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A03245 Summary:

A03245 Actions:

A03245 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
 submitted in accordance with Assembly Rule III, Sec 1(f)



 
BILL NUMBER: A3245
 
SPONSOR: Aubry

 
TITLE OF BILL:  An act to amend the criminal procedure law, in
relation to termination of criminal action in favor of the accused
 
 
PURPOSE:
 
This bill will create a procedure to validate and ensure the accuracy of
a person's permanent criminal record as maintained by the Division of
Criminal Justice Services (DCJS).
 
 
SUMMARY OF PROVISIONS:
 
Section 1 of the bill adds a new subdivision 5 of Section 160.50 of the
criminal procedure law creating a process whereby DCJS is to verify
criminal record information where docket number or other arrest informa-
tion is missing. DCJS is required to contact various law enforcement
entities and the courts in order to seek the missing information. In the
event no information is forthcoming, the arrest will be deemed termi-
nated in favor of the accused and the records sealed.  The new subdivi-
sion also requires DCJS to verify criminal record information where an
accusatory instrument has been filed and the last action of the case is
not the issuance of a bench warrant. Under these circumstances/ one year
after the last action in the case, where no action has been taken on the
case and no disposition has been recorded, DCJS is required to contact
various law enforcement entities and the courts in order to seek the
missing information. In the event no information is forthcoming, the
criminal action or proceeding will be deemed terminated in favor of the
accused and the records sealed.

Section 2 of the bill is the effective date.
 
 
EXISTING LAW:
 
Under Criminal Procedure Law § 160.50 records pertaining to criminal
actions that have been terminated in favor of the accused are to be
sealed. These include cases that prosecutors elect not to prosecute (CPL
160.5(3) (i) and arrests that the police elect not to pursue (CPL § 160.
50 (3) (j).
 
 
JUSTIFICATION:
 
Although the law provides for the sealing of certain records, in many
cases, administrative failures occur, leaving information about these
and other cases that have ended in a person's favor unsealed on the
person's permanent criminal record (also known as a rap sheet) main-
tained by the Division of Criminal Justice Services (DCJS) Attempts to
correct these errors often prove unsuccessful because no information
about the cases can be found, either because the parties involved have
destroyed their records or because no records have been generated
because of the preliminary nature of the case. These permanent inaccura-
cies on a person's record often lead to a loss of employment and housing
opportunities.
 
In order to remedy this problem, it is proposed that CPL § 160.50 be
amended and a process be put in place for correcting the errors and
inaccurate information that appear on rap sheets. Examples include:
Cases where Arrest Information but No Docket Number Appears: In many
cases, rap sheets only contain information about arrests. No other
information, not even a docket number, appears. No docket number on a
rap sheet most likely signifies either that the prosecutor has elected
not to prosecute the case, or that the police have elected not to pursue
the arrest. In these instances, for cases generated after the effective
date of this legislation, it is proposed that six months after the date
of arrest, DCJS send an automatic notification to all relevant criminal
justice agencies - the arresting agency, the district attorney, the
clerk of the court, the local correctional facility, the State Depart-
ment of Corrections (DOCS), and the Office of Court Administration (OCA)
- asking whether the case remains open.  If, after 60 days, the parties
have not responded, the case shall be considered dismissed and will be
sealed by DCJS. If any of the relevant agencies provide new information,
the record will be updated to include this information the individual
will have the right to petition DCJS to have their case sealed. DCJS
will then follow the same procedure listed above.  In each circumstance,
DCJS will notify all relevant criminal justice agencies when the case
has been sealed.
 
Cases Where a Docket Number Appears but No Action has been Taken on the
Case: In cases actively moving through the court system, actions taken
in the case - arraignments, transfers, indictments, bench warrants
usually appear on the person's criminal record. When a case has been
docketed but no action has been taken for a year, and no warrant exists,
the case should have either been dismissed, as speedy trial requirements
would dictate that some action take place within that time, or disposed
of. In these instances, for cases generated after the effective date of
this legislation, it is proposed that after' a year from the date of the
last court proceeding, DCJS send an automatic notification to all rele-
vant criminal justice agencies - the arresting agency, the district
attorney, the clerk of the court, the local correctional facilities,
DOCS, and OCA - asking whether the case remains open. If, after 60 days,
the parties have not responded, the case shall be sealed by DCJS. If any
of the relevant agencies provide new information, the record will be
updated to include this information. For cases generated before the
effective date of this legislation, the individual will have the right
to petition DCJS to have the case sealed. DCJS will then follow the same
procedure listed above. In each circumstance, DCJS will notify all rele-
vant criminal justice agencies when the case has been sealed. In an age
where the criminal history background check is almost universal, New
York's sealing laws act as a guard against illegal workplace discrimi-
nation 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 communicate with each other. According to
Criminal Procedural Law, the arresting agency, the district attorney,
the clerk of the court, and OCA are all responsible for reporting to
DCJS that certain criminal actions ended in a person's favor. Adminis-
trative 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 a
long time without anyone's knowledge. As DCJS cannot currently act with-
out information from the relevant agency, these inaccuracies 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 termi-
nated 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 inaccuracies on
their rap sheet are in limbo: they cannot contest inaccurate or incom-
plete information on their rap sheet if the necessary correctives (the
original records) have been purged. Such people also lose the protection
they are entitled to under New York State sealing laws and the Federal
and New York State Fair Credit Reporting Acts.
 
To remedy this problem, a system is proposed that will identify these
incomplete records and correct the error, either by entering the correct
disposition or sealing the record, when appropriate. The amendment would
require that DCJS contact affected agencies and the courts before seal-
ing a record. DOCS currently retains the incarceration information of
people with felony convictions for more than thirty years.
 
The failure in communication among the various criminal justice agencies
has caused countless individuals to lose employment, benefits and hous-
ing opportunities. This proposal corrects these administrative failures
and will help many New Yorkers lead productive, law-biding lives.
 
 
LEGISLATIVE HISTORY:
 
A.10895-A Referred to Codes2008.
A.3666 was referred to codes in 2009 and 2010.
A.6472 was referred to codes in 2011 and 2012.
A.2897 was referred to codes2013 and 2014.
A.4022 was referred to codes2015 and 2016.
 
 
FISCAL IMPLICATIONS:
 
To be determined.
 
 
EFFECTIVE DATE:
This act shall take effect January 1, 2019.