Enacts the uniform collateral consequences of conviction act requiring the division of criminal justice services to collect and publish laws regarding collateral consequences of conviction and requiring notification to convicts of collateral consequences of such convictions.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A8546
SPONSOR: Lentol TITLE OF BILL:
An act to amend the criminal procedure law, in relation to collateral
consequences of convictions
PURPOSE OR GENERAL IDEA OF BILL:
A criminal conviction, of any type, can have consequences far beyond the
sentence imposed by a Court. Even if the court imposes nothing more than
a fine, a conviction can result in the loss of employment, housing,
school loan and/or grant assistance, and inability to become a citizen
or retain permanent . residence status. Most criminal cases are disposed
of by a plea, and in order to make a knowing decision as to the impact
of a plea, a defendant should be advised as to the collateral conse-
quences that can occur as a result of entering a plea to even a minor
offense. A Court must advise a defendant of the rights that are being
waived by a plea, this legislation would add that a defendant be advised
of the most common collateral consequences as well.
SUMMARY OF SPECIFIC PROVISIONS:
Require DCJS to compile a comprehensive list of possible collateral
consequences of a guilty plea. At plea defendant to be advised that
there could be collateral consequences and must be given web site of the
DCJS list. Mandates that collateral consequences must be placed in stat-
ute and that a motion for relief from a particular collateral conse-
quences or sanction can be made to the court of conviction, or a peti-
tion made to DCJS
JUSTIFICATION:
To enable defendants to make more informed decisions prior to the entry
of a plea. Also to enable an offender to gain employment or other bene-
fit subject to Court and DCJS review.
PRIOR LEGISLATIVE HISTORY:
New legislation.
FISCAL IMPLICATIONS:
None.
EFFECTIVE DATE:
180 days after it shall become law.
STATE OF NEW YORK
________________________________________________________________________
8546
2011-2012 Regular Sessions
IN ASSEMBLY
July 20, 2011
___________
Introduced by M. of A. LENTOL -- read once and referred to the Committee
on Codes
AN ACT to amend the criminal procedure law, in relation to collateral
consequences of convictions
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Short title. This act shall be known and may be cited as
2 the "uniform collateral consequences of conviction act".
3 § 2. The criminal procedure law is amended by adding a new article 435
4 to read as follows:
5 ARTICLE 435
6 UNIFORM COLLATERAL CONSEQUENCES OF CONVICTION ACT
7 Section 435.00 Definitions.
8 435.05 Limitation on scope.
9 435.10 Identification, collection and publication of laws
10 regarding collateral consequences.
11 435.15 Notice of collateral consequences in pretrial proceeding
12 and at guilty plea.
13 435.20 Notice of collateral consequences at sentencing and upon
14 release.
15 435.25 Authorization required for collateral sanction; ambigui-
16 ty.
17 435.30 Decision to disqualify.
18 435.35 Effect of conviction by another state or the United
19 States; relieved or pardoned conviction.
20 435.40 Order of limited relief.
21 435.45 Certificate of restoration of rights.
22 435.50 Collateral sanctions not subject to order of limited
23 relief or certificate of restoration of rights.
24 435.55 Issuance, modification and revocation of order of limited
25 relief and certificate of restoration of rights.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD11883-01-1
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1 435.60 Reliance on order or certificate as evidence of due care.
2 435.65 Victim's rights.
3 435.70 Savings and transitional provisions.
4 § 435.00 Definitions.
5 For the purposes of this article, the following terms shall have the
6 following meanings:
7 1. "Collateral consequence" means a collateral sanction or a disquali-
8 fication.
9 2. "Collateral sanction" means a penalty, disability, or disadvantage,
10 however denominated, imposed on an individual as a result of the indi-
11 vidual's conviction of an offense which applies by operation of law
12 whether or not the penalty, disability, or disadvantage is included in
13 the judgment or sentence. The term does not include imprisonment,
14 probation, parole, presumptive release, conditional release, post
15 release supervision, forfeiture, restitution, fine, assessment, or costs
16 of prosecution.
17 3. "Conviction" shall have the meaning ascribed to it in subdivision
18 thirteen of section 1.20 of this chapter and shall include any adjudi-
19 cation as a juvenile delinquent. "Convicted" has a corresponding mean-
20 ing.
21 4. "Decision-maker" means the state acting through a department, agen-
22 cy, officer, or instrumentality, including a political subdivision,
23 educational institution, board, or commission, or its employees, or a
24 government contractor, including a subcontractor, made subject to this
25 article by contract, by law other than this article, or by ordinance.
26 5. "Disqualification" means a penalty, disability, or disadvantage,
27 however denominated, that an administrative agency, governmental offi-
28 cial, or court in a civil proceeding is authorized, but not required, to
29 impose on an individual on grounds relating to the individual's
30 conviction of an offense.
31 6. "Offense" means a felony, misdemeanor, and lesser included
32 offenses, under the laws of this state, another state, or the United
33 States.
34 7. "Person" means an individual, corporation, business trust, estate,
35 trust, partnership, limited liability company, association, joint
36 venture, public corporation, government or governmental subdivision,
37 agency, or instrumentality, or any other legal or commercial entity.
38 8. "State" means a state of the United States, the District of Colum-
39 bia, Puerto Rico, the United States Virgin Islands, or any territory or
40 insular possession subject to the jurisdiction of the United States.
41 § 435.05 Limitation on scope.
42 1. This article shall not provide a basis for:
43 (a) invalidating a plea, conviction, or sentence;
44 (b) a cause of action for money damages; or
45 (c) a claim for relief from or defense to the application of a collat-
46 eral consequence based on a failure to comply with sections 435.10,
47 435.15 or 435.20 of this article.
48 2. This article shall not affect:
49 (a) the duty an individual's attorney owes to the individual;
50 (b) a claim or right of a victim of an offense; or
51 (c) a right or remedy under law other than this article available to
52 an individual convicted of an offense.
53 § 435.10 Identification, collection and publication of laws regarding
54 collateral consequences.
55 1. The division of criminal justice services:
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1 (a) shall identify or cause to be identified any provision in the
2 state constitution, laws, and administrative rules which imposes a
3 collateral sanction or authorizes the imposition of a disqualification,
4 and any provision of law that may afford relief from a collateral conse-
5 quence;
6 (b) not later than ninety days after the effective date of this arti-
7 cle, shall prepare or cause to be prepared a collection of citations to,
8 and the text or short descriptions of, the provisions identified under
9 paragraph (a) of this subdivision;
10 (c) shall update or cause to be updated the collection within sixty
11 days after each regular session of the legislature; and
12 (d) in complying with paragraphs (a) and (b) of this subdivision, may
13 rely on the study of this state's collateral sanctions, disqualifica-
14 tions, and relief provisions prepared by the national institute of
15 justice described in section 510 of the court security improvement act
16 of 2007, Pub. L. 110-177.
17 2. The division of criminal justice services shall include or cause to
18 be included the following statements in a prominent manner at the begin-
19 ning of the collection required by subdivision one of this section:
20 (a) This collection has not been enacted into law and does not have
21 the force of law.
22 (b) An error or omission in this collection or in any reference work
23 cited in this collection is not a reason for invalidating a plea,
24 conviction, or sentence or for not imposing a collateral sanction or
25 authorizing a disqualification.
26 (c) The laws of other jurisdictions and local municipalities which
27 impose additional collateral sanctions and authorize additional disqual-
28 ifications are not included in this collection.
29 (d) This collection does not include any law or other provision
30 regarding the imposition of or relief from a collateral sanction or a
31 disqualification enacted or adopted after the previous time the
32 collection was prepared or updated.
33 3. The division of criminal justice services shall publish or cause to
34 be published the collection prepared and updated as required by subdivi-
35 sion one of this section. If available, it shall publish or cause to be
36 published, as part of the collection, the title and internet address of
37 the most recent collection of:
38 (a) the collateral consequences imposed by federal law; and
39 (b) any provision of federal law that may afford relief from a collat-
40 eral consequence.
41 4. The collection described in subdivision three of this section must
42 be available to the public on the internet without charge not later than
43 thirty days after it is created or updated.
44 § 435.15 Notice of collateral consequences in pretrial proceeding and at
45 guilty plea.
46 1. When an individual receives formal notice that the individual is
47 charged with an offense, the court shall cause information substantially
48 similar to the following to be communicated to the individual:
49 NOTICE OF ADDITIONAL LEGAL CONSEQUENCES
50 If you plead guilty or are convicted of an offense you may suffer
51 additional legal consequences beyond jail or prison, probation, periods
52 of parole, presumptive release, conditional release, post-release super-
53 vision and fines. These consequences may include:
54 (a) being unable to get or keep some licenses, permits, or jobs;
55 (b) being unable to get or keep benefits such as public housing or
56 education;
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1 (c) receiving a harsher sentence if you are convicted of another
2 offense in the future;
3 (d) having the government take your property; and
4 (e) being unable to vote or possess a firearm.
5 If you are not a United States citizen, a guilty plea or conviction
6 may also result in your deportation, removal, exclusion from admission
7 to the United States, or denial of citizenship.
8 The law may provide ways to obtain some relief from these conse-
9 quences.
10 Further information about the consequences of conviction is available
11 on the internet at the New York state division of criminal justice
12 services website.
13 2. Before the court accepts a plea of guilty or nolo contendere from
14 an individual, the court shall confirm that the individual received and
15 understands the notice required by subdivision one of this section and
16 had an opportunity to discuss the notice with counsel.
17 § 435.20 Notice of collateral consequences at sentencing and upon
18 release.
19 1. An individual convicted of an offense shall be given notice as
20 provided in subdivisions two and three of this section:
21 (a) that collateral consequences may apply because of the conviction;
22 (b) of the internet address of the collection of laws published under
23 subdivision three of section 435.10 of this article;
24 (c) that there may be ways to obtain relief from collateral conse-
25 quences;
26 (d) of contact information for government or nonprofit agencies,
27 groups, or organizations, if any, offering assistance to individuals
28 seeking relief from collateral consequences; and
29 (e) of when an individuial convicted of an offense may vote under this
30 state's law.
31 2. The court shall provide the notice in subdivision one of this
32 section as a part of sentencing.
33 3. If an individual is sentenced to imprisonment or other incacera-
34 tion, the officer or agency releasing the individual shall provide the
35 notice in subdivision one of this section not more than thirty, and, if
36 practicable, at least ten, days before release.
37 § 435.25 Authorization required for collateral sanction; ambiguity.
38 1. A collateral sanction may be imposed only by statute or ordinance,
39 or by a rule or regulation authorized by law and adopted in accordance
40 with the state administrative procedure act or any other applicable law.
41 2. A law creating a collateral consequence that is ambiguous as to
42 whether it imposes a collateral sanction or authorizes a disqualifica-
43 tion shall be construed as authorizing a disqualification.
44 § 435.30 Decision to disqualify.
45 In deciding whether to impose a disqualification, a decision-maker
46 shall undertake an individualized assessment to determine whether the
47 benefit or opportunity at issue should be denied the individual. In
48 making that decision, the decision-maker may consider, if substantially
49 related to the benefit or opportunity at issue: the particular facts and
50 circumstances involved in the offense, and the essential elements of the
51 offense. A conviction itself may not be considered except as having
52 established the elements of the offense. The decision-maker shall also
53 consider other relevant information, including the effect on third
54 parties of granting the benefit or opportunity and whether the individ-
55 ual has been granted relief such as an order of limited relief or a
56 certificate of restoration of rights.
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1 § 435.35 Effect of conviction by another state or the United States;
2 relieved or pardoned conviction.
3 1. For purposes of authorizing or imposing a collateral consequence in
4 this state, a conviction of an offense in a court of another state or
5 the United States is deemed a conviction of the offense in this state
6 with the same elements. If there is no offense in this state with the
7 same elements, the conviction is deemed a conviction of the most serious
8 offense in this state which is established by the elements of the
9 offense. A misdemeanor in the jurisdiction of conviction may not be
10 deemed a felony in this state, and an offense lesser than a misdemeanor
11 in the jurisdiction of conviction may not be deemed a conviction of a
12 felony or misdemeanor in this state.
13 2. For purposes of authorizing or imposing a collateral consequence in
14 this state, a juvenile adjudication in another state or the United
15 States may not be deemed a conviction of a felony, misdemeanor, or
16 offense lesser than a misdemeanor in this state, but may be deemed a
17 juvenile adjudication for the delinquent act in this state with the same
18 elements. If there is no delinquent act in this state with the same
19 elements, the juvenile adjudication is deemed an adjudication of the
20 most serious delinquent act in this state which is established by the
21 elements of the offense.
22 3. A conviction that is reversed, overturned, or otherwise vacated by
23 a court of competent jurisdiction of this state, another state, or the
24 United States on grounds other than rehabilitation or good behavior may
25 not serve as the basis for authorizing or imposing a collateral conse-
26 quence in this state.
27 4. A pardon issued by another state or the United States has the same
28 effect for purposes of authorizing, imposing, and relieving a collateral
29 consequence in this state as it has in the issuing jurisdiction.
30 5. A conviction that has been relieved by expungement, sealing, annul-
31 ment, set-aside, or vacation by a court of competent jurisdiction of
32 another state or the United States on grounds of rehabilitation or good
33 behavior, or for which civil rights are restored pursuant to statute,
34 has the same effect for purposes of authorizing or imposing collateral
35 consequences in this state as it has in the jurisdiction of conviction.
36 However, such relief or restoration of civil rights does not relieve
37 collateral consequences applicable under the law of this state for which
38 relief could not be granted under section 435.50 of this article or for
39 which relief was expressly withheld by the court order or by the law of
40 the jurisdiction that relieved the conviction. An individual convicted
41 in another jurisdiction may seek relief under section 435.40 or 435.45
42 of this article from any collateral consequence for which relief was not
43 granted in the issuing jurisdiction, other than those listed in section
44 435.50 of this article, and the court shall consider that the conviction
45 was relieved or civil rights restored in deciding whether to issue an
46 order of limited relief or certificate of restoration of rights.
47 6. A charge or prosecution in any jurisdiction which has been finally
48 terminated without a conviction and imposition of sentence based on
49 participation in a deferred adjudication or diversion program may not
50 serve as the basis for authorizing or imposing a collateral consequence
51 in this state. This subdivision shall not affect the validity of any
52 restriction or condition imposed by law as part of participation in the
53 deferred adjudication or diversion program, before or after the termi-
54 nation of the charge or prosecution.
55 § 435.40 Order of limited relief.
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1 1. An individual convicted of an offense may petition for an order of
2 limited relief from one or more collateral sanctions related to employ-
3 ment, education, housing, public benefits, or occupational licensing.
4 The petition may be presented to the:
5 (a) sentencing court at or before sentencing; or
6 (b) the division of criminal justice services at any time after
7 sentencing.
8 2. Except as otherwise provided in section 435.50 of this article, the
9 court or the division of criminal justice services may issue an order of
10 limited relief relieving one or more of the collateral sanctions
11 described in subdivision one of this section if, after reviewing the
12 petition, the individual's criminal history, any filing by a victim
13 under section 435.65 of this article or a prosecutor, and any other
14 relevant evidence, it finds the individual has established by a prepon-
15 derance of the evidence that:
16 (a) granting the petition will materially assist the individual in
17 obtaining or maintaining employment, education, housing, public bene-
18 fits, or occupational licensing;
19 (b) the individual has substantial need for the relief requested in
20 order to live a law-abiding life; and
21 (c) granting the petition would not pose an unreasonable risk to the
22 safety or welfare of the public or any individual.
23 3. The order of limited relief must specify:
24 (a) the collateral sanction from which relief is granted; and
25 (b) any restriction imposed pursuant to subdivision one of section
26 435.55 of this article.
27 4. An order of limited relief relieves a collateral sanction to the
28 extent provided in the order.
29 5. If a collateral sanction has been relieved pursuant to this
30 section, a decision-maker may consider the conduct underlying a
31 conviction as provided in section 435.30 of this article.
32 § 435.45 Certificate of restoration of rights.
33 1. An individual convicted of an offense may petition the division of
34 criminal justice services for a certificate of restoration of rights
35 relieving collateral sanctions not sooner than three years after the
36 individual's most recent conviction of a felony or misdemeanor in any
37 jurisdiction, or not sooner than three years after the individual's
38 release from confinement pursuant to a criminal sentence in any juris-
39 diction, whichever is later.
40 2. Except as otherwise provided in section 435.50 of this article, the
41 division of criminal justice services may issue a certificate of resto-
42 ration of rights if, after reviewing the petition, the individual's
43 criminal history, any filing by a victim under section 435.65 of this
44 article or a prosecutor, and any other relevant evidence, it finds the
45 individual has established by a preponderance of the evidence that:
46 (a) the individual is engaged in, or seeking to engage in, a lawful
47 occupation or activity, including employment, training, education, or
48 rehabilitative programs, or the individual otherwise has a lawful source
49 of support;
50 (b) the individual is not in violation of the terms of any criminal
51 sentence, or that any failure to comply is justified, excused, involun-
52 tary, or insubstantial;
53 (c) a criminal charge is not pending against the individual; and
54 (d) granting the petition would not pose an unreasonable risk to the
55 safety or welfare of the public or any individual.
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1 3. A certificate of restoration of rights must specify any restriction
2 imposed and collateral sanction from which relief has not been granted
3 under subdivision one of section 435.55 of this article.
4 4. A certificate of restoration of rights relieves all collateral
5 sanctions, except those listed in section 435.50 of this article and any
6 others specifically excluded in the certificate.
7 5. If a collateral sanction has been relieved pursuant to this
8 section, a decision-maker may consider the conduct underlying a
9 conviction as provided in section 435.30 of this article.
10 § 435.50 Collateral sanctions not subject to order of limited relief or
11 certificate of restoration of rights.
12 An order of limited relief or certificate of restoration of rights may
13 not be issued to relieve the following collateral sanctions:
14 1. requirements imposed by article six-c of the correction law, the
15 sex offender registration act;
16 2. a motor vehicle license suspension, revocation, limitation, or
17 ineligibility pursuant to article twenty or thirty-one of the vehicle
18 and traffic law, for which restoration or relief is otherwise available;
19 or
20 3. ineligibility for employment pursuant to any law, rule or regu-
21 lation of this state.
22 § 435.55 Issuance, modification and revocation of order of limited
23 relief and certificate of restoration of rights.
24 1. When a petition is filed under section 435.40 or 435.45 of this
25 article, including a petition for enlargement of an existing order of
26 limited relief or certificate of restoration of rights, the division of
27 criminal justice services shall notify the prosecuting office of the
28 offense giving rise to the collateral consequence from which relief is
29 sought and, if the conviction was not obtained in a court of this state,
30 the office of the New York state attorney general. The court may issue
31 an order and the division of criminal justice services may issue an
32 order or certificate subject to restriction, condition, or additional
33 requirement. When issuing, denying, modifying, or revoking an order or
34 certificate, the division of criminal justice services may impose condi-
35 tions for reapplication.
36 2. The division of criminal justice services may restrict or revoke an
37 order of limited relief or certificate of restoration of rights it
38 issued or an order of limited relief issued by a court in this state if
39 it finds just cause by a preponderance of the evidence. Just cause
40 includes subsequent conviction of a felony in this state or of an
41 offense in another jurisdiction that is deemed a felony in this state
42 under subdivision one of section 435.35 of this article. An order of
43 restriction or revocation may be issued:
44 (a) on motion of the division of criminal justice services, the office
45 of the prosecutor that obtained the conviction, or a government agency
46 designated by that prosecutor;
47 (b) after notice to the individual and any prosecutor that has
48 appeared in the matter; and
49 (c) after a hearing pursuant to article seventy-eight of the civil
50 practice law and rules if requested by the individual or the prosecutor
51 that made the motion or any prosecutor that has appeared in the matter.
52 (d) The court or the division of criminal justice services shall order
53 any test, report, investigation, or disclosure by the individual it
54 reasonably believes necessary to its decision to issue, modify, or
55 revoke an order of limited relief or certificate of restoration of
56 rights. If there are material disputed issues of fact or law, the indi-
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1 vidual and any prosecutor notified under subdivision one of this section
2 or another prosecutorial agency designated by a prosecutor notified
3 under subdivision one of this section may submit evidence and be heard
4 on those issues.
5 (e) The division of criminal justice services shall maintain a public
6 record of the issuance, modification, and revocation of orders of limit-
7 ed relief and certificates of restoration of rights. The criminal histo-
8 ry record system of the division of criminal justice services must
9 include issuance, modification, and revocation of orders and certif-
10 icates.
11 (f) The division of criminal justice services may promulgate rules and
12 regulations for application, determination, modification, and revocation
13 of orders of limited relief and certificates of restoration of rights,
14 in accordance with article seventy-eight of the civil practice law and
15 rules.
16 § 435.60 Reliance on order or certificate as evidence of due care.
17 In a judicial or administrative proceeding alleging negligence or
18 other fault, an order of limited relief or a certificate of restoration
19 of rights may be introduced as evidence of a person's due care in
20 hiring, retaining, licensing, leasing to, admitting to a school or
21 program or otherwise transacting business or engaging in activity with
22 the individual to whom the order was issued, if the person knew of the
23 order or certificate at the time of the alleged negligence or other
24 fault.
25 § 435.65 Victim's rights.
26 A victim of an offense may participate in a proceeding for issuance,
27 modification or revocation of an order of limited relief or a certif-
28 icate of restoration of rights to the extent permitted by the rules or
29 regulations promulgated by the division of criminal justice services.
30 § 435.70 Savings and transitional provisions.
31 1. This article applies to collateral consequences whenever enacted or
32 imposed, unless the law creating the collateral consequence expressly
33 states that this article does not apply.
34 2. This article does not invalidate the imposition of a collateral
35 sanction on an individual before the effective date of this article, but
36 a collateral sanction validly imposed before the effective date of this
37 article may be the subject of relief under this article.
38 § 3. This act shall take effect on the one hundred twentieth day after
39 it shall have become a law; provided, however, that effective immediate-
40 ly, the addition, amendment and/or repeal of any rule or regulation
41 necessary for the implementation of this act on its effective date is
42 authorized to be made on or before such date.
