Allows petitions to conditionally seal certain drug convictions; establishes when a person may petition for the record of any eligible felony or any eligible misdemeanor to be conditionally sealed.
STATE OF NEW YORK
________________________________________________________________________
5633
2009-2010 Regular Sessions
IN ASSEMBLY
February 17, 2009
___________
Introduced by M. of A. AUBRY, PERALTA, GREENE, POWELL, MILLMAN, TITUS,
WRIGHT -- Multi-Sponsored by -- M. of A. BOYLAND, GLICK, HOOPER, PRET-
LOW, ROBINSON, TOWNS -- read once and referred to the Committee on
Codes
AN ACT to amend the criminal procedure law and the executive law, in
relation to the conditional sealing of drug convictions
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 Petition to conditionally seal certain convictions.
4 1. As used in this section, the following terms shall mean as follows:
5 (a) "eligible felony" shall be a felony offense defined in article two
6 hundred twenty or two hundred twenty-one of the penal law;
7 (b) "eligible misdemeanor" shall be a misdemeanor offense defined in
8 article two hundred twenty or two hundred twenty-one of the penal law;
9 and
10 (c) "specified offense" means an offense that would make a person
11 ineligible for merit time under section eight hundred three of the
12 correction law or an offense for which registration as a sex offender is
13 required as set forth in subdivision two or three of section one hundred
14 sixty-eight-a of the correction law. Specified offense shall also
15 include an offense in any other jurisdiction that includes all the
16 essential elements of an offense described in this paragraph.
17 2. A person may petition for the record of any eligible felony or any
18 eligible misdemeanor to be conditionally sealed:
19 (a) upon the person's completion of a sentence, and any period of
20 post-release supervision where applicable, on an eligible felony,
21 provided that such person has completed a chemical dependence treatment
22 program, and does not stand convicted of a specified offense;
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD04386-02-9
A. 5633 2
1 (b) upon completion of a sentence on an eligible misdemeanor, provided
2 that such person does not stand convicted of a specified offense;
3 (c) two years after the completion of a sentence, and any period of
4 post-release supervision where applicable, on a class D or E eligible
5 felony, provided that such person has not been convicted of any crime
6 for the last two years, and does not stand convicted of a specified
7 offense; or
8 (d) four years after the completion of a sentence, and any period of
9 post-release supervision where applicable, on a class B or C eligible
10 felony, provided that such person has not been convicted of any crime
11 for the last four years, and does not stand convicted of a specified
12 offense.
13 3. A petition authorized by this section shall include:
14 (a) identification of the conviction or convictions for which the
15 petitioner is seeking relief;
16 (b) documentation that the sentence imposed on the conviction or
17 convictions has been completed and date of completion, or if such
18 documentation is not reasonably available, a sworn affidavit that the
19 sentence imposed on the conviction or convictions has been completed and
20 date of completion;
21 (c) for petitions filed under paragraph (a) of subdivision two of this
22 section, evidence that the petitioner completed a chemical dependence
23 treatment program and that the petitioner is not dependent on alcohol or
24 drugs except as prescribed by a medical practitioner;
25 (d) a sworn affidavit that no criminal charges are pending against the
26 petitioner and the petitioner has not been convicted of a specified
27 offense; and
28 (e) any other supporting materials that would assist in determining
29 whether it would be in the interest of justice to grant the petition.
30 4. (a) The petition shall be filed with the state board of parole, and
31 the petitioner shall notify the district attorney of each jurisdiction
32 in which the petitioner was convicted of a crime within twenty days of
33 the date the petition was filed. The district attorney, within thirty
34 days of receiving notice of the petition, may submit materials in
35 support of the petition or to demonstrate that the interest of justice
36 would not be served by granting the petition. The state board of parole
37 shall request from the division of criminal justice services a copy of
38 the petitioner's current criminal history record, including any sealed
39 conviction information.
40 (b) The state board of parole shall determine whether the petitioner
41 has demonstrated, by a preponderance of the evidence, that it would be
42 in the interest of justice to grant the petition. In making its determi-
43 nation, the state board of parole shall consider the following factors:
44 (i) the circumstances and seriousness of the offense or offenses that
45 resulted in the conviction or convictions; (ii) the character of the
46 petitioner, including evidence that the petitioner participated in and
47 successfully completed chemical dependence treatment or otherwise is in
48 recovery if it is determined that the petitioner has a history of chemi-
49 cal dependence; (iii) the criminal history of the petitioner; (iv) the
50 impact of granting the petition upon the rehabilitation of the petition-
51 er and on public safety; and (v) any other relevant factors.
52 (c) The state board of parole shall make a determination on the peti-
53 tion within ninety days of the date the petition was filed and shall
54 state in writing the reasons for its determination.
55 (d) Upon the granting of a petition, the state board of parole shall
56 issue a conditional sealing order and promptly notify in writing the
A. 5633 3
1 petitioner, the district attorney of each jurisdiction in which the
2 petitioner was convicted of a crime, and the division of criminal
3 justice services. The division of criminal justice services shall notify
4 the clerk of the court where such actions or proceedings shall be
5 sealed, the heads of all appropriate police departments and other law
6 enforcement agencies of the conditional sealing order. Upon such notifi-
7 cation, records shall be sealed in a manner consistent with section
8 160.50 of this article. The state board of parole shall also notify the
9 petitioner that any subsequent charge for any misdemeanor or felony
10 shall conditionally unseal the record of the conviction or convictions
11 and that if such charge results in a conviction for a crime, the condi-
12 tional sealing order will be automatically vacated.
13 (e) If the petition is denied, the state board of parole shall prompt-
14 ly notify in writing the petitioner and any district attorney who
15 submitted materials pursuant to this subdivision.
16 (f) Pursuant to section 160.70 of this article, the petitioner and the
17 district attorney of each jurisdiction in which the petitioner was
18 convicted of a crime may bring a motion in court to reverse or modify
19 the state board of parole's determination on the petition. If the
20 records to be conditionally sealed include an eligible felony, a motion
21 filed under this paragraph shall be made in the court of record that
22 last imposed sentence upon the petitioner for an eligible felony. If the
23 records to be sealed include only eligible misdemeanors, a motion filed
24 under this paragraph shall be made to the court that last imposed a
25 sentence upon petitioner for an eligible misdemeanor.
26 5. In the event that a person who has had a record conditionally
27 sealed under this section is subsequently charged with a crime, the
28 records relating to the conviction or convictions shall be conditionally
29 unsealed pending the final disposition of the charge. If such charge
30 results in a conviction of a crime, the conditional sealing order shall
31 be deemed automatically vacated. The division of criminal justice
32 services and any other entity subject to such order shall unseal any
33 records that had been sealed by virtue of this section. All records
34 unsealed pursuant to this subdivision shall be restored to their
35 original status and treated as though the conditional sealing order had
36 not been entered. If such subsequent charge results in proceedings that
37 are terminated in favor of the accused as described in subdivision three
38 of section 160.50 of this article or by conviction for a noncriminal
39 offense as described in section 160.55 of this article, the original
40 conditional sealing order shall remain in effect.
41 6. For purposes of this section, conditional sealing shall mean that
42 the records of the subject conviction or convictions are sealed as
43 provided in section 160.50 of this article, and shall not be made avail-
44 able to any person or public or private agency, except such records
45 shall be made available to: (a) the petitioner or to such petitioner's
46 designated agent; (b) a prosecutor, a law enforcement agency, or a court
47 which has responsibility for criminally investigating, prosecuting, or
48 adjudicating the petitioner; (c) any state or local office or agency
49 with responsibility for the issuance of licenses to possess guns, when
50 the petitioner has made application for such a license; (d) any prospec-
51 tive employer of a police officer or peace officer as those terms are
52 defined in subdivisions thirty-three and thirty-four of section 1.20 of
53 this chapter, in relation to an application for employment as a police
54 officer or peace officer; provided, however, that every person who is an
55 applicant for the position of police officer or peace officer shall be
56 furnished with a copy of all records obtained under this paragraph and
A. 5633 4
1 afforded an opportunity to make an explanation thereto; (e) persons or
2 public or private agencies who are mandated by law to fingerprint indi-
3 viduals as part of a background check; and (f) prospective employers of
4 caregivers who submit fingerprints to the division of criminal justice
5 services under section eight hundred thirty-seven-n of the executive
6 law. Records conditionally sealed pursuant to this section shall also
7 be made available, if otherwise admissible, for use before the jury, or
8 the judge as trier of fact, if the person who is the subject of the
9 record is a witness as defined in paragraph (b) or (c) of subdivision
10 one or paragraph (b) or (c) of subdivision two of section 240.45 of this
11 chapter.
12 7. The intentional dissemination or the improper and intentional
13 acquisition of information that has been sealed pursuant to this section
14 may result in a civil penalty of up to one thousand dollars for each
15 such violation. The civil penalty provided for in this subdivision may
16 be recovered in a civil action brought by the attorney general.
17 § 2. The criminal procedure law is amended by adding a new section
18 160.70 to read as follows:
19 § 160.70 Court determinations relating to petitions to conditionally
20 seal certain convictions.
21 When the court which imposed sentence for an eligible felony or eligi-
22 ble misdemeanor as described in subdivision one of section 160.65 of
23 this article receives a motion pursuant to paragraph (f) of subdivision
24 four of such section 160.65, such court shall determine whether the
25 decision by the state board of parole was reasonable according to the
26 factors set forth in paragraph (b) of subdivision four of such section
27 160.65. In making this determination, the court shall only consider the
28 record that was before the state board of parole at the time of the
29 board's decision. The court shall have access to all materials reviewed
30 by the state board of parole in making its determination. Each party
31 shall have an opportunity to be heard. After deciding the motion, the
32 court shall remit the matter for a final determination by the state
33 board of parole, which shall be consistent with the court's ruling.
34 § 3. Section 160.60 of the criminal procedure law, as amended by chap-
35 ter 877 of the laws of 1976, is amended to read as follows:
36 § 160.60 Effect of termination of criminal actions in favor of the
37 accused.
38 Upon the termination of a criminal action or proceeding against a
39 person in favor of such person, as defined in subdivision two of section
40 160.50 of this [chapter] article, or upon the conditional sealing of a
41 conviction or convictions, as defined in section 160.65 of this article,
42 the arrest [and], prosecution and conviction or convictions condi-
43 tionally sealed shall be deemed a nullity and the accused shall be
44 restored, in contemplation of law, to the status he occupied before the
45 arrest [and], prosecution and conviction or convictions. The arrest
46 [or], prosecution, conviction or convictions conditionally sealed shall
47 not operate as a disqualification of any person so accused to pursue or
48 engage in any lawful activity, occupation, profession, or calling.
49 Except where specifically required in such section 160.65 or permitted
50 by statute or upon specific authorization of a superior court, no such
51 person shall be required to divulge information pertaining to the arrest
52 [or], prosecution, conviction or convictions conditionally sealed. In
53 the case of a conviction conditionally sealed, an employer, except those
54 persons or public or private agencies who are mandated by law to finger-
55 print individuals as part of a background check and prospective employ-
56 ers of caregivers under section eight hundred thirty-seven-n of the
A. 5633 5
1 executive law, may only ask whether a person has been convicted of a
2 crime that has not been conditionally sealed. In the event that an
3 employer asks an unlawful question, the person shall only have to reveal
4 those criminal convictions that have not been conditionally sealed.
5 § 4. Subdivision 16 of section 296 of the executive law, as amended by
6 chapter 639 of the laws of 2007, is amended to read as follows:
7 16. It shall be an unlawful discriminatory practice, unless specif-
8 ically required or permitted by statute, for any person, agency, bureau,
9 corporation or association, including the state and any political subdi-
10 vision thereof, to make any inquiry about, whether in any form of appli-
11 cation or otherwise, or to act upon adversely to the individual
12 involved, any arrest or criminal accusation of such individual not then
13 pending against that individual which was followed by a termination of
14 that criminal action or proceeding in favor of such individual, as
15 defined in subdivision two of section 160.50 of the criminal procedure
16 law, or by a youthful offender adjudication, as defined in subdivision
17 one of section 720.35 of the criminal procedure law, or by a conviction
18 for a violation sealed pursuant to section 160.55 of the criminal proce-
19 dure law or any conviction or convictions that have been conditionally
20 sealed, as defined in section 160.65 of the criminal procedure law, in
21 connection with the licensing, employment or providing of credit or
22 insurance to such individual; provided, however, that the provisions
23 hereof shall not apply to the licensing activities of governmental
24 bodies in relation to the regulation of guns, firearms and other deadly
25 weapons or in relation to an application for employment as a police
26 officer or peace officer as those terms are defined in subdivisions
27 thirty-three and thirty-four of section 1.20 of the criminal procedure
28 law; provided further that the provisions of this subdivision shall not
29 apply to an application for employment or membership in any law enforce-
30 ment agency with respect to any arrest or criminal accusation which was
31 followed by a youthful offender adjudication, as defined in subdivision
32 one of section 720.35 of the criminal procedure law, or by a conviction
33 for a violation sealed pursuant to section 160.55 of the criminal proce-
34 dure law.
35 § 5. This act shall take effect on the ninetieth day after it shall
36 have become a law and shall apply to all convictions occurring prior to,
37 on, and after the effective date.
