•  Summary 
  •  
  •  Actions 
  •  
  •  Committee Votes 
  •  
  •  Floor Votes 
  •  
  •  Memo 
  •  
  •  Text 
  •  
  •  LFIN 
  •  
  •  Chamber Video/Transcript 

A08798 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         8798--A
 
                               2017-2018 Regular Sessions
 
                   IN ASSEMBLY
 
                                    November 27, 2017
                                       ___________
 
        Introduced  by M. of A. QUART -- 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, 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. In such case, the  court  may  also  conditionally
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD13750-06-8

        A. 8798--A                          2
 
     1  seal  the  arrest,  prosecution  and conviction records for no more than
     2  [three] five of the defendant's prior  [eligible]  misdemeanors,  [which
     3  for  purposes  of  this  subdivision  shall  be  limited  to misdemeanor
     4  offenses defined in article two hundred twenty or two hundred twenty-one
     5  of  the  penal law.   The court may only seal the records of the defend-
     6  ant's arrests, prosecutions and convictions when] provided that a misde-
     7  meanor for which registration as a sex offender is required shall not be
     8  sealed pursuant to this section. The court may seal such records 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;
    21    (c) the court has received documentation that the sentences imposed on
    22  the  [eligible]  misdemeanor  convictions  have been completed, or if no
    23  such 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 attor-
    30  ney  and  the court shall be given a reasonable opportunity, which shall
    31  not be less than thirty days, in which to comment and  submit  materials
    32  to 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 limited
    43  to the following factors: (i) the circumstances [and seriousness] of the
    44  offense or offenses that resulted in the conviction or convictions; (ii)
    45  [the character of the defendant, including his or her]  the  defendant's
    46  completion  of  the judicially sanctioned treatment program as described
    47  in subdivision one of  this  section;  (iii)  the  defendant's  criminal
    48  conviction  history  taking into account the time that has elapsed since
    49  the occurrence of any conviction and the age of  the  defendant  at  the
    50  time  of such conviction; and (iv) the impact of sealing the defendant's
    51  records upon his or her rehabilitation and his  or  her  successful  and
    52  productive reentry and reintegration into society, and on public safety.
    53    § 4. Subdivision 2 of section 170.55 of the criminal procedure law, as
    54  amended  by  chapter  222  of  the  laws  of 1994, is amended to read as
    55  follows:

        A. 8798--A                          3
 
     1    2. An adjournment in contemplation of dismissal is an  adjournment  of
     2  the  action  without date ordered [with a view to ultimate] intended for
     3  the dismissal of the accusatory instrument in  furtherance  of  justice.
     4  Upon  issuing such an order, the court must release the defendant on his
     5  own recognizance.  [Upon application of the people, made at any time not
     6  more  than  six months, or in the case of a family offense as defined in
     7  subdivision one of section 530.11 of this chapter, one year,  after  the
     8  issuance  of  such order, the court may restore the case to the calendar
     9  upon a determination that dismissal of the accusatory  instrument  would
    10  not be in furtherance of justice, and the action must thereupon proceed.
    11  If  the case is not so restored within such six months or one year peri-
    12  od, the accusatory instrument is, at  the  expiration  of  such  period,
    13  deemed  to  have been dismissed by the court in furtherance of justice.]
    14  At any time prior to dismissal the court may modify  the  conditions  or
    15  extend  or  reduce the term of adjournment, except that the total period
    16  of adjournment shall not exceed ninety days, or in the case of a  family
    17  offense  as  defined  in  section  530.11 of this chapter, the period of
    18  adjournment shall not be more than  one  year.  Upon  violation  of  any
    19  condition fixed by the court, the court may revoke its order and restore
    20  the case to the calendar and the prosecution may proceed. If the case is
    21  not  so  restored  to the calendar during the period fixed by the court,
    22  the accusatory instrument is, at the expiration of such  period,  deemed
    23  to have been dismissed.
    24    § 5. Section 170.56 of the criminal procedure law, as added by chapter
    25  1042 of the laws of 1971, subdivision 1 as amended by chapter 360 of the
    26  laws  of 1977 and subdivision 3 as amended by chapter 905 of the laws of
    27  1977, is amended to read as follows:
    28  § 170.56 Adjournment in contemplation of dismissal  in  cases  involving
    29             marihuana.
    30    1.  Upon or after arraignment in a local criminal court upon an infor-
    31  mation, a prosecutor's information or a misdemeanor complaint, where the
    32  sole  remaining  count  or  counts  charge  a violation or violations of
    33  section 221.05, 221.10, 221.15, 221.35 or 221.40 of the  penal  law  and
    34  before the entry of a plea of guilty thereto or commencement of  a trial
    35  thereof,  the  court,  upon  motion  of  a defendant, may order that all
    36  proceedings be suspended and the action adjourned  in  contemplation  of
    37  dismissal, or upon a finding that adjournment would not be necessary [or
    38  appropriate] and the setting forth in the record of the reasons for such
    39  findings,  may  dismiss in furtherance of justice the accusatory instru-
    40  ment[; provided, however, that the court may not order such  adjournment
    41  in  contemplation  of dismissal or dismiss the accusatory instrument if:
    42  (a) the defendant  has  previously  been  granted  such  adjournment  in
    43  contemplation  of  dismissal,  or  (b) the defendant has previously been
    44  granted a dismissal under this section, or (c) the defendant has  previ-
    45  ously  been convicted of any offense involving controlled substances, or
    46  (d) the defendant has previously been  convicted  of  a  crime  and  the
    47  district  attorney  does not consent or (e) the defendant has previously
    48  been adjudicated a youthful offender on the basis of  any  act  or  acts
    49  involving  controlled  substances  and  the  district  attorney does not
    50  consent].
    51    2.  [Upon ordering the action adjourned in contemplation of dismissal,
    52  the court must set and specify such conditions for  the  adjournment  as
    53  may  be appropriate, and such conditions may include placing the defend-
    54  ant under the supervision of any public or private agency. At  any  time
    55  prior  to  dismissal  the  court  may modify the conditions or extend or
    56  reduce the term of the adjournment, except  that  the  total  period  of

        A. 8798--A                          4

     1  adjournment  shall  not  exceed  twelve  months.   Upon violation of any
     2  condition fixed by the court, the court may revoke its order and restore
     3  the case to the calendar and the prosecution thereupon must proceed.  If
     4  the  case  is not so restored to the calendar during the period fixed by
     5  the court, the accusatory instrument is, at the expiration of such peri-
     6  od, deemed to have been dismissed in the  furtherance  of  justice.]  An
     7  adjournment  in  contemplation  of  dismissal  is  an adjournment of the
     8  action without date ordered intended for the dismissal of the accusatory
     9  instrument in furtherance of justice. Upon issuing such  an  order,  the
    10  court  must  release the defendant on his own recognizance.  At any time
    11  prior to dismissal the court may modify  the  conditions  or  extend  or
    12  reduce the term of adjournment, except that the total period of adjourn-
    13  ment shall not exceed ninety days. Upon violation of any condition fixed
    14  by the court, the court may revoke its order and restore the case to the
    15  calendar and the prosecution may proceed. If the case is not so restored
    16  to  the  calendar  during  the period fixed by the court, the accusatory
    17  instrument is, at the expiration of such period,  deemed  to  have  been
    18  dismissed.
    19    3.  Upon  or  after dismissal of such charges against a defendant [not
    20  previously convicted of a crime,] the court shall order that  all  offi-
    21  cial  records  and papers, relating to the defendant's arrest and prose-
    22  cution, whether on file with the court, a police agency, or the New York
    23  state division of criminal justice services, be sealed  and,  except  as
    24  otherwise provided in paragraph (d) of subdivision one of section 160.50
    25  of  this  chapter, not made available to any person or public or private
    26  agency[; except, such records shall be made available under order  of  a
    27  court for the purpose of determining whether, in subsequent proceedings,
    28  such  person qualifies under this section for a dismissal or adjournment
    29  in contemplation of dismissal of the accusatory instrument].
    30    4. Upon the granting of an order pursuant to subdivision three of this
    31  section, the arrest and prosecution shall be deemed a  nullity  and  the
    32  defendant  shall  be restored, in contemplation of law, to the status he
    33  occupied before his arrest and prosecution.
    34    § 6. This act shall take effect on the sixtieth  day  after  it  shall
    35  have become a law.
Go to top