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A07461 Summary:

BILL NOA07461A
 
SAME ASSAME AS S00420-A
 
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 NOA07461A
 
04/26/2017referred to codes
01/03/2018referred to codes
02/21/2018amend and recommit to codes
02/21/2018print number 7461a
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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: A7461A
 
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: 2018: A.7461 - Referred to Codes 2017: A.7461 - Referred to Codes   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--A
 
                               2017-2018 Regular Sessions
 
                   IN ASSEMBLY
 
                                     April 26, 2017
                                       ___________
 
        Introduced by M. of A. ABBATE -- read once and referred to the Committee
          on  Codes  -- recommitted to the Committee on Codes in accordance with
          Assembly Rule 3, sec. 2 -- committee discharged, bill amended, ordered
          reprinted as amended and recommitted to said committee
 
        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
    24  for  the  position of police officer or peace officer shall be furnished
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD05064-02-8

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

        A. 7461--A                          3
 
     1  person  who  is an applicant for the position of police officer or peace
     2  officer shall be furnished with a copy of  all  records  obtained  under
     3  this paragraph and afforded an opportunity to make an explanation there-
     4  to[.] ; or
     5    (e) any police department or law enforcement agency, in relation to an
     6  application  for employment by such police department or law enforcement
     7  agency; provided, however, that every applicant shall be furnished  with
     8  a  copy  of  all  records  obtained under this paragraph and afforded an
     9  opportunity to make an explanation thereto.
    10    § 4. Subdivision 16 of section 296 of the executive law, as amended by
    11  section 48-a of part WWW of chapter 59 of the laws of 2017,  is  amended
    12  to read as follows:
    13    16.  It  shall  be an unlawful discriminatory practice, unless specif-
    14  ically required or permitted by statute, for any person, agency, bureau,
    15  corporation or association, including the state and any political subdi-
    16  vision thereof, to make any inquiry about, whether in any form of appli-
    17  cation or  otherwise,  or  to  act  upon  adversely  to  the  individual
    18  involved,  any arrest or criminal accusation of such individual not then
    19  pending against that individual which was followed by a  termination  of
    20  that  criminal  action  or  proceeding  in  favor of such individual, as
    21  defined in subdivision two of section 160.50 of the  criminal  procedure
    22  law,  or  by a youthful offender adjudication, as defined in subdivision
    23  one of section 720.35 of the criminal procedure law, or by a  conviction
    24  for a violation sealed pursuant to section 160.55 of the criminal proce-
    25  dure  law  or by a conviction which is sealed pursuant to section 160.59
    26  or 160.58 of the criminal procedure law, in connection with the  licens-
    27  ing,  employment or providing of credit or insurance to such individual;
    28  provided, further, that no person shall be required to divulge  informa-
    29  tion  pertaining to any arrest or criminal accusation of such individual
    30  not then pending against that individual which was followed by a  termi-
    31  nation  of  that criminal action or proceeding in favor of such individ-
    32  ual, as defined in subdivision two of section  160.50  of  the  criminal
    33  procedure  law,  or  by  a youthful offender adjudication, as defined in
    34  subdivision one of section 720.35 of the criminal procedure law, or by a
    35  conviction for a violation sealed pursuant  to  section  160.55  of  the
    36  criminal  procedure  law, or by a conviction which is sealed pursuant to
    37  section 160.58 or 160.59 of the criminal procedure law.  The  provisions
    38  of  this  subdivision  shall  not  apply  to the licensing activities of
    39  governmental bodies in relation to the regulation of guns, firearms  and
    40  other  deadly weapons or in relation to an application for employment as
    41  a police officer or peace officer as those terms are defined in subdivi-
    42  sions thirty-three and thirty-four  of  section  1.20  of  the  criminal
    43  procedure  law  or in relation to an application  for employment for any
    44  position in  a  police  department  or  other  law  enforcement  agency;
    45  provided further that the provisions of this subdivision shall not apply
    46  to  an  application  for employment or membership in any law enforcement
    47  agency with respect to any  arrest  or  criminal  accusation  which  was
    48  followed  by a youthful offender adjudication, as defined in subdivision
    49  one of section 720.35 of the criminal procedure law, or by a  conviction
    50  for a violation sealed pursuant to section 160.55 of the criminal proce-
    51  dure  law, or by a conviction which is sealed pursuant to section 160.58
    52  or 160.59 of the criminal procedure law.
    53    § 5. This act shall take effect on the ninetieth day  after  it  shall
    54  have become a law.
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