A03381 Summary:

BILL NO    A03381 

SAME AS    SAME AS S01395

SPONSOR    Aubry

COSPNSR    

MLTSPNSR   Perry

Add S845-c, Exec L; amd S212, Judy L

Provides that when the division of criminal justice services conducts a search
of it's criminal history records and returns a report thereon, all references
to undisposed cases shall be excluded.
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A03381 Actions:

BILL NO    A03381 

01/25/2013 referred to codes
01/08/2014 referred to codes
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A03381 Memo:

BILL NUMBER:A3381

TITLE OF BILL:  An act to amend the executive law and the judiciary law,
in relation to undisposed cases

PURPOSE:  This  bill will require DCJS and OCA to refrain from including
undisposed case information on criminal history  record  reports  except
for law enforcement and other specified purposes.

SUMMARY OF PROVISIONS: Section 1 of the bill adds a new section 845-c to
the Executive Law to prohibit DCJS from including undisposed case infor-
mation  on  criminal  history record reports (i.e., rapsheets) where the
report is produced for a non-law  enforcement  or  non-criminal  justice
purpose.  The  bill  defines  "undisposed  case" as a criminal action or
proceeding or an arrest incident that appears on an individual's  crimi-
nal  history  record  for  which  no conviction, sentence or other final
disposition (other than an apparently unexecuted bench warrant)  appears
and  with respect to which no entry has been made on the DCJS record for
a period of at least five years.  The prohibition also would  not  apply
to  records  produced  by DCJS solely for bona fide research or internal
recordkeeping purposes.

Section 2 of the bill establishes a corresponding requirement  for  OCA.
It  adds  a  new  paragraph (s) to subdivision two of section 212 of the
Judiciary Law to require OCA to refrain from reporting undisposed  cases
on  criminal  history  reports  it  produces  except where the report is
prepared for internal recordkeeping or bona fide research purposes.

Section 3 of the bill provides that the act shall take effect  180  days
after  it  shall  have become a law, and further provides that, prior to
such effective date, DCJS in consultation with OCA shall undertake meas-
ures to update its criminal history records with respect to  cases  that
have no final disposition reported.

EXISTING  LAW: DCJS is the state repository for criminal history records
and is permitted or required  under  law  in  certain  circumstances  to
search  its  records  and  produce  a report on an individual's criminal
history record (i.e., a "rapsheet"). Similarly, OCA is authorized  under
law  to  search  its  criminal court case records and produce a criminal
history record report on the individual whose record is searched.  Under
Criminal  Procedure  Law S 160.50 records pertaining to criminal actions
that have been terminated in favor of the accused are to be sealed  and,
subject  to  certain  exceptions, are not to be released by DCJS or OCA.
These include cases that, following the transmission of  arrest  finger-
prints  to  DCJS, prosecutors elect not to prosecute (CPL S160.5(3) (i))
and arrests that the police elect not to pursue (CPL S 160.50(3) (j)).

JUSTIFICATION:  Although the law provides for  the  sealing  of  certain
records,  in some cases, administrative failures occur, leaving informa-
tion about cases that have ended in a person's favor, or have been filed
in court but never brought to any final  disposition,  unsealed  on  the
person's  permanent criminal history record maintained by DCJS. Attempts

to correct these errors and eliminate undisposed case  references  often
prove  unsuccessful because no information about the cases can be found,
either because  the  parties  involved  have  destroyed  their  records,
because  no records have been generated due to the preliminary nature of
the case or because the case in question has been  deemed  dismissed  by
another  court as a result of action taken in an entirely separate case.
Examples of this include cases where preliminary arrest information  but
no  other information, not even a docket number, appears on the criminal
history record. The absence of a docket number on a rap sheet  where  an
arrest  is  indicated  may  signify that, after the submission of arrest
fingerprints to DCJS, the prosecutor has elected not  to  prosecute  the
case,  or  the police have elected not to pursue the arrest. Other exam-
ples include cases where a court docket number appears  but  no  further
action  on  the  case is reflected. In cases actively moving through the
court  system,  actions  taken  in  the  case  arraignments,  transfers,
removals,  indictments,  bench warrants - usually appear on the person's
criminal history record. When an arrest incident appears or a  case  has
been  docketed  but no action has been taken for a period of five years,
and no warrant has been issued, the case should likely have either  been
dismissed  (as  statutory  speedy  trial requirements would dictate that
trial or some other action take place within  that  time)  or  otherwise
disposed of.

In  an  age  where  the  criminal  history  background  check  is almost
universal, New York's sealing laws act as a guard against illegal  work-
place  discrimination  by preventing the inappropriate disclosure or use
by employers or licensing agencies of records of, arrest  that  resulted
either  in a violation (non-criminal) conviction or were terminated in a
person's favor. However, the sealing laws  are  only  effective  if  the
various  entities in the criminal justice system effectively communicate
with each other.

According to the Criminal Procedural  Law,  the  arresting  agency,  the
district  attorney, the cleric of the court, and OCA are all responsible
for reporting to DCJS that certain criminal actions ended in a  person's
favor.  Administrative  failures  do occur, however, and sometimes these
agencies fail to update DCJS as required.  Since  there  is  no  current
system  for  ensuring  that  agencies  update DCJS, many records at DCJS
remain inaccurate for an extended period of time without anyone's  know-
ledge.  As  DCJS cannot currently act to correct or complete the records
without information from the relevant  agency,  these  inaccuracies,  in
effect,  become  permanent  once enough time has passed for the criminal
justice agency involved to  be  able  to  destroy  the  original  record
according to its own record retention schedule.  In situations where the
case has been terminated in a person's favor, the original record may be
destroyed  after  only  six years by the courts and OCA. Other agencies,
including the police and the District Attorneys' Offices, have their own
record retention schedules. As a result, people with permanent inaccura-
cies on their rap sheet are in limbo: they cannot contest inaccurate  or
incomplete  information on their rap sheet or criminal history record if
the necessary correctives (the original records) have been purged or are
otherwise  unavailable  or  incomplete.  Such  people  also   lose   the

protections  they  may  be entitled to under New York State sealing laws
and the Federal and New York State Fair Credit Reporting Acts. The fail-
ure in communication among the various  criminal  justice  agencies  has
caused  countless  individuals  to lose employment, benefits and housing
opportunities.

To remedy the problem, this measure would prohibit  DCJS  and  OCA  from
including  "undisposed case" information, as defined by the bill, in any
report of a criminal history search conducted by the agency except where
the report is produced by DCJS for a "qualified agency" (or a federal or
state law enforcement agency) for a criminal justice purpose, or by DCJS
or OCA for a bona fide research or internal recordkeeping purpose. In so
doing, the bill will effectively  address  the  administrative  failures
described above and will help many New Yorkers lead productive, law-bid-
ing lives.

LEGISLATIVE  HISTORY:  A.8222 was reported and referred to rules in 2009
and was referred to codes in 2010.   A.6471a  amended  and  referred  to
codes in 2011 and referred to codes in 2012.

FISCAL IMPLICATIONS: To be determined,

EFFECTIVE DATE:  This act shall take effect on the one hundred eightieth
day  after  it  shall  have  become a law and shall apply to searches of
criminal history records conducted on  or  after  such  date;  provided,
however,  that  prior  to  such effective date, the division of criminal
justice services, in consultation with the state  administrator  of  the
unified court system as well as any other public or private agency,shall
undertake  such  measures  as may be necessary and appropriate to update
its criminal history records with respect to criminal cases  and  arrest
incidents for which no final disposition has to be reported.
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A03381 Text:

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

                                         3381

                              2013-2014 Regular Sessions

                                 I N  A S S E M B L Y

                                   January 25, 2013
                                      ___________

       Introduced  by M. of A. AUBRY -- read once and referred to the Committee
         on Codes

       AN ACT to amend the executive law and the judiciary law, in relation  to
         undisposed cases

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

    1    Section 1. The executive law is amended by adding a new section  845-c
    2  to read as follows:
    3    S  845-C. CRIMINAL HISTORY RECORD SEARCHES; UNDISPOSED CASES. 1. WHEN,
    4  PURSUANT TO STATUTE OR THE REGULATIONS OF  THE  DIVISION,  THE  DIVISION
    5  CONDUCTS  A  SEARCH OF ITS CRIMINAL HISTORY RECORDS AND RETURNS A REPORT
    6  THEREON, ALL REFERENCES TO UNDISPOSED CASES CONTAINED IN  SUCH  CRIMINAL
    7  HISTORY RECORD SHALL BE EXCLUDED FROM SUCH REPORT.
    8    2. FOR PURPOSES OF THIS SECTION, "UNDISPOSED CASE" SHALL MEAN A CRIMI-
    9  NAL ACTION OR PROCEEDING, OR AN ARREST INCIDENT, IDENTIFIED IN THE DIVI-
   10  SION'S  CRIMINAL  HISTORY RECORDS FOR WHICH NO CONVICTION, IMPOSITION OF
   11  SENTENCE, ORDER OF REMOVAL OR OTHER FINAL DISPOSITION,  OTHER  THAN  THE
   12  ISSUANCE OF AN APPARENTLY UNEXECUTED WARRANT, HAS BEEN RECORDED AND WITH
   13  RESPECT  TO  WHICH  NO  ENTRY  HAS  BEEN MADE IN THE DIVISION'S CRIMINAL
   14  HISTORY RECORDS FOR A PERIOD OF AT LEAST FIVE YEARS PRECEDING THE  ISSU-
   15  ANCE OF SUCH REPORT.
   16    3.  THE  PROVISIONS OF SUBDIVISION ONE OF THIS SECTION SHALL NOT APPLY
   17  TO CRIMINAL HISTORY RECORD INFORMATION (A) PROVIDED BY THE  DIVISION  TO
   18  QUALIFIED  AGENCIES PURSUANT TO SUBDIVISION SIX OF SECTION EIGHT HUNDRED
   19  THIRTY-SEVEN OF THIS ARTICLE, OR TO FEDERAL  OR  STATE  LAW  ENFORCEMENT
   20  AGENCIES,  FOR CRIMINAL JUSTICE PURPOSES; (B) PREPARED SOLELY FOR A BONA
   21  FIDE RESEARCH PURPOSE; OR (C) PREPARED FOR THE INTERNAL RECORDKEEPING OR
   22  CASE MANAGEMENT PURPOSES OF THE DIVISION.
   23    4. NOTHING CONTAINED IN THIS SECTION SHALL  BE  DEEMED  TO  PERMIT  OR
   24  REQUIRE  THE  RELEASE, DISCLOSURE OR OTHER DISSEMINATION BY THE DIVISION

        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD04010-01-3
       A. 3381                             2

    1  OF CRIMINAL HISTORY RECORD INFORMATION THAT HAS BEEN SEALED  IN  ACCORD-
    2  ANCE WITH LAW.
    3    S  2.  Subdivision 2 of section 212 of the judiciary law is amended by
    4  adding a new paragraph (s) to read as follows:
    5    (S) TAKE SUCH ACTIONS AND ADOPT SUCH MEASURES AS MAY BE  NECESSARY  TO
    6  ENSURE THAT NO WRITTEN OR ELECTRONIC REPORT OF A CRIMINAL HISTORY RECORD
    7  SEARCH  CONDUCTED  BY  THE  OFFICE OF COURT ADMINISTRATION, OTHER THAN A
    8  SEARCH CONDUCTED SOLELY FOR THE INTERNAL RECORDKEEPING OR  CASE  MANAGE-
    9  MENT  PURPOSES  OF  THE  JUDICIARY  OR FOR A BONA FIDE RESEARCH PURPOSE,
   10  CONTAINS INFORMATION RELATING TO AN UNDISPOSED  CASE.  FOR  PURPOSES  OF
   11  THIS  PARAGRAPH,  "UNDISPOSED  CASE"  SHALL  MEAN  A  CRIMINAL ACTION OR
   12  PROCEEDING, OR AN ARREST INCIDENT, APPEARING  IN  THE  CRIMINAL  HISTORY
   13  RECORDS  OF  THE OFFICE OF COURT ADMINISTRATION FOR WHICH NO CONVICTION,
   14  IMPOSITION OF SENTENCE, ORDER OF REMOVAL  OR  OTHER  FINAL  DISPOSITION,
   15  OTHER  THAN  THE  ISSUANCE OF AN APPARENTLY UNEXECUTED WARRANT, HAS BEEN
   16  RECORDED AND WITH RESPECT TO WHICH  NO  ENTRY  HAS  BEEN  MADE  IN  SUCH
   17  RECORDS  FOR  A  PERIOD OF AT LEAST FIVE YEARS PRECEDING THE ISSUANCE OF
   18  SUCH REPORT. NOTHING CONTAINED IN THIS  PARAGRAPH  SHALL  BE  DEEMED  TO
   19  PERMIT  OR REQUIRE THE RELEASE, DISCLOSURE OR OTHER DISSEMINATION BY THE
   20  OFFICE OF COURT ADMINISTRATION OF CRIMINAL  HISTORY  RECORD  INFORMATION
   21  THAT HAS BEEN SEALED IN ACCORDANCE WITH LAW.
   22    S 3. This act shall take effect on the one hundred eightieth day after
   23  it  shall  have  become  a  law  and shall apply to searches of criminal
   24  history records conducted on or after such date; provided, however, that
   25  prior to such effective date, the division of criminal justice services,
   26  in consultation with the state administrator of the unified court system
   27  as well as any other public or  private  agency,  shall  undertake  such
   28  measures  as  may  be  necessary  and appropriate to update its criminal
   29  history records with respect to criminal cases and arrest incidents  for
   30  which no final disposition has been reported.
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