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A06289 Summary:

BILL NOA06289B
 
SAME ASSAME AS S03104-A
 
SPONSORHevesi
 
COSPNSRGonzalez-Rojas, Cruz
 
MLTSPNSR
 
Add 301.5, amd 354.1, 375.1, 375.2, 381.2 & 381.3, Fam Ct Act
 
Relates to the confidentiality and expungement of records in juvenile delinquency cases in the family court; requires certain records to be expunged automatically.
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A06289 Actions:

BILL NOA06289B
 
04/03/2023referred to children and families
05/17/2023amend and recommit to children and families
05/17/2023print number 6289a
05/18/2023amend and recommit to children and families
05/18/2023print number 6289b
05/23/2023reported referred to codes
06/08/2023reported referred to rules
06/08/2023reported
06/08/2023rules report cal.717
06/08/2023ordered to third reading rules cal.717
01/03/2024ordered to third reading cal.180
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A06289 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A6289B
 
SPONSOR: Hevesi
  TITLE OF BILL: An act to amend the family court act, in relation to the confidentiality and expungement of records in juvenile delinquency cases in the family court   PURPOSE: This bill makes several changes to the Family Court Act to clarify and protect the record-related rights of children arrested as juvenile delinquents or those arrested as juvenile offenders and adolescent offenders whose cases are subsequently removed to family court. Protecting children from collateral consequences related to juvenile records is consistent with the rehabilitative purpose of the Family Court Act. The bill requires confidentiality for all records created as a result of juvenile arrests and family court cases. The bill further defines which specific records would be considered juvenile delinquency records and how such records should be maintained or expunged by the court and other government entities.   SUMMARY OF PROVISIONS: Section one amends the Family Court Act (FCA) by adding a new section, 301.5, to make clear that juvenile delinquency records shall be confi- dential and shall not be released to any "person, department, agency, or entity." The section defines "juvenile delinquency records" and enumer- ates specific categories of records, such as: juvenile legal tiles, law enforcement records, state criminal justice system records, and personal social records. The section includes a mechanism for requesting access to confidential records through notice and hearing. The section also creates a civil cause of action for those aggrieved by a violation of the outlined protections. Section two amends FCA § 354.1(1) and (2) to account for recent legisla- tive changes that raised the age of criminal prosecution ("Raise the Age" law) and raised the minimum age of juvenile delinquency jurisdic- tion ("Raise the Lower Age" law). The current statute governs the retention and destruction of fingerprints and photographs of young people arrested as delinquents or whose cases initiate as juvenile offenders but are subsequently removed to family court pursuant to arti- cle 735 or 722 of the criminal procedure law. The bill would extend those provisions to cases that start as adolescent offenders but are removed to family court. The bill also removes the age "eleven" from both subsections (1) and (2). Section two also adds subdivision (8) to FCA § 354.1. This section requires the destruction of all fingerprints, palmprints, photographs, and related information obtained pursuant to section 306.1 upon the expungement of a juvenile delinquency adjudication pursuant to section 375.1 or 375.2. Section two also adds subdivision (9) to FCA § 354.1. This amendment prohibits retention of any juvenile DNA or other genetic material in any database maintained by a government entity other than those used for parentage, juvenile offender, or adolescent offender proceedings. Section three amends FCA § 375.1 to require automatic expungement, not merely sealing, for cases terminated in favor of the accused young person, as well as for adjudications based upon the now-repealed mari- juana and loitering for the purposes of prostitution crimes under former sections 221.15, 221.20, 221.35, 221.40, 240.36, and 240.37 of the penal law. This section also applies to individuals who were previously adju- dicated delinquent for an act committed while under the age of twelve, other than the acts enumerated in section 301.2. An agreement to forgo the expungement may not be a condition of an adjournment in contem- plation of dismissal. Section Three instructs those entities maintaining records and those who are the subjects of juvenile records of the effects of expungement. Recognizing that local probation departments must check prior records of adjusted cases under Family Court Act § 308.1(4), local probation departments would be permitted to seal their records from public view and access them solely for that purpose. The proposal calls for automatic vacatur, dismissal, and expungement for those previously adjudicated delinquents for acts that are no longer considered crimes and automatic expungement for juvenile records of respondents in whose favor delinquency proceedings were terminated prior to the enactment of the bill. Section four amends FCA § 375.2 to replace sealing with expungement, clarify expungement by motion, and create automatic expungement for juvenile delinquency adjudications. This section expands eligibility for expungement to all delinquency adjudications, regardless of the offense. It also amends the jurisdictional timing for filing a motion to expunge from the age of eighteen to any time after the conclusion of the dispo- sition. An agreement to forgo expungement may not be a condition of a plea or admission to a reduced charge. This section adds explicit factors that the court must weigh when deciding a motion for expunge- ment, including, but not limited to, the best interest of the person, nature of offense, and adverse consequences resulting from retention of the record. Once a youth reaches the age of 21, all records relating to a juvenile delinquency adjudication must automatically be expunged. The section further requires all agencies involved in the adjudication of the case, from arrest to disposition, to affirm to the court that all paper and electronic copies of such records have been destroyed. Section five amends FCA § 381.2 to replace sealing with expungement in regard to the use of records in other courts. Section six amends FCA § 381.3 to replace "police" with "law enforce- ment" and defines law enforcement records. Subdivision 2 provides great- er protection of juvenile delinquency records maintained by law enforce- ment by requiring the destruction of records under specified circumstances consistent with the provisions of sections 375.1 and 375.2. The section clarifies the prohibition against law enforcement's use of its internal, confidential records without a court order pursuant to the new § 306.1. The section creates a civil cause of action for those aggrieved by violations of the outlined protections.   EXISTING LAW: FCA Article 3 governs juvenile delinquency proceedings in New York State. Article 3 provides for the automatic sealing of juvenile delin- quency records whenever the case results in a termination that is favor- able to the respondent, including cases that are dismissed or withdrawn. See § 375.1. The automatic sealing of "favorable" records is purely statutory and parallels similar criminal procedure law provisions. When the respondent has been adjudicated delinquent, the court may, in its discretion, order that the records be sealed after a motion has been made. Such motion may not be made until after the respondent's eigh- teenth birthday and so long as the adjudication was not for a designated felony. See § 375.2. Last, the court may exercise its inherent power to expunge a court record, though it arguably lacks the authority to order the expungement of non-court files, including of law enforcement records. See § 375.3. Discretionary sealing and expungement provisions codify Court of Appeals case law; ergo, the court would possess the power in the absence of a sealing statute. If a record is not sealed or expunged, the relevant documents are protected solely by the weak privacy provision found in FCA Section 166, to wit, they "shall not be open to indiscriminate public inspection." Section 166 applies indefinitely to cases which have yet to be dismissed or withdrawn, even though many dispositions are "favorable" to the respondent and will hence be ultimately sealed. The Section dates from 1922 and has not been significantly amended for close to a century. FCA Article 3 also governs the retention of juvenile fingerprints, photographs, and palmprints initially taken as a result of law enforce- ment action. See § 306.1. This provision currently applies to only juve- nile delinquencies and juvenile offender cases removed to family court. Such fingerprints are forwarded to and maintained by the Division of Criminal Justice Services (DCJS). If a case is disposed of in any manner other than an adjudication of juvenile delinquency for a felony, all fingerprints or information relating to the allegations obtained by DCJS shall be destroyed upon notification by the terminating entity (family court, department of probation, or presentment agency). See § 354.1. The family court shall notify DJCS of felony adjudications of juvenile delinquency, in which case the fingerprint profile will be maintained. See § 354.1(1). If the young person has no criminal convictions or pend- ing criminal actions, DCJS shall destroy all fingerprints upon their 21st birthday.   JUSTIFICATION: Records are created the instant a child comes into contact with law enforcement and the juvenile legal system. While records serve an impor- tant and functional role in aiding the court during the pendency of a case, this utility diminishes and is replaced with a prejudicial effect over time. Despite misconceptions that existing state confidentiality and sealing provisions provide adequate protections, young people face continuing stigma and are excluded from housing, educational, employment and other opportunities. See generally, J. Radice, "The Juvenile Record Myth," 106 Geo. L.J. 365 (2018). In New York, juvenile arrest, probation, prosecutorial, and court records follow youth into adulthood. The collateral consequences of those juvenile records significantly affect young people throughout their lives by impeding their ability to achieve gainful employment, serve in the military, enroll in higher education, obtain occupational licensing, or acquire citizenship. See, e.g., U.S. Dept. of Justice Office of Juvenile Justice and Delinquency Prevention, Expunging Juvenile Records: Misconceptions, Collateral Consequences, and Emerging Practices (Dec. 2020); Juvenile Law Center, Failed Policies, Forfeited Futures: Revisiting a Nationwide Scorecard on Juvenile Records (July 2020); M. Sobie, "A T ife Sentence for Children: NY's Antiquated Prejudicial Juvenile Justice Record Provisions," N.Y.L.J. (Dec. 16, 2021). It is well-settled that it would be "antithetical to the purpose of the Family Court Act to maintain records which would not benefit society and would result in bringing unwarranted discrimination to a child's future." Dorothy D. v. New York City Prob. Dept, 49 N.Y.2d 212, 215(1980). The New York Court of Appeals clearly recognizes the myriad of negative consequences that encumber youth for whom records are kept. "That the very existence of (Family Court delinquency) records, despite provisions for confidentiality, may constitute a substantial impediment to entry into institutions of higher learning, government or private employment, the armed services, or the professions, cannot be seriously questioned." Id. at 213. The Court has repeatedly expressed that "(the) overriding intent of the juvenile delinquency article is to empower the Family Court to intervene and positively impact the lives of troubled young people" and "to extinguish the causes of juvenile delinquency through rehabilitation" rather than to punish. Matter of Robert J. 2 N Y 3d 339, 346 (2004); Matter of Quinton A., 49 N.Y.2d 328, 335 (1980). See also Matter of Emily P., 63 Misc. 3d 755, 833-34 (N.Y. Fam. 2019). Notwithstanding the rehabilitative intention of the Family Court Act the current record-related provisions harm, rather than protect, young people long after the conclusion of their cases. In 2015, the American Bar Association issued the "Model Act Governing the Confidentiality and Expungement of Juvenile Delinquency Records." The "Model Act" calls for comprehensive protection of juvenile records by prioritizing confidentiality and the automatic expungement of all records generated by juvenile system involvement, expanding beyond just court files. Many states follow the Model Act by prioritizing expunge- ment and ensuring confidentiality for all juvenile records. See, e.g., West's Colorado Revised Statutes § 19-1306; Illinois Compiled Statutes § 405/5-915; Ohio Revised Code §§ 2151.355, 2151.356, 2151.358; Revised Code of Washington § 13.50.050; Delaware Code §§ 1014-1018; North Caro- lina General Statutes §§ 7B3200, 3201; Arizona Revised Statutes § 13-921; Arkansas Code §§ 927- 3o9(b)(1)(A), (b)(2); West's California Code, Div. 2, C. 2, Art. 22, § 826(a); Connecticut General Statutes §§ 46b133a,46b-146; West's Florida Statutes § 943.0582; Minnesota Statutes § 260B.235 9; Pennsylvania Consolidated Statutes § 9123; West's Code of Virginia § 16-1-306. This proposal adopts many of the provisions set forth in the "Model Act" and is consistent with state and national trends to protect criminal records through "ban the box" and "clean slate" reforms. Too often, young people affected by the juvenile delinquency system are excluded from such movements and may have fewer legal protections than adults and "Youthful Offenders" in criminal court. This outcome runs counter to the purpose of Family Court and modern developmental science. Youth have the capacity for change and research confirms a significant majority of arrested children are never again charged with criminal activity, before or after attaining majority. See S. Shah, "Future Interrupted: The Collateral Damage Caused by Proliferation of Juvenile Records," Juvenile Law Center (Feb. 2016). As such, legislatures should consider measures that "equalize the wide disparity between the Family Courts and the criminal courts." M. Sobie, "A Life Sentence for Children: NY's Anti- quated Prejudicial Juvenile Justice Record Provisions," supra. This proposal aims to extend to New York's young people measures to alleviate the collateral consequences and lifelong stigma resulting from system involvement.   CONFIDENTIALITY: Expungement, sealing, and confidentiality are three legally distinct record protections. Expungement requires permanent destruction of records, sealing requires courts to make records available to specific agencies but unavailable to the public, and confidentiality prevents dissemination, access, or use of records. This proposal incorporates a new confidentiality section, proposed Fami- ly Court Act § 301.6, to address the significant weaknesses in current law. See Schwawl v. Grant (2 Dept. 2008) 47 A.D.3d 698. In the absence of sealing, FCA § 166 is the only provision governing access to juvenile delinquency records. However, it does not ensure the confidentiality of those records. Indeed, as explained in the Practice Commentary of McKinney's Family Court Act: "A common assumption is that Family Court records are confidential. For better or for worse, that assumption is erroneous. The vague incomplete confidentiality provision of Section 166, which dates from the Family Court Act's predecessor code, the 1922 Children's Court Act, stops well short of full confidentiality. Using the phrase 'shall not be open to indiscriminate public inspection,' the section suggests that public discriminate or discriminating inspection is permitted. Perhaps more surprisingly, the section addresses "public" inspection, but is silent concerning non-public access, although records are often sought by employers, the government, or the respondent herself." Prof. Merril Sobie, Practice Commentary, McKinney's Family Ct. Act § 166. Section 166 leaves the door open to the dissemination of juvenile records by prosecution and police personnel, regardless of the case's ultimate outcome. Ironically, the records of Youthful Offenders who are prosecuted in the criminal courts are afforded a greater degree of confidentiality. See Criminal Procedure Law Section 720.35. Presently, young adults with juvenile records are unable to move about the world freely, without fear of their records being shared. Confiden- tiality should be a baseline protection for all juvenile delinquency records. Section One of this proposal accomplishes that. Unlike the current iteration of Family Court privacy provisions, "confidentiality" is explicit in § 301.6. The proposal mirrors the ABA "Model Act" Section IV(a), outlining the specific records that fall under the confidentiali- ty umbrella, and requires that records "shall not be open to inspection nor released to any person, department, agency, or entity." With the understanding that records are useful for certain court or government purposes, this proposal includes a mechanism for requesting access to confidential information through notice and hearing. This creates transparency regarding who is requesting access to what records and curtails surreptitious sharing of information by agencies to both internal and external parties. Finally, this proposal creates a civil cause of action for the violation of confidentiality requirements. Sanc- tions are necessary for enforcement, accountability and to redress potential harm. As of 2020, 34 states impose either civil or criminal sanctions for individual or agency failure to comply with confidentiali- ty protections. Juvenile Law Center, Failed Policies, Forfeited Futures: Revisiting a Nationwide Scorecard on Juvenile Records, supra.   DNA OR OTHER GENETIC MATERIAL: Law enforcement officers often obtain DNA samples by consent or surrep- titiously, by offering arrested juveniles bottles of water, bubble gum, or cigarettes for inclusion in a local DNA index indefinitely. This practice has drawn significant concern from local and state legislators, community groups and citizens throughout the state. This proposal addresses the issue by prohibiting the retention of any juvenile DNA or other genetic material in any database maintained by a government enti- ty, other than those used for parentage, juvenile offender or adolescent offender proceedings.   EXPUNGEMENT: Expungement is the only adequate and complete remedy to protect against the lasting consequences and future stigma of a juvenile record. In the twenty-first century, juvenile records are electronically stored, cata- logued, and widely available. While sealed records cannot ordinarily be obtained or reviewed, the relevant records are nonetheless maintained. System-involved agencies, such as prosecutorial offices and law enforcement entities, learn of sealed arrests through instantaneous searches within their databases. While these cases are labelled as "sealed" and individual public serv- ants may not gain specific information about the facts of a case, the knowledge of a preexisting history is enough for subconscious bias to affect the myriad discretionary decisions made throughout the life of a case. These records exist even for proceedings or actions that were dismissed, declined, voided, and found to have no merit. As a result, individuals with dismissed cases suffer equivalent consequences to those with adjudications. For example, a young adult with a case dismissed on the merits may be denied a job in the public sector. Although the case would be sealed, pursuant to the current FCA § 375.1, the case would likely appear on a public agency's internal database. If the arrest and delinquency action were expunged, no history of such record would exist, eliminating the potential consequence and bias. Access to juvenile records also contributes to cyclical system involve- ment. Law enforcement agencies maintain identification information in several internal databases, made accessible to officers when patrolling, investigating, and making subsequent arrests. These databases include juvenile arrests, regardless of how an arrest was resolved. Readily available juvenile arrest information contributes to the long-term policing of communities of color, who already face over-surveillance and escalated police presence in schools and neighborhoods. Expungement is also necessary to reduce social stigma and ensure records are not available to future employers, schools, associates, law enforce- ment, etc. This proposal clarifies the legal effect of expungement, enabling the person who is subject of the record to treat the arrest or case as if it never occurred, and ensuring that they are not penalized for failing to acknowledge such record. Relieving affected individuals from any obli- gation to identify a past, expunged case, truly removes the burden of collateral consequences attached to such a case. Today, many young people over-disclose their sealed or expunged juvenile delinquency arrests or adjudications out of fear that an employer, law enforcement agency, or immigration official might have knowledge of the record. The proposed amendment allows counsel to explicitly advise their young clients that if or when their record is expunged, they will never have to disclose it. Procedures for young people to petition to seal or expunge their juve- nile records are historically cumbersome. Attorneys can assist young people and adults with filing sealing and expungement motions; however, the affected person must first know that their record is eligible for relief. Current sealing and expungement statutes are confusing and complicated. Often attorneys and their young clients lose connection over years of separation and changes in circumstances that can occur from adolescence to adulthood. As a result, Section 375.2 sealing motions are rare and Section 375.3 expungement motions are virtually non-existent. The burden of sealing and expungement should not fall on a young person. Recent national legislative trends and the "Model Act" make it easier for young people by providing for automatic destruction without action on the part of the youth. See Anne Teigen, "Automatically Sealing or Expunging Juvenile Records," 24 LegisBrief 27 (Nat'l Conf. of St. Legislatures, Washington D.C.) (July 2016). Consequently, expungement must be the minimum level of protection for those whose delinquency action terminated in their favor. This proposal requires automatic expungement, not merely sealing, of records for cases terminated favorably to the accused, as well as adjudications of indi- viduals based on the now-repealed marijuana and loitering for purposes of prostitution charges. In addition, the proposal adds voided arrests to the list of cases that are considered favorably terminated, in line with CPL 160.50(3)(j). Notwithstanding the clear benefits of automatic expungement, the proposal maintains the mechanism of expungement by motion. However, the proposal adds statutory factors for consideration by the court, modelled after those put forth by the "Model Act." Rather than relying on overly punitive factors or allowing for total discretion, this proposal provides a more holistic approach-balancing the best interest of the person, their rehabilitation, the nature of the offense, and adverse consequences of retention of a record. Further, it was important for this proposal to include enumerated factors to better unify courts' decision-making. While there has been movement by some judges toward consideration of more holistic factors, see Matter of Emily P., 63 Misc.3d 755 (Fam. a., N.Y. Co., 2019), some jurisdictions still maintain antiquated precedent for expungement, such as a need for "complete inno- cence." Curtailing this wide ranging and varied analysis will not only make it more efficient for practitioners but will better align the relief with the rehabilitative intent of the Family Court Act. The expungement by motion provision of this proposal will provide an avenue of relief for all young people, regardless of age or offense, including designated felonies. This approach is consistent with FCA § 375.3, as well as data and research which demonstrate the enormous potential of young people for rehabilitation. Accordingly, no youth should be automatically foreclosed from the complete relief of expunge- ment. Additionally, the proposal amends the time when a respondent may request expungement. This relief should be available to young people, in appropriate circumstances, before automatic expungement is triggered on their 21st birthday. Finally, like all of the expungement provisions outlined in this proposal, expungement by motion requires the destruction of all juvenile delinquency records, not just the family court's own files.   PROTECTION FOR THE ENTIRE JUVENILE FILE: Currently, even if a young person obtains court-ordered expungement through FCA § 375.3, an expungement order does not provide complete relief. The practical application of an expungement results in the destruction of court records only, leaving in place all other agency records created through the life of a case (from arrest to disposition). This proposal closes that loophole. To ensure that each child has an opportunity for a productive future, and for rehabilitation to be effec- tive, juvenile system involvement records should be eradicated so chil- dren can start from a clean slate upon reaching adulthood. See "Model Act"; Juvenile Law Center, Failed Policies, Forfeited Futures: Revisit- ing a Nationwide Scorecard on Juvenile Records, supra. Some system-involved youth express interest in serving their communities as law enforcement officers or by enlisting in the military someday. However, law enforcement agencies continue to utilize their internal records of juvenile arrests to prejudice individuals both in the inves- tigatory context and when individuals apply for employment with a law enforcement agency. See R.C. v. City of New York, 2019 N.Y. Slip Op. 32624 (N.Y. Sup. Ct. 2019) (Ongoing case in New York City whereby the plaintiffs seek redress from the NYPD policy and practice allowing the use of information from records of arrest to target predominately Black and Latinx people for investigation, arrest, and harsher penalties.) This proposal calls for two remedies to address this issue. First, it requires confidentiality of all juvenile records, protecting against internal access to records without due process. Second, it provides for the destruction of law enforcement records at various points in a case. This new provision will trigger destruction of all law enforcement records relating to an arrest when other records are required to be destroyed, such as when a matter is terminated in favor of the youth.   LEGISLATIVE HISTORY: New bill in Assembly; 2021-22: S.9228 - BRISPORT   FISCAL IMPLICATIONS: To be determined.   EFFECTIVE DATE: This act shall take effect on the ninetieth day after it shall have become a law.
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A06289 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         6289--B
 
                               2023-2024 Regular Sessions
 
                   IN ASSEMBLY
 
                                      April 3, 2023
                                       ___________
 
        Introduced  by M. of A. HEVESI, GONZALEZ-ROJAS -- read once and referred
          to the Committee on Children and  Families  --  committee  discharged,
          bill  amended,  ordered  reprinted  as amended and recommitted to said
          committee -- again  reported  from  said  committee  with  amendments,
          ordered reprinted as amended and recommitted to said committee

        AN ACT to amend the family court act, in relation to the confidentiality
          and expungement of records in juvenile delinquency cases in the family
          court
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. The family court act is amended by  adding  a  new  section
     2  301.5 to read as follows:
     3    § 301.5. Confidentiality of juvenile delinquency records. 1. "Juvenile
     4  delinquency record" refers to the records, reports and information main-
     5  tained  in any form, including electronic, by the family court, juvenile
     6  probation, the presentment agency, state  criminal  justice  information
     7  systems,  law enforcement agencies or any other public servant document-
     8  ing the juvenile's contact with the juvenile  justice  system  from  the
     9  time of investigation and arrest.
    10    2.  The following records, reports, and information acquired or gener-
    11  ated in family court, juvenile probation or by arrests concerning  juve-
    12  niles  shall  be  confidential  and  shall not be open to inspection nor
    13  released to any person, department, agency, or entity:
    14    (a) Juvenile legal files, including but not limited to:
    15    (i) Juvenile delinquency petitions;
    16    (ii) Adolescent offender petitions if the  action  is  transferred  or
    17  removed  to family court pursuant to article seven hundred twenty-two of
    18  the criminal procedure law;
    19    (iii) Juvenile offender petitions if the action is removed  to  family
    20  court  pursuant  to  article  seven  hundred twenty-five of the criminal
    21  procedure law;
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD05815-04-3

        A. 6289--B                          2
 
     1    (iv) Predisposition reports, including  probation  investigations  and
     2  diagnostic assessments;
     3    (v) Risk assessment instruments;
     4    (vi) Notices;
     5    (vii) Motions;
     6    (viii) Legal memoranda; and
     7    (ix) Orders.
     8    (b) Law enforcement records, including but not limited to:
     9    (i) Fingerprints, photographs, palmprints;
    10    (ii) DNA samples;
    11    (iii) Arrest records;
    12    (iv)  Demographic information that identifies a juvenile or the family
    13  of a juvenile; and
    14    (v) State criminal justice information system records.
    15    (c) Personal social records, including but not limited to:
    16    (i) Records of juvenile probation officers;
    17    (ii) Medical records;
    18    (iii) Psychiatric or psychological records;
    19    (iv) Reports of preliminary inquiries and predisposition reports;
    20    (v) Supervision records;
    21    (vi) Birth certificates;
    22    (vii) Individualized service plans;
    23    (viii) Detention records; and
    24    (ix) Demographic information that identifies a juvenile or the  family
    25  of a juvenile.
    26    3.  Upon  a written petition and a finding of compelling interest, and
    27  in accordance with the conditions below, the juvenile  court  may  order
    28  release  of  the  juvenile  name and designated portions of the records,
    29  reports, and information described in  paragraphs  (a)  through  (c)  of
    30  subdivision  two  of this section to another person, department, entity,
    31  or agency.
    32    (a) The requesting party shall provide notice to the juvenile and  his
    33  or her attorney of the petition and an opportunity to object.
    34    (b) The court shall hold a hearing on the petition if requested by the
    35  petitioner or juvenile.
    36    (c)  The  petition filed with the court and served on the juvenile and
    37  his or her attorney shall state the following:
    38    (i) The reason the person, department, entity, or agency is requesting
    39  the information;
    40    (ii) The use to be made of the  information,  including  any  intended
    41  re-disclosure; and
    42    (iii)  The  names  of  those persons within the department, entity, or
    43  agency who will have access to the information.
    44    (d) In ruling on the petition, the court shall  consider  the  privacy
    45  interests  of  the  juvenile and potential risk of harm to the juvenile,
    46  whether a compelling reason exists for release of the  information,  and
    47  whether  the  release  is  necessary  for the protection of an important
    48  interest.
    49    (e) The court may impose restrictions on the use and re-disclosure  of
    50  the released information.
    51    4.  An officer of the court with whom the proceedings pursuant to this
    52  article are filed, or his or her  clerk,  either  before  or  after  the
    53  conclusion  of  such  proceedings, shall not permit a copy of any of the
    54  documents relating to such proceedings to be taken or seen by any person
    55  other than the respondent, the  attorney  for  the  child,  an  attorney

        A. 6289--B                          3
 
     1  employed  by  the  presentment  agency,  or  an official employed by the
     2  probation service, except by order of the court.
     3    5.  Notwithstanding  the  provisions  of  subdivision  three  of  this
     4  section, an officer of the court, or his or her clerk, shall not  permit
     5  access  of  any  person  to a record which has been expunged pursuant to
     6  section 375.1 or section 375.2 of this article.
     7    6. A violation of this section shall create  a  cause  of  action  for
     8  civil damages of up to one thousand dollars.
     9    §  2. The section heading and subdivisions 1 and 2 of section 354.1 of
    10  the family court act, the section heading as added by chapter 920 of the
    11  laws of 1982 and subdivisions 1 and 2 as amended by chapter 810  of  the
    12  laws  of 2021, are amended and two new subdivisions 8 and 9 are added to
    13  read as follows:
    14    Retention and destruction of fingerprints; DNA and other genetic mate-
    15  rial of persons alleged to be juvenile delinquents.    1.  If  a  person
    16  whose  fingerprints,  palmprints  or  photographs were taken pursuant to
    17  section 306.1 of this article or who was initially  fingerprinted  as  a
    18  juvenile  or  adolescent offender and the action is subsequently removed
    19  to a family court pursuant to article seven hundred twenty-five or arti-
    20  cle seven hundred twenty-two of the criminal procedure  law  is  adjudi-
    21  cated  to  be a juvenile delinquent for a felony, the family court shall
    22  forward or cause to be forwarded to the  division  of  criminal  justice
    23  services  notification of such adjudication and such related information
    24  as may be required by such division, provided, however, in the case of a
    25  person twelve years of age such notification shall be provided  only  if
    26  the  act upon which the adjudication is based would constitute a class A
    27  or B felony.
    28    2. If a person whose  fingerprints,  palmprints  or  photographs  were
    29  taken  pursuant  to  section  306.1 of this article or who was initially
    30  fingerprinted as a juvenile or adolescent offender  and  the  action  is
    31  subsequently  removed  to family court pursuant to article seven hundred
    32  twenty-five or article seven hundred twenty-two of the  criminal  proce-
    33  dure  law  has  had all petitions disposed of by the family court in any
    34  manner other than an adjudication of juvenile delinquency for a  felony,
    35  but  in  the case of acts committed when such person was twelve years of
    36  age [which would constitute] other  than  an  adjudication  of  juvenile
    37  delinquency  for  a  class  A or B felony [only], all such fingerprints,
    38  palmprints, photographs, and copies thereof, and all information  relat-
    39  ing  to  such  allegations  obtained by the division of criminal justice
    40  services pursuant to section 306.1 of this article  shall  be  destroyed
    41  forthwith.  The  clerk of the court shall notify the commissioner of the
    42  division of criminal justice  services  and  the  heads  of  all  police
    43  departments  and law enforcement agencies having copies of such records,
    44  who shall destroy such records without unnecessary delay.
    45    8. When a person whose fingerprints, palmprints  or  photographs  were
    46  taken  pursuant to section 306.1 of this article and who is subsequently
    47  adjudicated a juvenile delinquent for a felony, but in the case of  acts
    48  committed when such person was twelve years of age other than an adjudi-
    49  cation  of  juvenile delinquency for a class A or B felony, and the case
    50  is expunged pursuant to section 375.1 or section 375.2 of this  article,
    51  all  fingerprints,  palmprints, photographs, and related information and
    52  copies thereof obtained pursuant to section 306.1 of this article in the
    53  possession of the division of  criminal  justice  services,  any  police
    54  department,  law  enforcement  agency  or  any  other  agency  shall  be
    55  destroyed forthwith. The division of  criminal  justice  services  shall
    56  notify the agency or agencies which forwarded fingerprints to such divi-

        A. 6289--B                          4
 
     1  sion  pursuant  to  section 306.1 of this article of their obligation to
     2  destroy those records in their possession.
     3    9.   If any DNA or other genetic material was obtained from a juvenile
     4  by any law enforcement officer or other public  servant  acting  in  the
     5  course  of  his or her official duties or by a state or local government
     6  entity, other than DNA or other genetic material obtained in  connection
     7  with a parentage or related proceeding or a juvenile offender or adoles-
     8  cent  offender proceeding not removed to the family court, such material
     9  and any analyses or reports regarding such  material,  as  well  as  any
    10  record  included  in  any  DNA  identification  index  maintained by any
    11  government entity, shall be expunged forthwith. Any DNA or other genetic
    12  material obtained in connection  with  a  parentage  proceeding  related
    13  thereto  or  any juvenile offender or adolescent offender proceeding may
    14  be used only in connection with such proceeding and may not be disclosed
    15  to or utilized by any law enforcement agency or admitted  into  evidence
    16  in any proceeding under this article.
    17    §  3.   Section 375.1 of the family court act, as added by chapter 920
    18  of the laws of 1982, subdivision 1 as amended by chapter 41 of the  laws
    19  of  2010, paragraphs (d), (f) and (h) of subdivision 2 and subdivision 3
    20  as amended and paragraph (i) of subdivision 2 as added by chapter 398 of
    21  the laws of 1983, is amended to read as follows:
    22    § 375.1. Order upon termination of a delinquency action  in  favor  of
    23  the respondent.  1. Upon termination of a delinquency proceeding against
    24  a  respondent in favor of such respondent, unless the presentment agency
    25  upon written motion with  not  less  than  eight  days  notice  to  such
    26  respondent demonstrates to the satisfaction of the court that the inter-
    27  ests  of  justice  require otherwise or the court on its own motion with
    28  not less than eight days notice to such respondent determines  that  the
    29  interest  of  justice  require  otherwise and states the reason for such
    30  determination on the record, the clerk of the  court  shall  immediately
    31  notify  the  counsel  for  the  child,  the  director of the appropriate
    32  presentment agency, and the heads of the appropriate  probation  depart-
    33  ment  and  police  department  or other law enforcement agency, that the
    34  proceeding has terminated in favor of the  respondent  and,  unless  the
    35  court  has  directed  otherwise,  that  the  records  of  such action or
    36  proceeding, other than those destroyed pursuant to section 354.1 of this
    37  act, shall be [sealed] expunged.  Upon receipt of such notification  all
    38  official  records  and  papers,  including  judgments  and orders of the
    39  court, but not including public court decisions or opinions  or  records
    40  and  briefs  on  appeal, relating to the arrest, the prosecution and the
    41  probation service proceedings, including all duplicates or copies there-
    42  of, on file  with  the  court,  police  agency,  probation  service  and
    43  presentment agency shall be [sealed] expunged, and not made available to
    44  any  person  or  public  or  private agency; provided, however, that the
    45  probation service may retain a copy of the record under seal  solely  in
    46  order  to  comply with subdivision four of section 308.1 of this article
    47  until the respondent's eighteenth birthday or the  conclusion  of  their
    48  probation  supervision,  at  which  time  all records shall be expunged.
    49  Such records shall remain sealed during the pendency of any motion  made
    50  pursuant to this subdivision.
    51    2.  The effect of having a record expunged, whether pursuant to subdi-
    52  vision one of this section or pursuant to section 375.2  of  this  part,
    53  shall  be that all juvenile records shall be destroyed and thereafter no
    54  person or agency shall be allowed to release any information  concerning
    55  such  record,  except  as  provided by this section. The court, juvenile
    56  probation office, law enforcement offices, presentment  agency  and  any

        A. 6289--B                          5

     1  other  relevant agency shall reply to an inquiry that no juvenile record
     2  exists with respect to the person whose record was expunged.
     3    3. With respect to the matter in which the record was expunged and any
     4  preceding action resulting from the same alleged conduct, the person who
     5  is  the  subject of the record and the person's parent shall not be held
     6  thereafter under any provision of law to be guilty of perjury or  other-
     7  wise  giving  a  false  statement  by  reason of the person's failure to
     8  recite or acknowledge such record.
     9    4. For the purposes of subdivision one of this section, a  delinquency
    10  proceeding  shall  be  considered  terminated  in  favor of a respondent
    11  where:
    12    (a) the petition is withdrawn; or
    13    (b) the petition is dismissed under section 315.1  or  315.2  of  this
    14  article  and  the presentment agency has not appealed from such order or
    15  the determination of an appeal or  appeals  from  such  order  has  been
    16  against the presentment agency; or
    17    (c)  the petition has been deemed to have been dismissed under section
    18  315.3 and the presentment agency has not appealed from such order or the
    19  determination of an appeal or appeals from such order has  been  against
    20  the  presentment agency; provided, however, that an agreement to prevent
    21  expungement under this section may not be required as a condition of  an
    22  adjournment  in  contemplation  of dismissal under section 315.3 of this
    23  article; or
    24    (d) the petition is dismissed without prejudice under subdivision four
    25  of section 325.3 of this article and  the  presentment  agency  has  not
    26  appealed  from  such  order or the determination of an appeal or appeals
    27  from such order has been against the presentment agency; or
    28    (e) the entire petition has been dismissed under  subdivision  two  of
    29  section 345.1 of this article; or
    30    (f)  the  petition is dismissed under subdivision two of section 352.1
    31  of this part; or
    32    (g) prior to the filing of a petition, the  probation  department  has
    33  adjusted the case or terminated the case without adjustment; or
    34    (h)  prior  to the filing of a petition the presentment agency chooses
    35  not to proceed to petition; or
    36    (i) the petition is dismissed pursuant to a motion made in  accordance
    37  with subdivision eight, nine or ten of section 332.1 of this article; or
    38    (j)  following  an  arrest,  the arresting police agency, prior to the
    39  filing of an accusatory instrument  in  court,  elects  not  to  proceed
    40  further; or
    41    (k)  the respondent was adjudicated for an act that if committed by an
    42  adult would constitute a crime under  former  sections  221.15,  221.20,
    43  221.35, 221.40 or 240.37 or section 240.36 of the penal law; or
    44    (l)  the respondent was adjudicated for an act that was committed when
    45  the respondent was under the age of twelve, other than the acts  enumer-
    46  ated  in  subparagraph  (iii)  of  paragraph  (a)  of subdivision one of
    47  section 301.2 of this article.
    48    5. When a person was previously adjudicated delinquent as described in
    49  paragraph (k) or (l) of subdivision four  of  this  section,  the  chief
    50  administrative  judge of the state of New York shall, in accordance with
    51  this section, automatically vacate, dismiss, and  expunge  such  adjudi-
    52  cation,  and the office of court administration shall immediately notify
    53  the state division of criminal justice  services,  directing  that  such
    54  agency  notify all relevant police and law enforcement agencies of their
    55  duty to destroy all records related to such case.

        A. 6289--B                          6
 
     1    [3.] 6. Records sealed pursuant  to  subdivision  one  shall  be  made
     2  available  to the respondent or his designated agent and the records and
     3  papers of a probation  service  shall  be  available  to  any  probation
     4  service  for  the  purpose of complying with subdivision four of section
     5  308.1 of this article.
     6    [4.]  7.  If  prior to the filing of a petition the presentment agency
     7  elects not to commence a delinquency action it  shall  serve  a  certif-
     8  ication  of  such disposition upon the appropriate probation service and
     9  the appropriate police department or law enforcement agency, which, upon
    10  receipt [thereto] thereof, shall comply with the provision  of  subdivi-
    11  sion  one of this section in the same manner as is required with respect
    12  to an order of the court.
    13    [5.] 8. If the probation service adjusts a delinquency case  it  shall
    14  serve  a  certification  of such disposition upon the appropriate police
    15  department or law enforcement agency which, upon receipt thereof,  shall
    16  comply  with  the  provisions  of subdivision one of this section in the
    17  same manner as is required thereunder with respect  to  an  order  of  a
    18  court.
    19    [6.]  9.  A  respondent  in  whose  favor a delinquency proceeding was
    20  terminated prior to the effective date of this section may  upon  motion
    21  apply  to  the  court,  upon  not  less  than  twenty days notice to the
    22  presentment agency, for an order granting him the relief  set  forth  in
    23  subdivision  one, and such order shall be granted unless the presentment
    24  agency demonstrates to the satisfaction of the court that the  interests
    25  of  justice require otherwise. A respondent in whose favor a delinquency
    26  action or proceeding was terminated as defined by subdivisions four  and
    27  five,  prior  to  the  effective  date of this section, may apply to the
    28  appropriate presentment agency or probation service for a  certification
    29  as  described  in  such  subdivisions  granting him the relief set forth
    30  therein and such certification shall  be  granted  by  such  presentment
    31  agency or probation service.
    32    10.  The chief administrative judge of the state of New York shall, in
    33  accordance with this section, automatically expunge the juvenile  record
    34  of  a  respondent in whose favor a delinquency proceeding was terminated
    35  prior to the effective date of this subdivision, and the office of court
    36  administration shall immediately notify the state division  of  criminal
    37  justice  services, directing that such agency notify all relevant police
    38  and law enforcement agencies  of  their  duty  to  destroy  all  records
    39  related to such case.
    40    § 4. Section 375.2 of the family court act, as added by chapter 920 of
    41  the  laws of 1982, subdivision 6 as amended by section 77 of part WWW of
    42  chapter 59 of the laws of 2017, and subdivision 7 as  added  by  chapter
    43  813 of the laws of 2021, is amended to read as follows:
    44    §  375.2.  Motion  to [seal] expunge and automatic expungement after a
    45  finding. 1. If an action has resulted in a finding of delinquency pursu-
    46  ant to subdivision one of section 352.1 of this article, [other  than  a
    47  finding  that  the  respondent  committed  a designated felony act,] the
    48  court may, in the interest of justice and upon motion of the respondent,
    49  order the [sealing]  expungement  of  appropriate  records  pursuant  to
    50  subdivision one of section 375.1 of this part.
    51    2.  Such motion must be in writing and may be filed at any time subse-
    52  quent to the [entering of such finding] conclusion of the period of  any
    53  disposition, including, but not limited to, the expiration of the period
    54  of  placement,  conditional  discharge,  order  of  protection, order of
    55  restitution, order of probation or any extension thereof. Notice of such
    56  motion shall be served upon the presentment agency not less  than  eight

        A. 6289--B                          7
 
     1  days  prior to the return date of the motion. Answering affidavits shall
     2  be served at least two days before such time.  The court shall  rule  on
     3  the expungement after considering the following:
     4    (a) the best interests of the person;
     5    (b)  the  age  of the person during his or her contact with the family
     6  court or law enforcement agency;
     7    (c) the nature of the offense;
     8    (d) the disposition of the case;
     9    (e) the manner in which the person participated in any  court  ordered
    10  rehabilitative programming or supervised services;
    11    (f) the time during which the person has been without contact with the
    12  juvenile court;
    13    (g) whether the person has any subsequent criminal convictions; and
    14    (h)  the  adverse  consequences  the person will suffer as a result of
    15  retention of his or her record.
    16    3. The court shall state on the record its  reasons  for  granting  or
    17  denying the motion.
    18    4.  [If  such  motion is denied, it may not be renewed for a period of
    19  one year, unless the order of denial permits renewal at an earlier time.
    20    5.] The court shall not order the [sealing] expungement of any  record
    21  except as prescribed by this section or section 375.1 of this part.
    22    [6.  Such  a  motion  cannot be filed until the respondent's sixteenth
    23  birthday, or, commencing  October  first,  two  thousand  eighteen,  the
    24  respondent's  seventeenth  birthday,  or  commencing  October first, two
    25  thousand nineteen, the respondent's eighteenth birthday.
    26    7.] 5. Where an order of fact-finding  has  been  issued  pursuant  to
    27  subdivision  one of section 345.1 of this article that includes solely a
    28  violation as defined in subdivision three of section 10.00 of the  penal
    29  law committed by a juvenile sixteen years of age or, commencing on Octo-
    30  ber  first,  two  thousand nineteen, seventeen years of age, the records
    31  shall be [sealed] expunged automatically at the expiration, as  applica-
    32  ble,  of  a  successful  period of an adjustment, adjournment in contem-
    33  plation of dismissal or conditional discharge.
    34    6. If an action has resulted in a finding of delinquency  pursuant  to
    35  subdivision  one  of  section 352.1 of this article, all records of such
    36  action  or  proceeding  not  already  expunged  shall  be  automatically
    37  expunged  by  the  court upon the attainment of the respondent's twenty-
    38  first birthday.
    39    7. If expungement is obtained automatically or by motion, the clerk of
    40  the court shall notify the commissioner  of  the  division  of  criminal
    41  justice services, the attorney for the child, the director of the appro-
    42  priate presentment agency, the head of the appropriate probation depart-
    43  ment,  the  heads of all police departments and law enforcement agencies
    44  and all other agencies named in the court files, including  other  state
    45  agencies   which  may  have  records  of  the  juvenile's  adjudication,
    46  detention, and treatment facilities,  who  shall  destroy  such  records
    47  without  unnecessary  delay. Each agency shall affirm in an affidavit of
    48  expungement to the court that it  destroyed  all  paper  and  electronic
    49  copies  of  the  expunged  records.    The  division of criminal justice
    50  services shall notify the agency or agencies which forwarded  any  juve-
    51  nile  records  of  their  obligation  to  destroy those records in their
    52  possession.
    53    8. An agreement by the respondent to prevent  expungement  under  this
    54  section  may not be a condition for the respondent to enter an admission
    55  to a reduced charge pursuant to section 321.3 of this article.

        A. 6289--B                          8
 
     1    § 5. Section 381.2 of the family court act, as added by chapter 920 of
     2  the laws of 1982, subdivision 2 as amended by chapter 926 of the laws of
     3  1982, is amended to read as follows:
     4    §  381.2.  Use  of records in other courts. 1. Neither the fact that a
     5  person was before the family court under this article for a hearing  nor
     6  any  confession,  admission or statement made by him or her to the court
     7  or to any officer thereof in any stage of the proceeding  is  admissible
     8  as  evidence  against  him  or her or his or her interests, in any other
     9  court.
    10    2. Notwithstanding the provisions of subdivision one of this  section,
    11  another  court,  in imposing sentence upon an adult after conviction may
    12  receive and consider the records and information on file with the family
    13  court, unless such records and information have been  [sealed]  expunged
    14  pursuant to section 375.1 or section 375.2 of this article.
    15    § 6. Section 381.3 of the family court act, as added by chapter 920 of
    16  the  laws  of 1982, paragraph (b) of subdivision 2 as amended by chapter
    17  926 of the laws of 1982, is amended to read as follows:
    18    § 381.3. Use of [police] law enforcement records. 1. All [police]  law
    19  enforcement records relating to the arrest, detention, apprehension, and
    20  disposition  of  any  person  under  this article shall be kept in files
    21  separate and apart from the arrests of adults and shall be withheld from
    22  public inspection.
    23    2. All law enforcement records  relating  to  the  arrest,  detention,
    24  apprehension, and disposition of any juveniles shall be destroyed forth-
    25  with upon the occurrence of one of the following:
    26    (a)  After  the  arrest  of such person, the arresting law enforcement
    27  agency, prior to the filing of an accusatory instrument in court, elects
    28  not to proceed further;
    29    (b) Prior to the filing of a petition, the presentment  agency  elects
    30  not to commence a delinquency action;
    31    (c)  Prior  to  the filing of a petition, the probation department has
    32  adjusted the case or terminated the case without adjustment;
    33    (d) Termination of the delinquency action in  favor  of  a  respondent
    34  pursuant to section 375.1 of this article; or
    35    (e)  Following  a  finding  of  delinquency, sealing or expungement is
    36  ordered pursuant to section 375.1 or 375.2 of this article.
    37    3. Law enforcement  or  other  public  officials  may  not  access  or
    38  disclose  confidential  juvenile records without a court order following
    39  notice and a hearing pursuant to subdivision four of  section  306.1  of
    40  this article.
    41    4.  Notwithstanding  the provisions of subdivision [one] three of this
    42  section, the family court in the county in which the petition was  adju-
    43  dicated  may,  upon  motion and for good cause shown, order such records
    44  open:
    45    (a) to the respondent or his or her parent or person  responsible  for
    46  his or her care; or
    47    (b) if the respondent is subsequently convicted of a crime, to a judge
    48  of  the  court  in  which  he was convicted, unless such record has been
    49  [sealed] expunged pursuant to section 375.1 or  section  375.2  of  this
    50  article.
    51    [3.]  5.  An order issued under subdivision [two] four of this section
    52  must be in writing.
    53    6. For the purposes of  this  section,  "records"  shall  include  law
    54  enforcement  files,  reports,  exhibits or other material which contains
    55  information relating to contact with any law enforcement agency and also
    56  includes electronic information recorded and  stored  stemming  from  an

        A. 6289--B                          9
 
     1  arrest or subsequent interrogations and interviews, and shall also apply
     2  to  any information that is kept manually, through the use of electronic
     3  data processing equipment, through electronic recording or by any  other
     4  means by a law enforcement agency of the state of New York.
     5    7.  Violation of this section shall create a cause of action for civil
     6  damages up to one thousand dollars.
     7    § 7. This act shall take effect on the ninetieth day  after  it  shall
     8  have become a law.
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