STATE OF NEW YORK
________________________________________________________________________
10571
IN ASSEMBLY
June 6, 2012
___________
Introduced by COMMITTEE ON RULES -- (at request of M. of A. Lentol) --
read once and referred to the Committee on Codes
AN ACT to amend the criminal procedure law and the executive law, in
relation to authorizing the sealing of certain records of conviction
or adjudication
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The criminal procedure law is amended by adding a new
2 section 160.65 to read as follows:
3 § 160.65 Sealing record of conviction or adjudication.
4 1. Eligible applicants. (a) A person is eligible to apply to seal a
5 record of conviction, or in the case of youthful offenders, an adjudi-
6 cation, subject to the provisions of this section.
7 (b) The record sought to be sealed shall be the person's only felony
8 criminal conviction or adjudication.
9 (c) In the case of misdemeanors, no more than three misdemeanor
10 convictions or adjudications are subject to sealing pursuant to this
11 section.
12 (d) Further, a person shall be duly terminated and discharged from
13 every aspect of the sentence, including incarceration, probation,
14 parole, conditional release, post-release supervision, conditional
15 discharge, and/or any order of protection on this or any other matter
16 against the person must have expired. There can be no undisposed arrests
17 at the time of application.
18 2. Grade of crime. A person shall have been convicted of a non-crimi-
19 nal petty offense set forth in the penal law, or adjudicated a youthful
20 offender under section 720.35 of this chapter.
21 3. Type of crime. For the purposes of this section, no records involv-
22 ing sex crimes, crimes with victims who were children, crimes against
23 the elderly, or crimes involving public corruption are eligible for
24 sealing. Among felonies, only class D and E non-violent felonies are
25 eligible.
26 4. Waiting period. A person cannot apply until a waiting period,
27 beginning on the date that the most recent sentence or resentence is
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD15540-01-2
A. 10571 2
1 imposed, elapses. During this period there can be no convictions for a
2 crime. The following waiting periods shall apply under this section:
3 (a) For a person who has been convicted of an eligible petty offense,
4 the waiting period shall be two years from the date of the most recent
5 conviction.
6 (b) For a person who has been convicted of an eligible misdemeanor,
7 adjudicated youthful offender on a misdemeanor, or convicted of a non-
8 criminal offense, the waiting period shall be five years from the date
9 of the most recent conviction or adjudication.
10 (c) For a person who has been convicted of an eligible non-violent D
11 or E felony, or adjudicated youthful offender on a felony, the waiting
12 period shall be eight years from the date of conviction or adjudication.
13 5. The motion. A motion under this section shall be sworn to under
14 penalty of perjury and shall include:
15 (a) A list of each of the person's convictions in New York state, any
16 convictions in any other state or in federal court, the sentence for
17 each such conviction and the date of the sentence. Non-criminal
18 convictions outside New York state need not be included.
19 (b) A statement as to the termination of each aspect of the sentence
20 for each of the above-listed convictions, including the dates of termi-
21 nation from probation, parole or other supervisory sentences, a state-
22 ment as to the existence of order or orders of protection and the end
23 date of such, and a statement as to the completion of any conditional
24 sentences or any other conditions of sentence imposed by the court or by
25 law, although this shall not be construed to require a person to have
26 restored driving or other privileges that have been lost, suspended or
27 revoked due to the conviction.
28 (c) A description of the nature and circumstances of each crime listed
29 in paragraph (a) of this subdivision.
30 (d) A description of the nature of the person's personal circumstances
31 since the conviction, which shall establish that the petitioner is enti-
32 tled to the relief provided in this section.
33 6. Filing fee. Motions under this section shall be accompanied by a
34 fee of ninety-five dollars. The filing fee shall be waived only upon a
35 finding of a person's indigence. When imposed, the filing fee shall be
36 paid to the clerk of the court or administrative tribunal that rendered
37 the conviction.
38 7. Serving the motion. (a) The motion for sealing a record of
39 conviction shall be served upon the prosecuting agency that originally
40 prosecuted the case. If the person was on probation, the applicable
41 probation department shall be served. The motion for sealing a record of
42 conviction shall be made to the judge who originally sentenced the
43 person. In the event such judge is unavailable, or in the discretion of
44 the supervising or administrative judge of that court, motion shall be
45 made to a sitting judge in the court in which the conviction was
46 ordered.
47 (b) The prosecuting agency may file an answer to the motion prior to
48 the return date of the motion.
49 (c) The court may grant the motion on submissions if the prosecuting
50 agency does not file an opposition.
51 (d) If there is objection, the court must review the issues of fact
52 and law and determine the merits of the motion.
53 8. Factors to consider. (a) When reviewing the motion, the court may
54 consider any relevant factors, including but not limited to: (i) the
55 circumstances and seriousness of the offense or offenses that resulted
56 in the conviction or convictions, (ii) the character of the person
A. 10571 3
1 including what steps the person has taken since the time of the offense
2 toward personal rehabilitation, including treatment, work, school,
3 community service, or other personal history that demonstrates rehabili-
4 tation, (iii) the person's criminal history, (iv) the impact of sealing
5 the person's records upon his or her rehabilitation and his or her
6 successful and productive reentry and reintegration into society, and on
7 public safety, and (v) any statement made by the victim of the offense
8 where there is in fact a victim of the crime.
9 (b) The court shall grant the motion unless sealing the records will
10 harm public safety or would not serve the interests of justice. If the
11 court deems it necessary, the court may order a report as to the appli-
12 cant's background and circumstances from a local probation department,
13 or agency deemed qualified by the court to prepare such a report.
14 9. Hearings. Upon the request of either party or sua sponte, the court
15 may conduct a hearing as to any issue of fact or law or in the court's
16 discretion, may hear testimony or accept written submissions relating
17 the merits of the motion or any matter deemed appropriate by the court
18 in furtherance of determining the motion. When the court orders a hear-
19 ing and the person is financially unable to afford counsel, the court
20 shall assign counsel.
21 10. Decision on an application. A decision granting or denying a
22 motion under this section shall be in writing and shall state the
23 reasons for the court's ruling, unless the court grants the motion with-
24 out objection or written response by the prosecutor, in which case the
25 court may issue an order without a written decision. If sealing is
26 denied, the person can reapply after one year.
27 11. Effect of sealing. A sealed conviction shall not operate as a
28 disqualification of any person to pursue or engage in any lawful activ-
29 ity, occupation, profession or calling unless so ordered by the court.
30 Except where specifically required or permitted by statute or upon spec-
31 ified authorization of a superior court, no such person shall be
32 required to divulge information pertaining to the sealed record. Such
33 person shall be permitted to respond in the negative to the question
34 "Have you ever been convicted of a crime or violation?" or to any ques-
35 tion with the same substantive content. The protection is the same as
36 section 160.50 of this article: a nullity. Under existing law, non-go-
37 vernmental employers are not permitted to ask prospective applicants if
38 they have been arrested.
39 12. Sealing process. When a court orders sealing pursuant to this
40 section, all official records and papers relating to the arrests,
41 detentions, prosecutions, and convictions, including all duplicates and
42 copies thereof, on file with the division of criminal justice services
43 or any court shall be sealed and not made available to any person or
44 public or private agency; provided, however, the division shall retain
45 any fingerprints, palm prints, photographs, or digital images of the
46 same. Sealing shall not have any impact on DNA evidence or information
47 on file. Records shall be unsealed only pursuant to court order except
48 that the following agencies may maintain records in the following
49 manner:
50 (a) The division of criminal justice services shall maintain a sealed
51 record in its database in a manner that will not be accessible to anyone
52 other than law enforcement agents or prosecution agencies in the course
53 of a criminal investigation or prosecution, or upon a court order or
54 court-ordered subpoena ordering release of the information. In the event
55 the person is arrested subsequent to the sealing of the records, the
56 unsealed record shall be included in the division of criminal justice
A. 10571 4
1 services "NYSID" sheet that is printed out based on the person's finger-
2 prints. A court, upon determining it is in the interests of justice to
3 unseal such a record, shall order its unsealing, which shall allow the
4 prosecutor and the court to unseal the records of their agency pertain-
5 ing to that arrest. Any such unsealed files shall be made available to
6 the person and his or her attorney.
7 (b) The department of corrections and community supervision and all
8 local jail or prison agencies shall maintain sealed records in a manner
9 that precludes the public from obtaining information relating to the
10 arrest, detention or conviction of the person whose record has been
11 sealed, including but not limited to removal from all publicly available
12 databases on the internet and otherwise. However, such agencies shall
13 maintain a record of persons who have been in custody which shall be
14 kept by a custodian of those records within the agency. In the event
15 the person shall be readmitted to the facility, the custodian is author-
16 ized to re-open such files, to be used solely for the agency's official
17 purposes.
18 13. Unsealing for cause. If, subsequent to the sealing of misdemeanor
19 records, felony records, or youthful offender adjudication records that
20 have substituted for a misdemeanor or felony conviction pursuant to this
21 section, the person who is the subject of such records is arrested for
22 or formally charged with any misdemeanor or felony offense, such records
23 shall "spring back" and be unsealed immediately and remain unsealed;
24 provided, however, that if such new misdemeanor or felony arrest results
25 in a termination in favor of the person as defined in subdivision three
26 of section 160.50 of this article or by conviction for a non-criminal
27 offense as described in section 160.55 of this article, such unsealed
28 records shall be re-sealed pursuant to this section. Nothing in this
29 section shall change the sentencing provisions in the penal law. A
30 sealed record, unsealed at the time of a re-arrest, shall continue to
31 qualify as a conviction for sentencing purposes and may be used to
32 establish an element of a crime as provided in the penal law.
33 14. Publishing sealed information. It shall be a class A misdemeanor
34 to publish information regarding the arrest, detention or conviction of
35 a person whose record has been sealed. A person aggrieved by a violation
36 of this section shall have the right to institute a civil proceeding,
37 regardless of whether a criminal action was commenced. A person is enti-
38 tled to five hundred dollars for each occurrence along with the actual
39 damages caused by the disclosure of such sealed record. Law enforcement,
40 prosecution officials and employees of the office of court adminis-
41 tration shall have a defense to a criminal or civil action under this
42 section if they believed, in good faith, that they were permitted or
43 required by law to disclose a sealed conviction. There shall be no
44 prosecutorial or law enforcement immunity under this section for any
45 government official who knowingly and intentionally publishes a sealed
46 record which such official knows to have been sealed under this section.
47 If a conviction is unsealed pursuant to a new arrest, the provisions of
48 this subdivision shall not apply.
49 15. Appeals. Either party may appeal as of right from the court's
50 order. The appealing party shall serve notice of appeal upon the court
51 and the opposing party within thirty days of the service of the court
52 order. If the order is appealed by the prosecuting agency, such notice
53 of appeal shall be deemed a stay of the order to seal the records. The
54 prosecuting agency shall perfect the appeal within sixty days, or the
55 sealing order shall immediately take effect unless the court grants an
56 extension of the time to perfect the appeal upon good cause shown by the
A. 10571 5
1 prosecutor. The appeal shall be taken to the same court to which the
2 appeal of the original conviction could have been brought. The standard
3 of review at the intermediate appellate court shall be abuse of
4 discretion. The decision of an intermediate appellate court shall be
5 appealable to the New York state court of appeals upon the issuance of a
6 certificate granting leave pursuant to section 460.20 of this part.
7 16. Waiver of right impermissible. The waiver of the right to make an
8 application under this section may not be a condition of a guilty plea
9 entered in any case in New York state.
10 § 2. Subdivision 16 of section 296 of the executive law, as separately
11 amended by section 3 of part N and section 14 of part AAA of chapter 56
12 of the laws of 2009, is amended to read as follows:
13 16. It shall be an unlawful discriminatory practice, unless specif-
14 ically required or permitted by statute, for any person, agency, bureau,
15 corporation or association, including the state and any political subdi-
16 vision thereof, to make any inquiry about, whether in any form of appli-
17 cation or otherwise, or to act upon adversely to the individual
18 involved, any arrest or criminal accusation of such individual not then
19 pending against that individual which was followed by a termination of
20 that criminal action or proceeding in favor of such individual, as
21 defined in subdivision two of section 160.50 of the criminal procedure
22 law, or by a youthful offender adjudication, as defined in subdivision
23 one of section 720.35 of the criminal procedure law, or by a conviction
24 for a violation sealed pursuant to section 160.55 of the criminal proce-
25 dure law or by a conviction which is sealed pursuant to section 160.58
26 of the criminal procedure law, or by a conviction which is sealed pursu-
27 ant to section 160.65 of the criminal procedure law, in connection with
28 the licensing, employment or providing of credit or insurance to such
29 individual; provided, further, that no person shall be required to
30 divulge information pertaining to any arrest or criminal accusation of
31 such individual not then pending against that individual which was
32 followed by a termination of that criminal action or proceeding in favor
33 of such individual, as defined in subdivision two of section 160.50 of
34 the criminal procedure law, or by a youthful offender adjudication, as
35 defined in subdivision one of section 720.35 of the criminal procedure
36 law, or by a conviction for a violation sealed pursuant to section
37 160.55 of the criminal procedure law, or by a conviction which is sealed
38 pursuant to section 160.58 of the criminal procedure law, or by a
39 conviction which is sealed pursuant to section 160.65 of the criminal
40 procedure law. The provisions of this subdivision shall not apply to the
41 licensing activities of governmental bodies in relation to the regu-
42 lation of guns, firearms and other deadly weapons or in relation to an
43 application for employment as a police officer or peace officer as those
44 terms are defined in subdivisions thirty-three and thirty-four of
45 section 1.20 of the criminal procedure law; provided further that the
46 provisions of this subdivision shall not apply to an application for
47 employment or membership in any law enforcement agency with respect to
48 any arrest or criminal accusation which was followed by a youthful
49 offender adjudication, as defined in subdivision one of section 720.35
50 of the criminal procedure law, or by a conviction for a violation sealed
51 pursuant to section 160.55 of the criminal procedure law, or by a
52 conviction which is sealed pursuant to section 160.58 of the criminal
53 procedure law, or by a conviction which is sealed pursuant to section
54 160.65 of the criminal procedure law.
55 § 3. This act shall take effect on the one hundred eightieth day after
56 it shall have become a law and shall apply to all convictions occurring
A. 10571 6
1 prior to, on, and after such date. Effective immediately, the addition,
2 amendment and/or repeal of any rule or regulation necessary for the
3 implementation of this act on its effective date is authorized to be
4 made on or before such date.
