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A07461 Summary:

BILL NOA07461
 
SAME ASSAME AS S00420
 
SPONSORAbbate
 
COSPNSR
 
MLTSPNSR
 
Amd 160.50, 160.55 & 160.58, CP L; amd 296, Exec L
 
Permits disclosure of arrest and prosecution records of applicants for employment by police departments and other law enforcement agencies.
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A07461 Actions:

BILL NOA07461
 
04/26/2017referred to codes
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A07461 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A7461
 
SPONSOR: Abbate
  TITLE OF BILL: An act to amend the criminal procedure law and the executive law, in relation to disclosure of arrest and prosecution records of applicants for employment by police departments and other law enforcement agencies   PURPOSE OR GENERAL IDEA OF BILL: To allow the disclosure of criminal histories of all applicants for employment by police departments and other law enforcement agencies.   SUMMARY OF PROVISIONS: Section one of the bill amends Criminal Procedure Law section 160.50(1)(d) to provide that criminal records sealed pursuant to this section shall be made available to a police department or law enforce- ment agency when an employment application has been made by the person accused of criminal activity. Any records obtained must also be provided to the applicant and the applicant shall be afforded the opportunity to provide an explanation. Section two of the bill amends Criminal Procedure Law section 160.55(1)(d) to provide that criminal records sealed pursuant to this section shall be made available to a police department or law enforce- ment agency when an employment application has been made by the person accused of criminal activity. Any records obtained must also be provided to the applicant and the applicant shall be afforded the opportunity to provide an explanation. Section three of the bill amends Criminal Procedure Law section 160.58 regarding sealed convictions for marihuana and certain controlled substances to allow disclosure to police departments and law enforcement agencies in relation to an application for employment. Any records obtained must also be provided to the applicant and the applicant shall be afforded the opportunity to provide an explanation. Section four of the bill amends Executive Law section 296(16), which is the Human Rights Law, to provide that it shall not be an unlawful discriminatory practice for a police department or law enforcement agen- cy to inquire about a criminal accusation or arrest of an applicant that is not followed by a youthful offender adjudication or is sealed, pursu- ant to Criminal procedure Law sections 160.55 or 160.58. Section five of the bill provides that this act shall take effect on the ninetieth day after it shall have become a law.   EXISTING LAW: Currently, both sections of the Criminal Procedure Law being amended by this bill provide that sealed criminal records regarding a person may be made available to certain entities in certain specified situations. These situations include disclosure to the prospective employer of a police officer or peace officer in relation to an application for employment as a police officer or peace officer and to the State or local officer responsible for the issuance of licenses to possess a gun. Additionally, the Human Rights Law provides that it is not an unlawful discriminatory practice for an agency, in connection with an application for employment as a police officer or peace officer, to inquire about certain arrests or criminal accusations concerning the applicant.   JUSTIFICATION: It is critically important that police departments and other law enforcement agencies have the ability to conduct thorough background checks on potential employees. Current law provides an ability to do so when the applicant is a potential police officer or peace officer. Pursuant to Criminal Procedure Law section 160.50(1)(d), police depart- ments and law enforcement agencies may receive criminal histories that include cases sealed that were terminated in favor.of the accused and sealed pursuant to such section. However, under current law, police departments and law enforcement agen- cies may not obtain disclosure of records that were sealed under the provisions of Criminal Procedure Law section 160.55 for applicants seek- ing employment by the police department or law enforcement agency. This anomalous result, where law enforcement is authorized to obtain records of sealed acquittals but not sealed convictions, must be corrected. Further, in neither case are the records of potential civilian employees of law enforcement agencies made available. Employment by a police agen- cy is by definition sensitive in nature. Civilian employees may have access to highly confidential information and, may occupy positions of trust, with the availability to take enforcement action or make deci- sions affecting agency operations and policy. Police agencies are responsible for both conventional crime fighting and counter terrorism efforts, and it is vitally important that these agencies obtain as much information about potential employees as is possible before a law enforcement agency entrusts them with responsibility for public safety.   PRIOR LEGISLATIVE HISTORY: 2016: S.1450-A - Referred to Codes 2015: S.1450 - Referred to Codes 2014: S.4071 - Referred to Codes 2013: S.4071 - Passed the Senate 2012: S.1423 - Referred to Codes 2011: S.1423 - Passed the Senate 2009 - 2010: S.2101 - Referred to Codes both years 2007 - 2008: S.4268-A - Passed the Senate both years 2006: S.7927 - Passed the Senate   FISCAL IMPLICATIONS: None.   EFFECTIVE DATE: This act shall take effect on the ninetieth day after it shall have become a law.
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A07461 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          7461
 
                               2017-2018 Regular Sessions
 
                   IN ASSEMBLY
 
                                     April 26, 2017
                                       ___________
 
        Introduced by M. of A. ABBATE -- read once and referred to the Committee
          on Codes
 
        AN  ACT  to  amend  the criminal procedure law and the executive law, in
          relation to disclosure of arrest and prosecution records of applicants
          for employment by police departments and other law  enforcement  agen-
          cies

          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. Paragraph (d) of subdivision 1 of  section  160.50  of  the
     2  criminal  procedure  law, as amended by chapter 449 of the laws of 2015,
     3  is amended to read as follows:
     4    (d) such records shall be made available to the person accused  or  to
     5  such  person's  designated  agent,  and shall be made available to (i) a
     6  prosecutor in any proceeding in which the accused has moved for an order
     7  pursuant to section 170.56 or 210.46 of this  chapter,  or  (ii)  a  law
     8  enforcement agency upon ex parte motion in any superior court, or in any
     9  district court, city court or the criminal court of the city of New York
    10  provided  that such court sealed the record, if such agency demonstrates
    11  to the satisfaction of the court that justice requires that such records
    12  be made available to it, or (iii) any state or local officer  or  agency
    13  with  responsibility  for the issuance of licenses to possess guns, when
    14  the accused has made application for such a license,  or  (iv)  the  New
    15  York  state department of corrections and community supervision when the
    16  accused is on parole supervision as a result of conditional release or a
    17  parole release granted by the New York state board of  parole,  and  the
    18  arrest  which  is the subject of the inquiry is one which occurred while
    19  the accused was under such supervision, or (v) any prospective  employer
    20  of  a  police  officer  or  peace  officer as those terms are defined in
    21  subdivisions thirty-three and thirty-four of section 1.20 of this  chap-
    22  ter, in relation to an application for employment as a police officer or
    23  peace  officer; provided, however, that every person who is an applicant

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD05064-01-7

        A. 7461                             2
 
     1  for the position of police officer or peace officer shall  be  furnished
     2  with a copy of all records obtained under this paragraph and afforded an
     3  opportunity  to make an explanation thereto, or (vi) a police department
     4  or  other  law  enforcement agency, in relation to an application by the
     5  person accused for employment by such agency  or  department;  provided,
     6  however,  that  every  such person shall be furnished with a copy of all
     7  records obtained under this paragraph and  afforded  an  opportunity  to
     8  make an explanation thereto, or (vii) the probation department responsi-
     9  ble  for supervision of the accused when the arrest which is the subject
    10  of the inquiry is one which occurred while the accused  was  under  such
    11  supervision; and
    12    §  2. Paragraph (d) of subdivision 1 of section 160.55 of the criminal
    13  procedure law, as amended by chapter 449 of the laws of 2015, is amended
    14  to read as follows:
    15    (d) the records referred to in paragraph (c) of this subdivision shall
    16  be made available to the person accused or to such  person's  designated
    17  agent, and shall be made available to (i) a prosecutor in any proceeding
    18  in  which  the accused has moved for an order pursuant to section 170.56
    19  or 210.46 of this chapter, or (ii) a  law  enforcement  agency  upon  ex
    20  parte motion in any superior court, or in any district court, city court
    21  or  the  criminal court of the city of New York provided that such court
    22  sealed the record, if such agency demonstrates to  the  satisfaction  of
    23  the  court  that justice requires that such records be made available to
    24  it, or (iii) any state or local officer or  agency  with  responsibility
    25  for  the issuance of licenses to possess guns, when the accused has made
    26  application for such a license, or (iv) the New York state department of
    27  corrections and community supervision when the accused is  under  parole
    28  supervision as a result of conditional release or parole release granted
    29  by  the  New  York  state  board  of  parole and the arrest which is the
    30  subject of the inquiry is one which occurred while the accused was under
    31  such supervision, or (v) the probation department responsible for super-
    32  vision of the accused when the  arrest  which  is  the  subject  of  the
    33  inquiry  is  one  which occurred while the accused was under such super-
    34  vision, or (vi) a police agency, probation department, sheriff's office,
    35  district attorney's office, department of correction of any municipality
    36  and parole department, for law  enforcement  purposes,  upon  arrest  in
    37  instances  in which the individual stands convicted of harassment in the
    38  second degree, as defined in section 240.26 of the penal law,  committed
    39  against  a  member  of the same family or household as the defendant, as
    40  defined in subdivision one of section 530.11 of this chapter, and deter-
    41  mined pursuant to subdivision eight-a of section 170.10 of  this  title;
    42  or  (vii)  a  police  department  or  other  law  enforcement agency, in
    43  relation to an application by the person accused for employment by  such
    44  agency or department; provided, however, that every such person shall be
    45  furnished  with  a copy of all records obtained under this paragraph and
    46  afforded an opportunity to make an explanation thereto; and
    47    § 3. Paragraphs (c) and (d) of subdivision 6 of section 160.58 of  the
    48  criminal  procedure law, as added by section 3 of part AAA of chapter 56
    49  of the laws of 2009, are amended and a new paragraph  (e)  is  added  to
    50  read as follows:
    51    (c)  any  state or local officer or agency with responsibility for the
    52  issuance of licenses to possess guns, when the person has made  applica-
    53  tion for such a license; [or]
    54    (d)  any  prospective employer of a police officer or peace officer as
    55  those terms are defined in subdivisions thirty-three and thirty-four  of
    56  section  1.20 of this chapter, in relation to an application for employ-

        A. 7461                             3
 
     1  ment as a police officer or peace officer; provided, however, that every
     2  person who is an applicant for the position of police officer  or  peace
     3  officer  shall  be  furnished  with a copy of all records obtained under
     4  this paragraph and afforded an opportunity to make an explanation there-
     5  to[.] ; or
     6    (e) any police department or law enforcement agency, in relation to an
     7  application  for employment by such police department or law enforcement
     8  agency; provided, however, that every applicant shall be furnished  with
     9  a  copy  of  all  records  obtained under this paragraph and afforded an
    10  opportunity to make an explanation thereto.
    11    § 4. Subdivision 16 of section 296 of the executive law, as separately
    12  amended by section 3 of part N and section 14 of part AAA of chapter  56
    13  of the laws of 2009, is amended to read as follows:
    14    16.  It  shall  be an unlawful discriminatory practice, unless specif-
    15  ically required or permitted by statute, for any person, agency, bureau,
    16  corporation or association, including the state and any political subdi-
    17  vision thereof, to make any inquiry about, whether in any form of appli-
    18  cation or  otherwise,  or  to  act  upon  adversely  to  the  individual
    19  involved,  any arrest or criminal accusation of such individual not then
    20  pending against that individual which was followed by a  termination  of
    21  that  criminal  action  or  proceeding  in  favor of such individual, as
    22  defined in subdivision two of section 160.50 of the  criminal  procedure
    23  law,  or  by a youthful offender adjudication, as defined in subdivision
    24  one of section 720.35 of the criminal procedure law, or by a  conviction
    25  for a violation sealed pursuant to section 160.55 of the criminal proce-
    26  dure  law  or by a conviction which is sealed pursuant to section 160.58
    27  of the criminal procedure law, in connection with the licensing, employ-
    28  ment or providing of credit or insurance to such  individual;  provided,
    29  further,  that  no  person  shall  be  required  to  divulge information
    30  pertaining to any arrest or criminal accusation of such  individual  not
    31  then pending against that individual which was followed by a termination
    32  of  that  criminal  action or proceeding in favor of such individual, as
    33  defined in subdivision two of section 160.50 of the  criminal  procedure
    34  law,  or  by a youthful offender adjudication, as defined in subdivision
    35  one of section 720.35 of the criminal procedure law, or by a  conviction
    36  for a violation sealed pursuant to section 160.55 of the criminal proce-
    37  dure  law, or by a conviction which is sealed pursuant to section 160.58
    38  of the criminal procedure law. The provisions of this subdivision  shall
    39  not apply to the licensing activities of governmental bodies in relation
    40  to  the  regulation  of  guns,  firearms  and other deadly weapons or in
    41  relation to an application for employment as a police officer  or  peace
    42  officer  as  those  terms  are  defined in subdivisions thirty-three and
    43  thirty-four of section 1.20 of the criminal procedure law or in relation
    44  to an application  for employment for any position in a  police  depart-
    45  ment  or  other  law  enforcement  agency;  provided  further  that  the
    46  provisions of this subdivision shall not apply  to  an  application  for
    47  employment  or  membership in any law enforcement agency with respect to
    48  any arrest or criminal accusation  which  was  followed  by  a  youthful
    49  offender  adjudication,  as defined in subdivision one of section 720.35
    50  of the criminal procedure law, or by a conviction for a violation sealed
    51  pursuant to section 160.55 of  the  criminal  procedure  law,  or  by  a
    52  conviction  which  is  sealed pursuant to section 160.58 of the criminal
    53  procedure law.
    54    § 5. This act shall take effect on the ninetieth day  after  it  shall
    55  have become a law.
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