Provides for the application for sealing a record of conviction; establishes waiting periods for various convictions where such application may be made; authorizes certain agencies to maintain records; may be unsealed at the time of an arrest; prohibits the publication of sealed records; prohibits the waiver of this section at plea.
STATE OF NEW YORK
________________________________________________________________________
6664
2011-2012 Regular Sessions
IN ASSEMBLY
March 24, 2011
___________
Introduced by M. of A. O'DONNELL -- read once and referred to the
Committee on Codes
AN ACT to amend the criminal procedure law and the executive law, in
relation to applications for sealing a record of conviction
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 Sealing record of conviction; application for.
4 1. A person is eligible to apply to seal a record of conviction,
5 subject to the provisions contained in this section, by application on a
6 form specifically designated, sworn to under penalty of perjury and
7 accompanied by a fee of ninety-five dollars.
8 2. An applicant must be duly terminated and discharged from every
9 aspect of the sentence, including incarceration, probation, parole,
10 conditional release, post-release supervision, conditional discharge,
11 sex offender registration and/or any order of protection on this or any
12 other matter against the applicant must have expired. The following
13 waiting periods apply to applications under this section, however, for
14 good cause shown, the court may shorten a waiting period. Attendance at
15 a diversion program which delayed the imposition of the sentence may
16 constitute good cause, in the court's discretion.
17 (a) For a person who has been convicted of one non-criminal offense,
18 the waiting period shall be six months from the date of conviction of
19 such offense.
20 (b) For a person who has been convicted of more than one non-criminal
21 offense arising from separate incidences, the waiting period shall be
22 one year from the date of conviction of the last such offense.
23 (c) For a person who has been convicted of a misdemeanor, the waiting
24 period shall be one year from the date of conviction of such misdemea-
25 nor.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD10285-01-1
A. 6664 2
1 (d) For a person who has been convicted of more than one misdemeanor
2 arising from separate incidences, the waiting period shall be three
3 years from the date of conviction of last such misdemeanor.
4 (e) For a person who has been convicted of one non-violent felony, the
5 waiting period shall be five years from the date of conviction of such
6 non-violent felony.
7 (f) For a person who has been convicted of more than one non-violent
8 felony arising from separate incidences, the waiting period shall be ten
9 years from the date of conviction of the last non-violent felony.
10 (g) For a person who has been convicted of a violent felony, the wait-
11 ing period shall be ten years from the date of the conviction of such
12 violent felony.
13 (h) For a person convicted of more than one violent felony arising
14 from separate incidences, the waiting period shall be twenty years from
15 the date of conviction of the last violent felony.
16 3. An application for sealing a record of conviction shall be made to
17 the judge who originally sentenced the applicant. In the event such
18 judge is unavailable, the application shall be made to a sitting judge
19 in the court in which the conviction was ordered, as designated by the
20 supervising or administrative judge of that court. The judge may refer
21 an application under this section to a magistrate, who shall have the
22 authority to grant such an application in the case of a misdemeanor
23 conviction or a conviction to a non-criminal offense. In the event the
24 magistrate recommends denial of an application relating to a misdemeanor
25 or non-criminal offense, such recommendation shall be made to a judge as
26 designated in this section, who shall, upon reviewing the record and
27 hearing the applicant, rule on the application. In the case of a felony
28 matter, the magistrate must make a recommendation to the judge regarding
29 such application, stating in writing the reasons for the recommendation.
30 The judge shall review the record and such recommendation and afford the
31 applicant an opportunity to be heard prior to ruling on the application.
32 4. An application pursuant to this section shall be sworn to under
33 penalty of perjury and shall include:
34 (a) A list of each of the petitioner's convictions in New York state ,
35 any convictions in any other state or in federal court, the sentence for
36 each such conviction and the date of the sentence. Non-criminal
37 convictions outside New York state need not be included.
38 (b) A statement as to the termination of each aspect of the sentence
39 for each of the above-listed convictions, include the dates of termi-
40 nation from probation, parole or other supervisory sentences, a state-
41 ment as to the existence of order or orders of protection and the end
42 date of such, and a statement as to the completion of any conditional
43 sentences or any other conditions of sentence imposed by the court or by
44 law, although this shall not be construed to require a person to have
45 restored driving or other privileges that have been lost, suspended or
46 revoked due to the conviction.
47 (c) A description of the nature and circumstances of each crime listed
48 in paragraph (a) of this subdivision.
49 (d) A description of the nature of the petitioner's personal circum-
50 stances since the conviction, which shall establish that the petitioner
51 is entitled to the relief provided in this section.
52 5. The application for sealing a record of conviction shall be served
53 upon the agency that originally prosecuted the case on twenty-one days
54 notice. The prosecuting agency may file an answer to the application
55 seven days prior to the return date of the motion. The court may grant
56 an application on submissions if the prosecuting agency does not file an
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1 opposition. If there is objection, the court must review the issues of
2 fact and law and determine the merits of the application.
3 6. In the case of non-criminal convictions, misdemeanor convictions
4 and non-violent felony convictions, the court shall grant the applica-
5 tion unless sealing the records will harm public safety or would not
6 serve the interests of justice. In the case of a violent felony
7 conviction or a conviction for a sex offense, the court shall not grant
8 the application unless the applicant has established that he or she has
9 been entirely rehabilitated, that the crime was an aberration in the
10 applicant's life, that it is not likely to recur and that it is not
11 against public policy and the interests of justice to grant such appli-
12 cation.
13 7. If the court deems it necessary, the court may order a report as to
14 the applicant's background and circumstances from an independent
15 consultant, expert or agency deemed qualified by the court to prepare
16 such a report.
17 8. Upon the request of either party or sua sponte, the court shall
18 conduct a hearing as to any issue of fact or law or in the court's
19 discretion, may hear testimony or accept written submissions relating
20 the merits of the application or any matter deemed appropriate by the
21 court in furtherance of determining the motion. In any such hearing, the
22 court shall not be bound by the rules of evidence and may admit hearsay
23 testimony which the court believes will shed light on the applicant's
24 character and eligibility to receive relief under this section. However,
25 a decision to grant or deny an application may not be based solely on
26 hearsay or otherwise traditionally inadmissible evidence.
27 9. A decision granting or denying an application under this section
28 shall be in writing and shall state the reasons for the court's ruling,
29 unless the court grants the application without objection or written
30 response by the prosecutor, in which case the court may issue an order
31 without a written decision.
32 10. The court's sealing order shall be effective on the thirtieth day
33 after issuance of the order, except that a court may shorten that period
34 upon good cause show.
35 11. Upon the effective date of a sealing order by the court, all
36 state, county and local government and law enforcement agencies and
37 their agents and contractors must seal any record relating to the sealed
38 conviction, including any and all records relating to the arrest and/or
39 detention of the applicant. Each agency shall designate a method of
40 safekeeping documents and computer records in a manner which will not
41 indicate that there ever was a record as to the arrest, detention or
42 conviction of the individual. Records shall be unsealed only pursuant to
43 court order except that the following agencies may maintain records in
44 the following manner:
45 (a) The department of criminal justice services shall maintain a
46 sealed record in its database in a manner that will not be accessible to
47 anyone other than law enforcement agents or prosecution agencies in the
48 course of a criminal investigation or prosecution, or upon a court order
49 or court-ordered subpoena ordering release of the information. In the
50 event the applicant is arrested subsequent to the sealing of the
51 records, the unsealed record shall be included in the department of
52 criminal justice services "nysid" sheet that is printed out based on the
53 applicant's fingerprints. A court, upon determining it is in the inter-
54 ests of justice to unseal such a record, shall order its unsealing,
55 which shall allow the prosecutor and the court to unseal the records of
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1 their agency pertaining to that arrest. Any such unsealed files shall be
2 made available to the defendant and his or her attorney.
3 (b) The department of correctional services and all local jail or
4 prison agencies shall maintain sealed records in a manner that precludes
5 the public from obtaining information relating to the arrest, detention
6 or conviction of the individual whose record has been sealed, including
7 but not limited to removal from all publicly available databases on the
8 internet and otherwise. However, such agencies shall maintain a record
9 of individuals who have been in custody which shall be kept by a custo-
10 dian of those records within the agency. In the event the inmate shall
11 be readmitted to the facility, the custodian is authorized to re-open
12 such files, to be used solely for the agency's official purposes.
13 12. Nothing in this section shall change the sentencing provisions in
14 the penal law. A sealed record, unsealed at the time of a re-arrest,
15 shall continue to qualify as a conviction for sentencing purposes and
16 may be used to establish an element of a crime as provided in the penal
17 law.
18 13. It shall be a class A misdemeanor to publish information, other
19 than as delineated in paragraphs (a) and (b) of subdivision eleven of
20 this section, regarding the arrest, detention or conviction of an indi-
21 vidual whose record has been sealed. A person aggrieved by a violation
22 of this section shall have the right to institute a civil proceeding,
23 regardless of whether a criminal action was commenced. A plaintiff is
24 entitled to five hundred dollars for each occurrence along with the
25 actual damages caused by the disclosure of such sealed record. Law
26 enforcement, prosecution officials and employees of the office of court
27 administration shall have a defense to a criminal or civil action under
28 this section if they believed,in good faith, that they were permitted or
29 required by law to disclose a sealed conviction. There shall be no
30 prosecutorial or law enforcement immunity under this section for any
31 government official who knowingly and intentionally publishes a sealed
32 record which such official knows to have been sealed under this section.
33 If a conviction is unsealed pursuant to a new arrest, the provisions of
34 this subdivision shall not apply.
35 14. An application to unseal a record, which has been sealed pursuant
36 to this section, may be granted by the court if it is determined that,
37 in the interests of justice, the information regarding the underlying
38 conviction should be disclosed. There shall be a presumption in favor of
39 unsealing a record if the person who is subject to the sealed record is
40 a witness in a criminal case. An application under this subdivision may
41 be made either to the court that originally sentenced the defendant in
42 the sealed case or may be made to the court which has jurisdiction over
43 any case in New York in which the sealed record may be relevant, includ-
44 ing the case where the defendant on the sealed case is a witness in a
45 civil, criminal or other court proceeding.
46 15. A sealed conviction shall not operate as a disqualification of any
47 person to pursue or engage in any lawful activity, occupation, profes-
48 sion or calling unless so ordered by the court. Except where specif-
49 ically required or permitted by statute or upon specified authorization
50 of a superior court, no such person shall be required to divulge infor-
51 mation pertaining to the sealed record. Such person shall be permitted
52 to respond in the negative to the question "have you ever been convicted
53 of a crime or violation?" or to any question with the same substantive
54 content.
55 16. Non-governmental employers are hereinafter not permitted to ask
56 prospective applicants if they have been arrested or if they have been
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1 convicted of a crime or violation. Private citizens and employers are
2 authorized to search official government records for criminal
3 convictions in a manner consistent with the law. In the event an employ-
4 er searches the criminal record of an individual, such individual shall
5 be put on notice, orally or in writing, that such search will occur.
6 17. Any business, agency or individual who purchases individual crimi-
7 nal records or databases of criminal records shall not disclose any
8 information as to a record which has been sealed subsequent to the time
9 the data was obtained. Any agency providing data to the public or to
10 private businesses shall develop a system whereby any record which is to
11 be re-disclosed can be easily and quickly checked by the person, busi-
12 ness or entity which had obtained the record before it was sealed to
13 determine if the record has been subsequently sealed. No governmental
14 agency shall sell any records without developing such a system. Any
15 record sold or provided to an individual, business or entity shall
16 contain the following warning:
17 YOU ARE NOT PERMITTED TO DISCLOSE THIS INFORMATION TO ANYONE WITHOUT
18 FIRST CHECKING TO SEE IF THIS RECORD WAS SEALED AFTER YOU RECEIVED IT.
19 IT IS UNLAWFUL TO DISCLOSE SEALED RECORDS. TO DETERMINE IF THIS RECORD
20 HAS BEEN SEALED, CONTACT (INCLUDE AGENCY CONTACT INFORMATION HERE).
21 18. Either party may appeal as of right from the court's order. The
22 appealing party must serve notice of appeal upon the court and the
23 opposing party within thirty days of the issuance of the court order. If
24 the order is appealed by the prosecutor, such notice of appeal shall be
25 deemed a stay of the order to seal the records. The prosecutor shall
26 perfect the appeal within sixty days, or the sealing order shall imme-
27 diately take effect unless the court grants an extension of the time to
28 perfect the appeal upon good cause shown by the prosecutor. The appeal
29 shall be taken to the same court to which the appeal of the original
30 conviction could have been brought. The standard of review at the inter-
31 mediary appellate court shall be abuse of discretion. The decision of an
32 intermediary appellate court shall be appealable to the court of appeals
33 upon leave of the court.
34 19. The right to make an application under this section may not be
35 waived at the time a guilty plea is entered on any case in New York
36 state.
37 § 2. Subdivision 16 of section 296 of the executive law, as separately
38 amended by section 3 of part N and section 14 of part AAA of chapter 56
39 of the laws of 2009, is amended to read as follows:
40 16. It shall be an unlawful discriminatory practice, unless specif-
41 ically required or permitted by statute, for any person, agency, bureau,
42 corporation or association, including the state and any political subdi-
43 vision thereof, to make any inquiry about, whether in any form of appli-
44 cation or otherwise, or to act upon adversely to the individual
45 involved, any arrest or criminal accusation of such individual not then
46 pending against that individual which was followed by a termination of
47 that criminal action or proceeding in favor of such individual, as
48 defined in subdivision two of section 160.50 of the criminal procedure
49 law, or by a youthful offender adjudication, as defined in subdivision
50 one of section 720.35 of the criminal procedure law, or by a conviction
51 for a violation sealed pursuant to section 160.55 of the criminal proce-
52 dure law or by a conviction which is sealed pursuant to section 160.58
53 of the criminal procedure law, or by a conviction for a criminal or
54 non-criminal offense which is sealed pursuant to section 160.65 of the
55 criminal procedure law, in connection with the licensing, employment or
56 providing of credit or insurance to such individual; provided, further,
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1 that no person shall be required to divulge information pertaining to
2 any arrest or criminal accusation of such individual not then pending
3 against that individual which was followed by a termination of that
4 criminal action or proceeding in favor of such individual, as defined in
5 subdivision two of section 160.50 of the criminal procedure law, or by a
6 youthful offender adjudication, as defined in subdivision one of section
7 720.35 of the criminal procedure law, or by a conviction for a violation
8 sealed pursuant to section 160.55 of the criminal procedure law, or by a
9 conviction which is sealed pursuant to section 160.58 of the criminal
10 procedure law, or by a conviction for a criminal or non-criminal offense
11 which is sealed pursuant to section 160.65 of the criminal procedure
12 law. The provisions of this subdivision shall not apply to the licensing
13 activities of governmental bodies in relation to the regulation of guns,
14 firearms and other deadly weapons or in relation to an application for
15 employment as a police officer or peace officer as those terms are
16 defined in subdivisions thirty-three and thirty-four of section 1.20 of
17 the criminal procedure law; provided further that the provisions of this
18 subdivision shall not apply to an application for employment or member-
19 ship in any law enforcement agency with respect to any arrest or crimi-
20 nal accusation which was followed by a youthful offender adjudication,
21 as defined in subdivision one of section 720.35 of the criminal proce-
22 dure law, or by a conviction for a violation sealed pursuant to section
23 160.55 of the criminal procedure law, or by a conviction which is sealed
24 pursuant to section 160.58 of the criminal procedure law, or by a
25 conviction for a criminal or non-criminal offense which is sealed pursu-
26 ant to section 160.65 of the criminal procedure law.
27 § 3. This act shall take effect on the sixtieth day after it shall
28 have become a law.