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AB3799 Text:



 
                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.
                                                                   LBD04693-01-3

        A. 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.
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