- Floor Votes
Go to top
STATE OF NEW YORK ________________________________________________________________________ 3799 2013-2014 Regular Sessions IN ASSEMBLY January 29, 2013 ___________ 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. LBD04693-01-3A. 3799 2 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 section 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:A. 3799 3 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;A. 3799 4 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 individual 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 incarcera- 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.A. 3799 5 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.A. 3799 6 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.A. 3799 7 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-A. 3799 8 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.