STATE OF NEW YORK
________________________________________________________________________
1447--A
2015-2016 Regular Sessions
IN SENATE
January 12, 2015
___________
Introduced by Sen. GOLDEN -- read twice and ordered printed, and when
printed to be committed to the Committee on Children and Families --
recommitted to the Committee on Children and Families in accordance
with Senate Rule 6, sec. 8 -- committee discharged, bill amended,
ordered reprinted as amended and recommitted to said committee
AN ACT to amend the social services law, the criminal procedure law and
the civil practice law and rules, in relation to assisting and
protecting victims of domestic violence, child abuse and child neglect
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Legislative intent. Presently, a person convicted of
2 harassment, which is only a violation under the penal law, enjoys an
3 automatic seal on his or her criminal record. Harassment often includes
4 matters of domestic violence. In subsequent proceedings between the
5 victim of the violence and the convicted aggressor, the record of the
6 criminal court, the police arrest and investigation, and the aggressor's
7 conviction, admissions or orders of protection in the criminal matter
8 are not available to the victim to prove that the domestic violence
9 occurred; making it difficult for the victim to protect himself or
10 herself against further aggression or obtain justice in family court or
11 other civil proceedings. This act will allow the victim or victim's
12 representative to obtain a judicial subpoena releasing such record to
13 the family or supreme court.
14 Likewise, where an investigation by child protective services "indi-
15 cates" the abuse or neglect of a child, the state law allows the subject
16 of the report the ability to amend the report to "unfounded" without any
17 notice or opportunity to object to the amendment being given to the
18 victim of the abuse or neglect. As a result, if amended, even by
19 default, the victim or co-parent cannot access the record of the inves-
20 tigation in subsequent family or supreme court proceedings. Further,
21 the person previously "indicated" can use the amended report as a weapon
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD00955-02-6
S. 1447--A 2
1 against the opposing party to show that their allegation, or belief in
2 the allegation, was frivolous. Even where the "indicated" finding is
3 properly amended to "unfounded," and the accused was frivolously victim-
4 ized by the allegations of their opposing party, the reporting law
5 shields the identity of the false reporter. This act, therefore,
6 protects the victims of child abuse, child neglect and wrongful accusa-
7 tions of child abuse and neglect by opening the records of the central
8 registry by judicial subpoena.
9 Finally, the state legislature enacted a hearsay exception to a
10 child's statements of abuse or neglect in section 1065 of the family
11 court act. Justifiably, if not technically correct, the state's appel-
12 late courts have expanded such section's exception to custody, divorce
13 and child support proceedings. However, this exception is not currently
14 available in every matter where domestic violence, child abuse or child
15 neglect may be at issue (i.e. surrogate court matters, tort actions, or
16 family offenses). This act allows the judges, parens patria, to provide
17 further protection to children in consideration of their particular
18 emotional immaturity and fragility, while preventing convictions on only
19 the allegations of a child.
20 § 2. Subparagraphs (iv) and (v) of paragraph (a) of subdivision 5 of
21 section 422 of the social services law, subparagraph (iv) as amended by
22 chapter 555 of the laws of 2000 and subparagraph (v) as amended by chap-
23 ter 256 of the laws of 2014, are amended to read as follows:
24 (iv) to the subject of the report; [and]
25 (v) to a district attorney, an assistant district attorney, an inves-
26 tigator employed in the office of a district attorney, or to a sworn
27 officer of the division of state police, of a city, county, town or
28 village police department or of a county sheriff's office when such
29 official verifies that the report is necessary to conduct an active
30 investigation or prosecution of a violation of subdivision four of
31 section 240.50 of the penal law; and
32 (vi) on judicial subpoena of the family or supreme court where the
33 protection of a child or a false allegation of child abuse or neglect is
34 at issue and the subject of the report is a party to an action therein.
35 § 3. Subdivision 7 of section 422 of the social services law, as
36 amended by chapter 434 of the laws of 1989, is amended to read as
37 follows:
38 7. At any time, a subject of a report [and], other persons named in
39 the report or their guardians or custodians, and the family or supreme
40 court by judicial subpoena and where the protection of a child or false
41 allegations of child abuse or neglect is at issue and the subject of the
42 report is a party to an action therein, may receive, upon request, a
43 copy of all information contained in the central register; provided,
44 however, that the commissioner is authorized, except when the request is
45 made by judicial subpoena and the reporter is a party to the action, to
46 prohibit the release of data that would identify the person who made the
47 report or who cooperated in a subsequent investigation or the agency,
48 institution, organization, program or other entity where such person is
49 employed or with which he is associated, which he reasonably finds will
50 be detrimental to the safety or interests of such person.
51 § 4. Subparagraph (i) of paragraph (a) and subparagraphs (i) and (ii)
52 of paragraph (b) of subdivision 8 of section 422 of the social services
53 law, as amended by chapter 12 of the laws of 1996, are amended and a new
54 paragraph (f) is added to read as follows:
55 (i) At any time subsequent to the completion of the investigation but
56 in no event later than ninety days after the subject of the report is
S. 1447--A 3
1 notified that the report is indicated the subject may request the
2 commissioner to amend the record of the report. The commissioner shall
3 mail to the victim's parent, guardian or custodian notice of the
4 subject's request to amend and the basis upon which the amendment is
5 sought. Such parent, guardian or custodian may object to the amendment
6 within thirty days of notice by mailing his or her objection to the
7 commissioner. If the commissioner does not amend the report in accord-
8 ance with such request within ninety days of receiving the request, the
9 subject shall have the right to a fair hearing, held in accordance with
10 paragraph (b) of this subdivision, to determine whether the record of
11 the report in the central register should be amended on the grounds that
12 it is inaccurate or it is being maintained in a manner inconsistent with
13 this title.
14 (i) If the department, within ninety days of receiving a request from
15 the subject that the record of a report be amended, does not amend the
16 record in accordance with such request, the department shall schedule a
17 fair hearing and shall provide notice of the scheduled hearing date to
18 the subject, the statewide central register [and, as appropriate, to],
19 the child protective service or the state agency which investigated the
20 report, the adult victim, or the minor victim's parent, guardian or
21 custodian. Such parent, guardian or custodian may appear in person, or
22 by an attorney, to object to the requested amendment and present
23 witnesses, sworn statements and other evidence for presentation to the
24 hearing officer.
25 (ii) The burden of proof in such a hearing shall be on the child
26 protective service or the state agency which investigated the report,
27 the adult victim, or the minor victim's parent, guardian or custodian,
28 as the case may be. In such a hearing, the fact that there is a family
29 court finding of abuse or neglect against the subject in regard to an
30 allegation contained in the report shall create an irrebuttable presump-
31 tion that said allegation is substantiated by some credible evidence.
32 (f) An adult victim, or the minor victim's parent, guardian or custo-
33 dian may seek to vacate an amendment made pursuant to paragraph (e) of
34 this subdivision within one year of the effective date of this paragraph
35 or knowledge that such an amendment has been made without such parent,
36 guardian or custodian receiving notice of hearing or the subject's
37 request to amend. The adult victim, or the minor victim's parent, guard-
38 ian or custodian seeking to vacate an unnoticed amendment shall state
39 with particularity the date that they became aware that an amendment was
40 made and the evidence he or she will present that demonstrates the
41 commissioner's error in amendment. The commissioner shall schedule a
42 rehearing date, and shall immediately inform the subject of the formerly
43 indicated report, the adult victim or minor victim's parent, guardian or
44 custodian, and the child protective service or the state agency that
45 investigated the report.
46 § 5. Paragraph (d) of subdivision 1 of section 160.55 of the criminal
47 procedure law, as amended by chapter 449 of the laws of 2015, is amended
48 to read as follows:
49 (d) the records referred to in paragraph (c) of this subdivision shall
50 be made available to the person accused or to such person's designated
51 agent, and shall be made available to (i) a prosecutor in any proceeding
52 in which the accused has moved for an order pursuant to section 170.56
53 or 210.46 of this chapter, or (ii) a law enforcement agency upon ex
54 parte motion in any superior court, or in any district court, city court
55 or the criminal court of the city of New York provided that such court
56 sealed the record, if such agency demonstrates to the satisfaction of
S. 1447--A 4
1 the court that justice requires that such records be made available to
2 it, or (iii) any state or local officer or agency with responsibility
3 for the issuance of licenses to possess guns, when the accused has made
4 application for such a license, or (iv) the New York state department of
5 corrections and community supervision when the accused is under parole
6 supervision as a result of conditional release or parole release granted
7 by the New York state board of parole and the arrest which is the
8 subject of the inquiry is one which occurred while the accused was under
9 such supervision, or (v) the probation department responsible for super-
10 vision of the accused when the arrest which is the subject of the
11 inquiry is one which occurred while the accused was under such super-
12 vision, or (vi) a police agency, probation department, sheriff's office,
13 district attorney's office, department of correction of any municipality
14 and parole department, for law enforcement purposes, upon arrest in
15 instances in which the individual stands convicted of harassment in the
16 second degree, as defined in section 240.26 of the penal law, committed
17 against a member of the same family or household as the defendant, as
18 defined in subdivision one of section 530.11 of this chapter, and deter-
19 mined pursuant to subdivision eight-a of section 170.10 of this title,
20 or (vii) upon receipt of a judicial subpoena, the family or the supreme
21 court in a matter where domestic violence, the protection of a child, or
22 a false allegation of domestic violence, abuse or neglect is at issue
23 and the defendant is a party to the action therein; and
24 § 6. The civil practice law and rules is amended by adding a new
25 section 4549 to read as follows:
26 § 4549. Evidence of child's statements regarding domestic violence,
27 abuse or neglect. 1. Previous statements made by a child relating to any
28 allegations of domestic violence or child abuse or neglect shall be
29 generally admissible in evidence, but if uncorroborated, such statement
30 shall not be sufficient to make a fact-finding of abuse or neglect. Any
31 other evidence tending to support the reliability of the child's previ-
32 ous statements shall be generally admissible and sufficient corrob-
33 oration. The testimony of the child shall not be necessary to make a
34 fact-finding of domestic violence, abuse or neglect.
35 2. The presiding judge may, however, issue an order prohibiting the
36 divulging of the contents of such statements to any entity or person
37 other than the court, litigants, their counsel and any witness deemed
38 necessary to the proceedings.
39 § 7. This act shall take effect immediately.
