NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A3197
SPONSOR: O'Donnell TITLE OF BILL:
An act to amend the criminal procedure law, in relation to the use of
sealed records
PURPOSE OR GENERAL IDEA OF BILL:
This bill would amend the Criminal Procedure Law (CPL) to clarify that
no record sealed under these statutes may be used for any purpose unless
authorized by law.
SUMMARY OF SPECIFIC PROVISIONS:
Section one of the bill amends paragraphs (c) and (d) of section
160.50(1) of the CPL. Section two of the bill amends paragraphs (c) and
(d) of section 160.55(1) of the CPL. Section three of the bill amends
subdivision 4 of section 160.58 of the CPL. Section four of the bill
amends subdivision 6 of section 160.58 of the CPL. Section five of the
bill amends subdivision 720.35(2) of the CPL.
Section six of the bill is the effective date.
JUSTIFICATION:
New York State has long provided for the sealing of information about
certain arrests, convictions and adjudications, because of the recogni-
tion that access to that information by employers and others would
unfairly prejudice decisions that could have a significant impact on the
life of the individuals who had that arrest, conviction or adjudication.
The State recognized that this impact would be counterproductive because
it would undermine the ability of these individuals to access employ-
ment, licensing and other benefits, thereby leaving these individuals
unable to be productive, tax paying members of their community, and
jeopardizing public safety.
However, a number of employers and government agencies learn about
arrests and convictions before they are sealed and then continue to use
the information after it has been sealed, thereby undermining the
purpose, of these statutes. The amendments above would remedy this situ-
ation by preventing employers, licensing and certification agencies, and
others from using the information once it had been sealed, except where
permitted by statute. This is a common sense amendment that ensures that
the legislature's intent in passing the sealing and confidentiality
statutes is fulfilled.
PRIOR LEGISLATIVE HISTORY:
A. 4391 (2021-22)
A. 6441 (2019-20)
A. 4925 (2017-18; to third reading 2018)
A. 5107 (2015-16);
A. 7683 (2013-14)(passed Assembly 2014)
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
None.
EFFECTIVE DATE:
This act shall take effect 90 days after it shall have become a law.
STATE OF NEW YORK
________________________________________________________________________
3197
2023-2024 Regular Sessions
IN ASSEMBLY
February 2, 2023
___________
Introduced by M. of A. O'DONNELL -- read once and referred to the
Committee on Codes
AN ACT to amend the criminal procedure law, in relation to the use of
sealed records
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Paragraphs (c) and (d) of subdivision 1 of section 160.50
2 of the criminal procedure law, paragraph (c) as amended by chapter 169
3 of the laws of 1994, paragraph (d) as amended by chapter 449 of the laws
4 of 2015, are amended to read as follows:
5 (c) all official records and papers, including judgments and orders of
6 a court but not including published court decisions or opinions or
7 records and briefs on appeal, relating to the arrest or prosecution,
8 including all duplicates and copies thereof, on file with the division
9 of criminal justice services, any court, police agency, or prosecutor's
10 office shall be sealed and not made available to, or used for any
11 purpose not specifically authorized by law by any person or public or
12 private agency, even if the records were previously obtained by such
13 person or public or private agency;
14 (d) [such] the records referred to in paragraph (c) of this subdivi-
15 sion shall only be made available to, and may only be used by, the
16 person accused or to such person's designated agent, and shall only be
17 made available to, and may only be used by: (i) a prosecutor in any
18 proceeding in which the accused has moved for an order pursuant to
19 section 170.56 or 210.46 of this [chapter] part, or (ii) a law enforce-
20 ment agency upon ex parte motion in any superior court, or in any
21 district court, city court or the criminal court of the city of New York
22 provided that such court sealed the record, if such agency demonstrates
23 to the satisfaction of the court that justice requires that such records
24 be made available to it, or (iii) any state or local officer or agency
25 with responsibility for the issuance of licenses to possess guns, when
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD01778-01-3
A. 3197 2
1 the accused has made application for such a license, or (iv) the New
2 York state department of corrections and community supervision when the
3 accused is on parole supervision as a result of conditional release or a
4 parole release granted by the New York state board of parole, and the
5 arrest which is the subject of the inquiry is one which occurred while
6 the accused was under such supervision, or (v) any prospective employer
7 of a police officer or peace officer as those terms are defined in
8 subdivisions thirty-three and thirty-four of section 1.20 of this chap-
9 ter, in relation to an application for employment as a police officer or
10 peace officer; provided, however, that every person who is an applicant
11 for the position of police officer or peace officer shall be furnished
12 with a copy of all records obtained under this paragraph and afforded an
13 opportunity to make an explanation thereto, or (vi) the probation
14 department responsible for supervision of the accused when the arrest
15 which is the subject of the inquiry is one which occurred while the
16 accused was under such supervision; and
17 § 2. Paragraphs (c) and (d) of subdivision 1 of section 160.55 of the
18 criminal procedure law, paragraph (c) as amended by chapter 169 of the
19 laws of 1994, paragraph (d) as amended by chapter 449 of the laws of
20 2015, are amended to read as follows:
21 (c) all official records and papers relating to the arrest or prose-
22 cution, including all duplicates and copies thereof, on file with the
23 division of criminal justice services, police agency, or prosecutor's
24 office shall be sealed and not made available to, or used for any
25 purpose not specifically authorized by law by any person or public or
26 private agency, even if the records were previously obtained by such
27 person or public or private agency;
28 (d) the records referred to in paragraph (c) of this subdivision shall
29 be made available to, and may only be used by, the person accused or to
30 such person's designated agent, and shall only be made available to, and
31 may only be used by: (i) a prosecutor in any proceeding in which the
32 accused has moved for an order pursuant to section 170.56 or 210.46 of
33 this [chapter] part, or (ii) a law enforcement agency upon ex parte
34 motion in any superior court, or in any district court, city court or
35 the criminal court of the city of New York provided that such court
36 sealed the record, if such agency demonstrates to the satisfaction of
37 the court that justice requires that such records be made available to
38 it, or (iii) any state or local officer or agency with responsibility
39 for the issuance of licenses to possess guns, when the accused has made
40 application for such a license, or (iv) the New York state department of
41 corrections and community supervision when the accused is under parole
42 supervision as a result of conditional release or parole release granted
43 by the New York state board of parole and the arrest which is the
44 subject of the inquiry is one which occurred while the accused was under
45 such supervision, or (v) the probation department responsible for super-
46 vision of the accused when the arrest which is the subject of the
47 inquiry is one which occurred while the accused was under such super-
48 vision, or (vi) a police agency, probation department, sheriff's office,
49 district attorney's office, department of correction of any municipality
50 and parole department, for law enforcement purposes, upon arrest in
51 instances in which the individual stands convicted of harassment in the
52 second degree, as defined in section 240.26 of the penal law, committed
53 against a member of the same family or household as the defendant, as
54 defined in subdivision one of section 530.11 of this chapter, and deter-
55 mined pursuant to subdivision eight-a of section 170.10 of this title;
56 and
A. 3197 3
1 § 3. Subdivision 4 of section 160.58 of the criminal procedure law, as
2 added by section 3 of part AAA of chapter 56 of the laws of 2009, is
3 amended to read as follows:
4 4. When a court orders sealing pursuant to this section, all official
5 records and papers relating to the arrests, prosecutions, and
6 convictions, including all duplicates and copies thereof, on file with
7 the division of criminal justice services or any court shall be sealed
8 and not made available to, or used for any purpose not specifically
9 authorized by law by, any person or public or private agency, even if
10 the records were previously obtained by such person or public or private
11 agency; provided, however, the division shall retain any fingerprints,
12 palmprints and photographs, or digital images of the same.
13 § 4. Subdivision 6 of section 160.58 of the criminal procedure law, as
14 added by section 3 of part AAA of chapter 56 of the laws of 2009, is
15 amended to read as follows:
16 6. Records sealed pursuant to this subdivision shall only be made
17 available to, and may only be used by:
18 (a) the defendant or the defendant's designated agent;
19 (b) qualified agencies, as defined in subdivision nine of section
20 eight hundred thirty-five of the executive law, and federal and state
21 law enforcement agencies, when acting within the scope of their law
22 enforcement duties; or
23 (c) any state or local officer or agency with responsibility for the
24 issuance of licenses to possess guns, when the person has made applica-
25 tion for such a license; or
26 (d) any prospective employer of a police officer or peace officer as
27 those terms are defined in subdivisions thirty-three and thirty-four of
28 section 1.20 of this chapter, in relation to an application for employ-
29 ment as a police officer or peace officer; provided, however, that every
30 person who is an applicant for the position of police officer or peace
31 officer shall be furnished with a copy of all records obtained under
32 this paragraph and afforded an opportunity to make an explanation there-
33 to.
34 § 5. Subdivision 2 of section 720.35 of the criminal procedure law, as
35 amended by section 87 of subpart B of part C of chapter 62 of the laws
36 of 2011, is amended to read as follows:
37 2. Except where specifically required or permitted by statute or upon
38 specific authorization of the court, all official records and papers,
39 whether on file with the court, a police agency or the division of crim-
40 inal justice services, relating to a case involving a youth who has been
41 adjudicated a youthful offender, are confidential and may not be made
42 available to, or used for any purpose not specifically authorized by law
43 by, any person or public or private agency, even if the records were
44 previously obtained by such person or public or private agency, other
45 than the designated educational official of the public or private
46 elementary or secondary school in which the youth is enrolled as a
47 student provided that such local educational official shall only have
48 made available a notice of such adjudication and shall not have access
49 to any other official records and papers, such youth or such youth's
50 designated agent (but only where the official records and papers sought
51 are on file with a court and request therefor is made to that court or
52 to a clerk thereof), an institution to which such youth has been commit-
53 ted, the department of corrections and community supervision and a
54 probation department of this state that requires such official records
55 and papers for the purpose of carrying out duties specifically author-
56 ized by law; provided, however, that information regarding an order of
A. 3197 4
1 protection or temporary order of protection issued pursuant to section
2 530.12 of this [chapter] part or a warrant issued in connection there-
3 with may be maintained on the statewide automated order of protection
4 and warrant registry established pursuant to section two hundred twen-
5 ty-one-a of the executive law during the period that such order of
6 protection or temporary order of protection is in full force and effect
7 or during which such warrant may be executed. Such confidential informa-
8 tion may be made available pursuant to law only for purposes of adjudi-
9 cating or enforcing such order of protection or temporary order of
10 protection and, where provided to a designated educational official, as
11 defined in section 380.90 of this chapter, for purposes related to the
12 execution of the student's educational plan, where applicable, success-
13 ful school adjustment and reentry into the community. Such notification
14 shall be kept separate and apart from such student's school records and
15 shall be accessible only by the designated educational official. Such
16 notification shall not be part of such student's permanent school record
17 and shall not be appended to or included in any documentation regarding
18 such student and shall be destroyed at such time as such student is no
19 longer enrolled in the school district. At no time shall such notifica-
20 tion be used for any purpose other than those specified in this subdivi-
21 sion.
22 § 6. This act shall take effect on the ninetieth day after it shall
23 have become a law.
