduct a hearing to determine
if certain records should be sealed. The court can consider the
circumstances surrounding the offense, the character of the defendant,
the defendant's criminal history and civic service record, and the
impact of sealing on the defendant's rehabilitation and on any victim
of the original crime. If subsequent to the sealing of records, a
petitioner is found guilty of any offense, their records will be


unsealed.  Therefore, an individual who has been granted a sealing
petition is essentially on life-time probation.

A misdemeanor offense can follow a person for the rest of his or her
life. This bill intends to give those individuals who have previously
been convicted of an eligible offense, but have since proven to
possess good moral character, a second chance.

LEGISLATIVE HISTORY:

New bill.

FISCAL IMPLICATIONS:

None to the State.

EFFECTIVE DATE:

This act shall take effect one hundred eighty days after becoming law.

2013-S5385 (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  5385

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                              May 16, 2013
                               ___________

Introduced  by  Sen.  ZELDIN -- 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  permitting  the sealing of records of certain nonviolent
  misdemeanor or non-sexual misdemeanor offenses

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  This  act  shall be known and may be cited as the "second
chance for ex-offenders act".
  S 2. The criminal procedure law is amended by  adding  a  new  section
160.65 to read as follows:
S 160.65 CONDITIONAL SEALING OF CERTAIN OFFENSES.
  1. FOR THE PURPOSES OF THIS SECTION, THE TERM "ELIGIBLE OFFENSE" SHALL
BE: (A) A MISDEMEANOR OFFENSE DEFINED IN THE PENAL LAW, PROVIDED THAT AN
ELIGIBLE OFFENSE SHALL NOT MEAN A MISDEMEANOR OFFENSE DEFINED IN ARTICLE
ONE  HUNDRED  TWENTY  EXCEPT  ASSAULT  IN THE THIRD DEGREE AS DEFINED BY
SECTION 120.00, UNLESS COMMITTED IN THE COURSE OF  A  DOMESTIC  VIOLENCE
INCIDENT,  ONE HUNDRED TWENTY-ONE, ONE HUNDRED THIRTY, ONE HUNDRED THIR-
TY-FIVE, ONE HUNDRED FIFTY, TWO HUNDRED THIRTY-FIVE, TWO HUNDRED  FORTY-
FIVE, TWO HUNDRED SIXTY, TWO HUNDRED SIXTY-THREE, TWO HUNDRED SIXTY-FIVE
OR ARTICLE FOUR HUNDRED OF THE PENAL LAW. AN ELIGIBLE OFFENSE SHALL ALSO
NOT  INCLUDE ANY ONE OR MORE OF THE FOLLOWING:  CRIMINAL SOLICITATION IN
THE FOURTH DEGREE AS DEFINED  BY  SUBDIVISION  TWO  OF  SECTION  100.05;
CONSPIRACY  IN THE FIFTH DEGREE AS DEFINED IN SECTION 105.05, PUNISHMENT
AS DEFINED IN SUBDIVISION SEVEN OF SECTION 110.05, CRIMINAL FACILITATION
IN THE FOURTH DEGREE AS DEFINED BY SECTION 115.00, CRIMINAL  OBSTRUCTION
OF  BREATHING OR BLOOD CIRCULATION AS DEFINED IN SECTION 121.11, ISSUING
ABORTIONAL ARTICLES AS DEFINED IN SECTION 125.60, CRIMINAL  MISCHIEF  IN
THE  FOURTH  DEGREE  AS DEFINED IN SECTION 145.00, CRIMINAL TAMPERING IN
THE SECOND DEGREE AS DEFINED IN SECTION 145.15, TAMPERING WITH A CONSUM-
ER PRODUCT IN THE SECOND DEGREE AS DEFINED IN  SECTION  145.40,  WELFARE

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD06526-11-3

S. 5385                             2

FRAUD  IN THE FIFTH DEGREE AS DEFINED IN SECTION 158.05, CRIMINAL USE OF
A PUBLIC BENEFIT CARD IN THE SECOND DEGREE AS DEFINED IN SECTION 158.30,
UNLAWFUL USE OF A CREDIT CARD, DEBIT CARD  OR  PUBLIC  BENEFIT  CARD  AS
DEFINED IN SECTION 165.17, FRAUDULENTLY OBTAINING A SIGNATURE AS DEFINED
IN  SECTION 165.20, FRAUDULENTLY ACCOSTING AS DEFINED IN SECTION 165.30,
FORGERY IN THE THIRD DEGREE  AS  DEFINED  IN  SECTION  170.05,  CRIMINAL
POSSESSION OF AN ANTI-SECURITY ITEM AS DEFINED IN SECTION 170.47, FALSI-
FYING  BUSINESS  RECORDS  IN  THE  SECOND  DEGREE  AS DEFINED IN SECTION
175.05, TAMPERING WITH PUBLIC RECORDS IN THE SECOND DEGREE AS DEFINED IN
SECTION 175.20, OFFERING A FALSE INSTRUMENT FOR  FILING  IN  THE  SECOND
DEGREE AS DEFINED IN SECTION 175.30, ISSUING A FALSE FINANCIAL STATEMENT
AS  DEFINED  IN  SECTION  175.45, INSURANCE FRAUD IN THE FIFTH DEGREE AS
DEFINED IN SECTION 176.10, HEALTH CARE FRAUD  IN  THE  FIFTH  DEGREE  AS
DEFINED  IN  SECTION  177.05, COMMERCIAL BRIBING IN THE SECOND DEGREE AS
DEFINED IN SECTION 180.00, COMMERCIAL  BRIBE  RECEIVING  IN  THE  SECOND
DEGREE AS DEFINED IN SECTION 180.05, RENT GOUGING IN THE THIRD DEGREE AS
DEFINED  IN SECTION 180.55, RENT GOUGING IN THE SECOND DEGREE AS DEFINED
IN SECTION 180.56, FRAUD IN INSOLVENCY AS  DEFINED  IN  SECTION  185.00,
FRAUD  INVOLVING A SECURITY INTEREST AS DEFINED IN SECTION 185.05, FRAU-
DULENT DISPOSITION OF MORTGAGED PROPERTY AS DEFINED IN  SECTION  185.10,
FRAUDULENT  DISPOSITION  OF  PROPERTY  SUBJECT  TO  A  CONDITIONAL  SALE
CONTRACT AS DEFINED IN SECTION 185.15, RESIDENTIAL MORTGAGE FRAUD IN THE
FIFTH DEGREE AS DEFINED IN  SECTION  187.05,  ISSUING  A  BAD  CHECK  AS
DEFINED  IN SECTION 190.05, CRIMINAL SALE OF A POLICE UNIFORM AS DEFINED
IN SECTION 190.27,  MISCONDUCT  BY  CORPORATE  OFFICIAL  AS  DEFINED  IN
SECTION  190.35,  MAKING A FALSE STATEMENT OF CREDIT TERMS AS DEFINED IN
SECTION 190.55, SCHEME TO DEFRAUD IN THE SECOND  DEGREE  AS  DEFINED  IN
SECTION  190.60,  SCHEME  TO  DEFRAUD  THE  STATE  BY UNLAWFULLY SELLING
PRESCRIPTIONS AS DEFINED IN SECTION 190.70, CRIMINAL USE  OF  AN  ACCESS
DEVICE IN THE SECOND DEGREE AS DEFINED IN SECTION 190.75, IDENTITY THEFT
IN THE THIRD DEGREE AS DEFINED IN SECTION 190.78, UNLAWFUL POSSESSION OF
A  SKIMMER  DEVICE  IN  THE  SECOND DEGREE AS DEFINED IN SECTION 190.85,
OFFICIAL MISCONDUCT AS DEFINED IN SECTION 195.00, KILLING OR INJURING  A
POLICE  ANIMAL  AS DEFINED IN SECTION 195.06, REFUSING TO AID A PEACE OR
POLICE OFFICER AS DEFINED IN SECTION 195.10, HARMING AN  ANIMAL  TRAINED
TO  AID  A  PERSON  WITH A DISABILITY IN THE SECOND DEGREE AS DEFINED IN
SECTION 195.11, HARMING AN ANIMAL TRAINED TO AID A PERSON WITH  A  DISA-
BILITY  IN  THE FIRST DEGREE AS DEFINED IN SECTION 195.12, ESCAPE IN THE
THIRD DEGREE AS DEFINED IN SECTION  205.05,  ABSCONDING  FROM  TEMPORARY
RELEASE  IN  THE  SECOND DEGREE AS DEFINED IN SECTION 205.16, ABSCONDING
FROM A FURLOUGH PROGRAM AS DEFINED IN SECTION 205.18,  PROMOTING  PRISON
CONTRABAND  IN THE SECOND DEGREE AS DEFINED IN SECTION 205.20, HINDERING
PROSECUTION IN THE THIRD DEGREE AS DEFINED IN SECTION 205.55, MAKING  AN
APPARENTLY  FALSE  SWORN  STATEMENT  IN  THE SECOND DEGREE AS DEFINED IN
SECTION 210.35, MAKING A PUNISHABLE FALSE WRITTEN STATEMENT  AS  DEFINED
IN  SECTION  210.45,  TAMPERING  WITH  A  WITNESS IN THE FORTH DEGREE AS
DEFINED IN SECTION 215.10, CRIMINAL CONTEMPT IN  THE  SECOND  DEGREE  AS
DEFINED  IN SECTION 215.50, CRIMINAL POSSESSION OF METHAMPHETAMINE MANU-
FACTURING MATERIAL IN THE SECOND DEGREE AS DEFINED  IN  SECTION  220.70,
PROMOTING  PROSTITUTION  IN  THE  FOURTH  DEGREE  AS  DEFINED IN SECTION
230.20, RIOT IN THE SECOND DEGREE AS DEFINED IN SECTION 240.05, INCITING
TO RIOT AS DEFINED IN SECTION 240.08, DISRUPTION  OR  DISTURBANCE  OF  A
RELIGIOUS  SERVICE,  FUNERAL,  BURIAL  OR MEMORIAL SERVICE AS DEFINED IN
SECTION 240.21, HARASSMENT IN THE FIRST DEGREE  AS  DEFINED  IN  SECTION
240.25,  CRIMINAL  NUISANCE  IN  THE SECOND DEGREE AS DEFINED BY SECTION
240.45, DISSEMINATING A FALSE REGISTERED SEX OFFENDER NOTICE AS  DEFINED

S. 5385                             3

IN  SECTION  240.48,  CRIMINAL INTERFERENCE WITH HEALTH CARE SERVICES OR
RELIGIOUS WORSHIP IN THE SECOND DEGREE AS  DEFINED  IN  SECTION  240.70,
INTERFERENCE,  HARASSMENT OR INTIMIDATION OF A SERVICE ANIMAL AS DEFINED
IN  SECTION  242.05,  HARMING  A  SERVICE ANIMAL IN THE SECOND DEGREE AS
DEFINED IN SECTION 242.10, DISSEMINATION  OF  AN  UNLAWFUL  SURVEILLANCE
IMAGE  IN THE SECOND DEGREE AS DEFINED IN SECTION 250.55, NON-SUPPORT OF
A CHILD IN THE SECOND DEGREE AS DEFINED IN SECTION 260.05,  MISREPRESEN-
TATION BY A CHILD DAY CARE PROVIDER AS DEFINED IN SECTION 260.31, UNLAW-
FULLY FLEEING A POLICE OFFICER IN A MOTOR VEHICLE IN THE THIRD DEGREE AS
DEFINED  IN  SECTION  270.25  OR  ANY  SPECIFIED  OFFENSE SUBJECT TO THE
PROVISION RELATING TO HATE CRIMES AS DEFINED IN SECTION  485.05  OF  THE
PENAL LAW.  ADDITIONALLY, AN ELIGIBLE OFFENSE SHALL NOT INCLUDE CRIMINAL
SOLICITATION,  CONSPIRACY,  ATTEMPT,  OR CRIMINAL FACILITATION TO COMMIT
ANY VIOLENT FELONY OFFENSE AS DEFINED IN SECTION 70.02 OF THE PENAL LAW,
OR ANY SEX OFFENSE AS DEFINED  UNDER  SUBDIVISION  TWO  OF  SECTION  ONE
HUNDRED  SIXTY-EIGHT-A  OF THE CORRECTION LAW.  "ELIGIBLE OFFENSE" SHALL
ALSO INCLUDE RECKLESS DRIVING, AS  DEFINED  BY  SECTION  TWELVE  HUNDRED
TWELVE OF THE VEHICLE AND TRAFFIC LAW;
  (B) ANY NON-CRIMINAL OFFENSE; OR
  (C) ANY YOUTHFUL OFFENDER ADJUDICATION.
  2.  A  PERSON HAVING A CONVICTION FOR NO MORE THAN THREE OFFENSES, WHO
DOES NOT STAND CONVICTED OF ANY FELONY, AND WHO IS NOT REQUIRED TO MAIN-
TAIN REGISTRATION UNDER ARTICLE SIX-C OF THE CORRECTION LAW,  MAY  PETI-
TION  THE  COURT WHICH ISSUED THE CONVICTION TO CONDITIONALLY SEAL UP TO
THREE ELIGIBLE OFFENSES WHEN:
  (A) AT LEAST FIVE YEARS HAVE PASSED SINCE THE COMPLETION OF A SENTENCE
ON AN ELIGIBLE OFFENSE; AND
  (B) SUCH PERSON HAS NOT BEEN CONVICTED OF A PENAL LAW  OFFENSE  DURING
THE LAST SEVEN YEARS AND IS NOT THE SUBJECT OF AN UNDISPOSED ARREST.
  3. THE PETITION AUTHORIZED BY THIS SECTION SHALL BE FILED IN THE COURT
OF  RECORD  THAT  IMPOSED  THE SENTENCE UPON PETITIONER FOR THE ELIGIBLE
OFFENSE. ON THE DEFENDANT'S MOTION, THE COURT WHICH IMPOSED THE SENTENCE
FOR THE ELIGIBLE OFFENSE MAY ORDER THAT THE OFFICIAL RECORDS AND  PAPERS
RELATING  TO  THE  ARREST,  PROSECUTION  AND  CONVICTION RECORDS FOR THE
MATTER WHICH THEY DISPOSED OF BE  CONDITIONALLY  SEALED.    ANY  SEALING
ORDERED PURSUANT TO THIS SECTION SHALL ALSO RENDER THE ASSOCIATED ARREST
A  NULLITY.    PRIOR  TO  SEALING  ANY  ARREST RECORDS, PROSECUTIONS, OR
CONVICTIONS:
  (A) THE SENTENCING COURT MUST REQUEST AND RECEIVE FROM THE DIVISION OF
CRIMINAL JUSTICE SERVICES OR THE FEDERAL BUREAU OF INVESTIGATION A FING-
ERPRINT BASED CRIMINAL HISTORY RECORD OF THE  DEFENDANT,  INCLUDING  ANY
SEALED  OR  SUPPRESSED  INFORMATION.  THE  DIVISION  OF CRIMINAL JUSTICE
SERVICES SHALL ALSO INCLUDE A CRIMINAL HISTORY REPORT, IF ANY, FROM  THE
FEDERAL  BUREAU OF INVESTIGATION REGARDING ANY CRIMINAL HISTORY INFORMA-
TION THAT OCCURRED  IN  OTHER  JURISDICTIONS.  THE  DIVISION  IS  HEREBY
AUTHORIZED TO RECEIVE SUCH INFORMATION FROM THE FEDERAL BUREAU OF INVES-
TIGATION  FOR  THIS  PURPOSE.  THE PARTIES SHALL BE PERMITTED TO EXAMINE
THESE RECORDS;
  (B) THE DEFENDANT OR COURT  MUST  IDENTIFY  THE  ELIGIBLE  OFFENSE  OR
OFFENSES FOR WHICH RELIEF MAY BE GRANTED;
  (C)  THE COURT MUST RECEIVE DOCUMENTATION THAT THE SENTENCE IMPOSED ON
THE ELIGIBLE OFFENSE OR ELIGIBLE OFFENSES HAS BEEN COMPLETED, OR  IF  NO
SUCH  DOCUMENTATION  IS REASONABLY AVAILABLE, A SWORN AFFIDAVIT THAT THE
SENTENCES IMPOSED ON THE PRIOR OFFENSES HAVE BEEN COMPLETED;

S. 5385                             4

  (D) THE DEFENDANT MUST PAY A TWO HUNDRED DOLLAR FILING FEE. THE FILING
FEE MAY BE WAIVED IN CASES OF INDIGENCE AS DETERMINED BY  THE  PRESIDING
JUDGE.
  4.  AT THE REQUEST OF THE DEFENDANT OR THE DISTRICT ATTORNEY THE COURT
MAY CONDUCT A HEARING TO  CONSIDER  AND  REVIEW  ANY  RELEVANT  EVIDENCE
OFFERED BY EITHER PARTY THAT WOULD AID THE COURT IN ITS DECISION WHETHER
TO  SEAL  THE  RECORDS  OF  THE  DEFENDANT'S  ARRESTS,  PROSECUTIONS AND
CONVICTIONS.  IN MAKING SUCH A DETERMINATION, THE COURT  SHALL  CONSIDER
ANY RELEVANT FACTORS, INCLUDING BUT NOT LIMITED TO:
  (A)  THE CIRCUMSTANCES AND SERIOUSNESS OF THE OFFENSE OR OFFENSES THAT
RESULTED IN THE CONVICTION OR CONVICTIONS;
  (B) THE CHARACTER OF THE DEFENDANT, INCLUDING WHAT STEPS THE PETITION-
ER HAS TAKEN SINCE THE TIME OF THE  OFFENSE  TOWARD  PERSONAL  REHABILI-
TATION,  INCLUDING  TREATMENT,  WORK,  SCHOOL, OR OTHER PERSONAL HISTORY
THAT DEMONSTRATES REHABILITATION;
  (C) THE DEFENDANT'S CRIMINAL HISTORY;
  (D) THE DEFENDANT'S CIVIC SERVICE RECORD;
  (E) THE IMPACT OF SEALING THE DEFENDANT'S  RECORDS  UPON  HIS  OR  HER
REHABILITATION  AND  HIS  OR  HER  SUCCESSFUL AND PRODUCTIVE REENTRY AND
REINTEGRATION INTO SOCIETY, AND ON PUBLIC SAFETY; AND
  (F) ANY STATEMENTS MADE BY THE VICTIM OF THE OFFENSE WHERE THERE IS IN
FACT A VICTIM OF THE CRIME.
  5. A DECISION GRANTING OR DENYING A MOTION UNDER THIS SECTION SHALL BE
MADE IN WRITING AND SHALL STATE THE  REASONS  FOR  THE  COURT'S  RULING,
UNLESS THE COURT GRANTS THE MOTION WITHOUT OBJECTION OR WRITTEN RESPONSE
BY  THE PROSECUTOR, IN WHICH CASE THE COURT MAY ISSUE AN ORDER WITHOUT A
WRITTEN DECISION. IF SEALING IS DENIED, THE  APPLICANT  MAY  APPEAL  THE
DECISION  IN  ACCORDANCE  WITH  SUBDIVISION  SIX OF THIS SECTION, OR THE
APPLICANT MAY REAPPLY AFTER THREE YEARS.
  6. EITHER PARTY MAY APPEAL AS OF RIGHT FROM  THE  COURT'S  ORDER.  THE
APPEALING  PARTY  MUST  SERVE  NOTICE  OF  APPEAL UPON THE COURT AND THE
OPPOSING PARTY WITHIN THIRTY DAYS OF THE ISSUANCE OF THE COURT ORDER. IF
THE ORDER IS APPEALED BY THE PROSECUTOR, SUCH NOTICE OF APPEAL SHALL  BE
DEEMED  A  STAY  OF  THE ORDER TO SEAL THE RECORDS. THE PROSECUTOR SHALL
PERFECT THE APPEAL WITHIN SIXTY DAYS, OR THE SEALING ORDER  SHALL  IMME-
DIATELY  TAKE EFFECT UNLESS THE COURT GRANTS AN EXTENSION OF THE TIME TO
PERFECT THE APPEAL UPON GOOD CAUSE SHOWN BY THE PROSECUTOR.  THE  APPEAL
SHALL  BE  TAKEN  TO  THE SAME COURT TO WHICH THE APPEAL OF THE ORIGINAL
CONVICTION COULD HAVE BEEN BROUGHT. THE STANDARD OF REVIEW AT THE INTER-
MEDIARY APPELLATE COURT SHALL BE ABUSE OF DISCRETION. THE DECISION OF AN
INTERMEDIARY APPELLATE COURT SHALL BE APPEALABLE TO THE COURT OF APPEALS
UPON LEAVE OF THE COURT.
  7. WHEN A COURT ORDERS SEALING PURSUANT TO THIS SECTION, ALL  OFFICIAL
RECORDS   AND   PAPERS   RELATING  TO  THE  ARRESTS,  PROSECUTIONS,  AND
CONVICTIONS, INCLUDING ALL DUPLICATES AND COPIES THEREOF, ON  FILE  WITH
THE  DIVISION  OF CRIMINAL JUSTICE SERVICES 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 FINGERPRINTS, PALM-
PRINTS, PHOTOGRAPHS, OR DIGITAL IMAGES OF THE SAME.
  8. WHEN THE COURT ORDERS SEALING PURSUANT TO THIS SECTION,  THE  CLERK
OF  SUCH COURT SHALL IMMEDIATELY NOTIFY THE COMMISSIONER OF THE DIVISION
OF CRIMINAL JUSTICE SERVICES AND THE  DEFENDANT  REGARDING  THE  RECORDS
THAT SHALL BE SEALED PURSUANT TO THIS SECTION.
  9. RECORDS SEALED PURSUANT TO THIS SUBDIVISION SHALL BE MADE AVAILABLE
TO:
  (A) THE DEFENDANT OR THE DEFENDANT'S DESIGNATED AGENT;

S. 5385                             5

  (B)  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 EXCEPT THAT RECORDS MAY NOT BE USED SOLELY FOR  LITI-
GATION PURPOSES;
  (C)  ANY  STATE OR LOCAL OFFICER OR AGENCY WITH RESPONSIBILITY FOR THE
ISSUANCE OF LICENSES TO POSSESS GUNS, WHEN THE PERSON HAS MADE  APPLICA-
TION FOR SUCH A LICENSE; OR
  (D)  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  PEACE
OFFICER  SHALL  BE  FURNISHED  WITH A COPY OF ALL RECORDS OBTAINED UNDER
THIS PARAGRAPH AND AFFORDED AN OPPORTUNITY TO MAKE AN EXPLANATION THERE-
TO.
  10. THE COURT SHALL NOT SEAL THE DEFENDANT'S RECORD PURSUANT  TO  THIS
SECTION WHILE ANY CHARGED OFFENSE IS PENDING.
  11. IF, SUBSEQUENT TO THE SEALING OF RECORDS PURSUANT TO THIS SUBDIVI-
SION, A PERSON WHO IS THE SUBJECT OF SUCH RECORDS IS FOUND GUILTY OF ANY
MISDEMEANOR OR FELONY OFFENSE, SUCH RECORDS SHALL BE UNSEALED IMMEDIATE-
LY AND REMAIN UNSEALED.
  12.  THE  RIGHT  TO  MAKE AN APPLICATION UNDER THIS SECTION MAY NOT BE
WAIVED AT THE TIME A GUILTY PLEA IS ENTERED ON  ANY  CASE  IN  NEW  YORK
STATE.
  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, 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

S. 5385                             6

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 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,  OR  BY A CONVICTION WHICH IS SEALED PURSUANT TO SECTION
160.65 OF THE CRIMINAL PROCEDURE LAW.
  S 4. 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 date.

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Senate Bill S5385

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Sponsored By

Lee M. Zeldin