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A08798 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          8798
 
                               2017-2018 Regular Sessions
 
                   IN ASSEMBLY
 
                                    November 27, 2017
                                       ___________
 
        Introduced  by M. of A. QUART -- read once and referred to the Committee
          on Codes
 
        AN ACT to amend the criminal procedure law, in  relation  to  orders  of
          adjournment  in  contemplation  of  dismissal and sealing of defendant
          records
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section  1.  Subdivision 1 of section 160.58 of the criminal procedure
     2  law, as added by section 3 of part AAA of chapter  56  of  the  laws  of
     3  2009, is amended to read as follows:
     4    1. A defendant convicted of any offense defined in article two hundred
     5  twenty or two hundred twenty-one of the penal law or a specified offense
     6  defined  in  subdivision  five of section 410.91 of this chapter who has
     7  successfully completed a judicial diversion program  under  article  two
     8  hundred sixteen of this chapter, or one of the programs heretofore known
     9  as drug treatment alternative to prison or another judicially sanctioned
    10  drug  treatment  program  of similar duration, requirements and level of
    11  supervision, and has completed the sentence imposed for the  offense  or
    12  offenses,  [is  eligible  to] shall have such offense or offenses sealed
    13  pursuant to this section.
    14    § 2. Subdivision 2 of section 160.58 of the criminal procedure law, as
    15  added by section 3 of part AAA of chapter 56 of the  laws  of  2009,  is
    16  amended to read as follows:
    17    2.  The  court that sentenced the defendant to a judicially sanctioned
    18  drug treatment program [may on its own motion,  or  on  the  defendant's
    19  motion,]  shall  order that all official records [and papers relating to
    20  the arrest, prosecution and conviction which resulted in the defendant's
    21  participation in the judicially sanctioned  drug  treatment  program  be
    22  conditionally  sealed],  documents,  pleadings  and records exchanged as
    23  part of discovery  relating  to  the  arrest,  indictment,  prosecution,
    24  conviction,  or plea agreement which resulted in the defendant's partic-
    25  ipation in the judicially sanctioned drug treatment program  be  sealed.
    26  In such case, the court may also [conditionally] seal the arrest, [pros-
    27  ecution and conviction records for no more than three of the defendant's

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD13750-02-7

        A. 8798                             2

     1  prior  eligible  misdemeanors,  which  for  purposes of this subdivision
     2  shall be limited to misdemeanor offenses defined in article two  hundred
     3  twenty  or  two hundred twenty-one of the penal law.  The court may only
     4  seal   the   records   of  the  defendant's  arrests,  prosecutions  and
     5  convictions when] indictment, prosecution, conviction and plea agreement
     6  for that defendant's prior misdemeanors. The court may seal the  records
     7  of  the defendant's prior arrest, indictment, prosecution, conviction or
     8  plea agreement when:
     9    (a) the sentencing court has requested and received from the  division
    10  of  criminal  justice  services or the Federal Bureau of Investigation a
    11  fingerprint based criminal history record of  the  defendant,  including
    12  any  sealed  or suppressed information. The division of criminal justice
    13  services shall also include a criminal history report, if any, from  the
    14  Federal  Bureau of Investigation regarding any criminal history informa-
    15  tion that occurred  in  other  jurisdictions.  The  division  is  hereby
    16  authorized to receive such information from the Federal Bureau of Inves-
    17  tigation  for  this  purpose.  The parties shall be permitted to examine
    18  these records;
    19    (b) the defendant or court has identified the  misdemeanor  conviction
    20  or convictions for which relief may be granted; and
    21    (c) the court has received documentation that the sentences imposed on
    22  the  eligible misdemeanor convictions have been completed, or if no such
    23  documentation is  reasonably  available,  a  sworn  affidavit  that  the
    24  sentences imposed on the prior misdemeanors have been completed[; and
    25    (d)  the court has notified the district attorney of each jurisdiction
    26  in which the defendant has been convicted of an offense with respect  to
    27  which  sealing  is  sought,  and  the court or courts of record for such
    28  offenses, that the court is  considering  sealing  the  records  of  the
    29  defendant's eligible misdemeanor convictions. Both the district attorney
    30  and  the  court shall be given a reasonable opportunity, which shall not
    31  be less than thirty days, in which to comment and  submit  materials  to
    32  aid the court in making such a determination].
    33    § 3. Subdivision 3 of section 160.58 of the criminal procedure law, as
    34  added  by  section  3  of part AAA of chapter 56 of the laws of 2009, is
    35  amended to read as follows:
    36    3. At the request of the defendant or the district attorney of a coun-
    37  ty in which the defendant committed a crime that is the subject  of  the
    38  sealing application, the court [may] shall conduct a hearing to consider
    39  and  review any relevant evidence offered by either party that would aid
    40  the court in its decision whether to seal the records of the defendant's
    41  arrests, prosecutions and convictions. In making such [a] determination,
    42  the court shall consider [any relevant factors, including but not limit-
    43  ed to] the following factors: (i) [the circumstances and seriousness  of
    44  the  offense or offenses that resulted in the conviction or convictions;
    45  (ii) the character of the defendant, including his or her completion  of
    46  the  judicially sanctioned treatment program as described in subdivision
    47  one of this section; (iii) the defendant's criminal  history;  and  (iv)
    48  the  impact of sealing the defendant's records upon his or her rehabili-
    49  tation and his or her successful  and  productive  reentry  and  reinte-
    50  gration  into  society,  and  on  public  safety]  whether the defendant
    51  completed the judicially sanctioned treatment program  as  described  in
    52  subdivision  one  of  this  section;  and (ii) the impact of sealing the
    53  defendant's records upon his or her ability to seek and maintain employ-
    54  ment and successfully integrate into society.

        A. 8798                             3

     1    § 4. Subdivision 8 of section 160.58 of the criminal procedure law, as
     2  added by section 3 of part AAA of chapter 56 of the  laws  of  2009,  is
     3  amended to read as follows:
     4    8.  If, subsequent to the sealing of records pursuant to this subdivi-
     5  sion, the person who is the subject of such records is arrested  for  or
     6  formally  charged  with  any misdemeanor or felony offense, such records
     7  shall be unsealed immediately and remain  unsealed;  provided,  however,
     8  that  if  such new misdemeanor or felony arrest results in a termination
     9  in favor of the accused as  defined  in  subdivision  three  of  section
    10  160.50  of  this  article or by conviction for a non criminal offense as
    11  described in section 160.55 of this article, such unsealed records shall
    12  be [conditionally] sealed pursuant to this section.
    13    § 5. Subdivision 2 of section 170.55 of the criminal procedure law, as
    14  amended by chapter 222 of the laws  of  1994,  is  amended  to  read  as
    15  follows:
    16    2.  An  adjournment in contemplation of dismissal is an adjournment of
    17  the action without date ordered [with a view to ultimate]  intended  for
    18  the  dismissal  of  the accusatory instrument in furtherance of justice.
    19  Upon issuing such an order, the court must release the defendant on  his
    20  own recognizance.  [Upon application of the people, made at any time not
    21  more  than  six months, or in the case of a family offense as defined in
    22  subdivision one of section 530.11 of this chapter, one year,  after  the
    23  issuance  of  such order, the court may restore the case to the calendar
    24  upon a determination that dismissal of the accusatory  instrument  would
    25  not be in furtherance of justice, and the action must thereupon proceed.
    26  If  the case is not so restored within such six months or one year peri-
    27  od, the accusatory instrument is, at  the  expiration  of  such  period,
    28  deemed  to  have been dismissed by the court in furtherance of justice.]
    29  At any time prior to dismissal the court may modify  the  conditions  or
    30  extend  or  reduce the term of adjournment, except that the total period
    31  of adjournment shall not exceed  ninety  days.  Upon  violation  of  any
    32  condition  fixed  by  the  court,  the  court shall revoke its order and
    33  restore the case to the calendar and the prosecution may proceed. If the
    34  case is not so restored to the calendar during the period fixed  by  the
    35  court,  the  accusatory instrument is, at the expiration of such period,
    36  deemed to have been dismissed. This section does  not  apply  to  family
    37  offense  matters as defined in subdivision one of section 530.11 of this
    38  chapter.
    39    § 6. Section 170.56 of the criminal procedure law, as added by chapter
    40  1042 of the laws of 1971, subdivision 1 as amended by chapter 360 of the
    41  laws of 1977 and subdivision 3 as amended by chapter 905 of the laws  of
    42  1977, is amended to read as follows:
    43  §  170.56  Adjournment  in contemplation of dismissal in cases involving
    44               marihuana.
    45    1.  Upon or after arraignment in a local criminal court upon an infor-
    46  mation, a prosecutor's information or a misdemeanor complaint, where the
    47  sole remaining count or counts  charge  a  violation  or  violations  of
    48  section  221.05,  221.10,  221.15, 221.35 or 221.40 of the penal law and
    49  before the entry of a plea of guilty thereto or commencement of  a trial
    50  thereof, the court, upon motion of  a  defendant,  may  order  that  all
    51  proceedings  be  suspended  and the action adjourned in contemplation of
    52  dismissal, or upon a finding that adjournment would not be necessary [or
    53  appropriate] and the setting forth in the record of the reasons for such
    54  findings, may dismiss in furtherance of justice the  accusatory  instru-
    55  ment[;  provided, however, that the court may not order such adjournment
    56  in contemplation of dismissal or dismiss the accusatory  instrument  if:

        A. 8798                             4

     1  (a)  the  defendant  has  previously  been  granted  such adjournment in
     2  contemplation of dismissal, or (b) the  defendant  has  previously  been
     3  granted  a dismissal under this section, or (c) the defendant has previ-
     4  ously  been convicted of any offense involving controlled substances, or
     5  (d) the defendant has previously been  convicted  of  a  crime  and  the
     6  district  attorney  does not consent or (e) the defendant has previously
     7  been adjudicated a youthful offender on the basis of  any  act  or  acts
     8  involving  controlled  substances  and  the  district  attorney does not
     9  consent].
    10    2.  [Upon ordering the action adjourned in contemplation of dismissal,
    11  the court must set and specify such conditions for  the  adjournment  as
    12  may  be appropriate, and such conditions may include placing the defend-
    13  ant under the supervision of any public or private agency. At  any  time
    14  prior  to  dismissal  the  court  may modify the conditions or extend or
    15  reduce the term of the adjournment, except  that  the  total  period  of
    16  adjournment  shall  not  exceed  twelve  months.   Upon violation of any
    17  condition fixed by the court, the court may revoke its order and restore
    18  the case to the calendar and the prosecution thereupon must proceed.  If
    19  the case is not so restored to the calendar during the period  fixed  by
    20  the court, the accusatory instrument is, at the expiration of such peri-
    21  od,  deemed  to  have  been dismissed in the furtherance of justice.] An
    22  adjournment in contemplation of  dismissal  is  an  adjournment  of  the
    23  action without date ordered intended for the dismissal of the accusatory
    24  instrument  in  furtherance  of justice. Upon issuing such an order, the
    25  court must release the defendant on his own recognizance.   At any  time
    26  prior  to  dismissal  the  court  may modify the conditions or extend or
    27  reduce the term of adjournment, except that the total period of adjourn-
    28  ment shall not exceed ninety days. Upon violation of any condition fixed
    29  by the court, the court shall revoke its order and restore the  case  to
    30  the  calendar  and  the  prosecution  may proceed. If the case is not so
    31  restored to the calendar during the period fixed by the court, the accu-
    32  satory instrument is, at the expiration of such period, deemed  to  have
    33  been dismissed. This section does not apply to family offense matters as
    34  defined in subdivision one of section 530.11 of this chapter.
    35    3.    Upon or after dismissal of such charges against a defendant [not
    36  previously convicted of a crime,] the court shall order that  all  offi-
    37  cial  records [and papers, relating to the defendant's arrest and prose-
    38  cution], documents, pleadings, and records exchanged as part of  discov-
    39  ery  relating to the arrest, indictment, prosecution, conviction or plea
    40  agreement, whether on file with the court, a police agency, or  the  New
    41  York  state division of criminal justice services, be sealed and, except
    42  as otherwise provided in paragraph (d) of  subdivision  one  of  section
    43  160.50  of  this  chapter, not made available to any person or public or
    44  private agency; except, [such records  shall  be  made  available  under
    45  order  of  a court for the purpose of determining whether, in subsequent
    46  proceedings, such person qualifies under this section for a dismissal or
    47  adjournment in contemplation of dismissal of the accusatory  instrument]
    48  by subsequent court order or as required by subdivision eight of section
    49  160.58 of this title.
    50    4.    Upon  the  granting of an order pursuant to subdivision three of
    51  this section, the arrest and prosecution shall be deemed a  nullity  and
    52  the  defendant shall be restored, in contemplation of law, to the status
    53  he occupied before his arrest and prosecution.
    54    § 7. This act shall take effect on the sixtieth  day  after  it  shall
    55  have become a law.
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