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A10180 Summary:

A10180 Actions:

A10180 Floor Votes:

A10180 Text:

 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          10180
 
                   IN ASSEMBLY
 
                                      March 9, 2010
                                       ___________
 
        Introduced  by  M.  of  A. WEINSTEIN, DESTITO, CLARK, MAGNARELLI, GLICK,
          LANCMAN, ABBATE, GABRYSZAK, JAFFEE, ROSENTHAL, PAULIN  --  Multi-Spon-
          sored  by  --  M. of A.   BRODSKY, CHRISTENSEN, DINOWITZ, GALEF, JOHN,
          KAVANAGH, McENENY, MILLMAN -- read once and referred to the  Committee
          on Governmental Operations
 
        AN ACT to amend the executive law, in relation to authorizing the secre-

          tary  of  state  to  accept  service of process and receipt of mail on
          behalf of victims of domestic violence for the purpose of  maintaining
          the confidentiality of the location of such victims
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. The executive law is amended by adding a new section 108 to
     2  read as follows:
     3    § 108. Address confidentiality program.    There  is  created  in  the
     4  office  of  the secretary of state a program to be known as the "address
     5  confidentiality program" to protect  victims  of  domestic  violence  by
     6  authorizing  the  use of designated addresses for such victims and their
     7  minor children. The program shall be administered by  the  secretary  of
     8  state.

     9    1.  Definitions.  For the purposes of this section the following words
    10  shall, unless the context requires otherwise, have the  following  mean-
    11  ings:
    12    (a)  "Domestic  violence"  means  an  act  which  would  constitute  a
    13  violation of the penal law, including, but not limited  to,  an  act  as
    14  defined in subdivision one of section eight hundred twelve of the family
    15  court  act, where such act is or has alleged to have been committed by a
    16  member of the same family or household as defined in subdivision one  of
    17  section  eight  hundred  twelve  of the family court act, and includes a
    18  threat of any such act, regardless of whether the act or threat  thereof
    19  has been reported to law enforcement officers.

    20    (b)  "Actual  address"  means  the  residential street address, school
    21  address or work address of an individual, as specified  on  his  or  her
    22  application to be a program participant under this section.
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD16352-02-0
        A. 10180                            2
 
     1    (c)  "Program  participant"  means  a  person  certified  as a program
     2  participant under this section.
     3    (d)  "Mail"  means first class letters delivered via the United States
     4  Postal Service, including priority,  express  and  certified  mail,  and

     5  excluding packages, parcels, periodicals and catalogues, unless they are
     6  clearly  identifiable  as  pharmaceuticals or clearly indicate that they
     7  are sent by a government agency.
     8    (e) "Substitute address" means the secretary's designated address  for
     9  the address confidentiality program.
    10    (f) "Secretary" means the secretary of state.
    11    2.  Address  confidentiality program; application; certification.  (a)
    12  An adult person, a parent or legal guardian acting on behalf of a minor,
    13  or a legal guardian acting on behalf of  an  incapacitated  person,  may
    14  apply to the secretary to have an address designated by the secretary to
    15  serve  as  the person's address or address of the minor or incapacitated

    16  person in lieu of the  person's  actual  address.  The  secretary  shall
    17  approve  an  application  if  it  is filed in the manner and on the form
    18  prescribed by the secretary, and if it includes:
    19    (i) A signed written statement made under oath by the applicant that:
    20    (A) the applicant, or the  minor  or  incapacitated  person  on  whose
    21  behalf the application is made, is a victim of domestic violence;
    22    (B)  the  applicant,  or  the  minor  or incapacitated person on whose
    23  behalf the application is made, has left his or her residence because of
    24  such violence;
    25    (C) the applicant fears for his or her safety or his or her children's
    26  safety, or the safety of the minor  or  incapacitated  person  on  whose

    27  behalf the application is made; and
    28    (D)  the  parent  or  legal  guardian applying on behalf of a minor or
    29  incapacitated person has legal authority to act on the person's behalf;
    30    (ii) a designation of the secretary as agent for purposes  of  service
    31  of process and for the purpose of receipt of mail;
    32    (iii)  the mailing address where the applicant can be contacted by the
    33  secretary and the telephone number or numbers where the applicant can be
    34  called by the secretary;
    35    (iv) the actual address or addresses that the applicant  requests  not
    36  be disclosed because of the increased risk of domestic violence; and
    37    (v)  the  signature of the applicant and the name and signature of any

    38  individual or representative of any office designated by  the  secretary
    39  under  subdivision three of this section who assisted in the preparation
    40  of the application, and the date  on  which  the  applicant  signed  the
    41  application.
    42    (b)  The  secretary  shall  establish, distribute and make available a
    43  form for the purpose of making applications pursuant to this section.
    44    (c) Applications shall be filed with the office of the secretary.
    45    (d) Upon receipt of a properly completed  application,  the  secretary
    46  shall  certify the applicant as a program participant and shall serve as
    47  the participant's agent for service of process and receipt of  mail  for
    48  the duration of the term of certification.

    49    (e)  Participants shall be certified for four years following the date
    50  of filing, unless the certification is  withdrawn  or  cancelled  before
    51  that  date.  The  secretary  shall  promulgate rules and regulations for
    52  renewal of applications pursuant to this section.
    53    3. Designation of agencies to assist applicants.  The secretary  shall
    54  designate  state,  local  or nonprofit agencies that provide counseling,
    55  referral, shelter or other specialized services to victims  of  domestic
    56  violence  to  assist  persons  applying to be program participants. Such
        A. 10180                            3
 
     1  persons providing assistance shall be trained by  the  secretary.    Any

     2  assistance and counseling rendered by an officer of the secretary or his
     3  or  her  designees  to  applicants shall in no way be construed as legal
     4  advice.
     5    4.  Use  and acceptance of substitute address; mail forwarding.  (a) A
     6  program participant may request that state and local  agencies  use  the
     7  substitute  address.  When  creating,  modifying or maintaining a public
     8  record, state and local agencies shall  accept  the  substitute  address
     9  upon  demonstration by a program participant of his or her certification
    10  in the program, unless  the  secretary  waives  this  requirement  after
    11  determining that:
    12    (i) the agency has a bona fide statutory or administrative requirement

    13  for the use of the participant's actual address which would otherwise be
    14  confidential under this section; and
    15    (ii)  the  agency  has  explained how its acceptance of the substitute
    16  address will prevent the agency from meeting its obligations  under  the
    17  law and why it cannot meet its statutory or administrative obligation by
    18  a change in its internal procedures.
    19    (b)  Any  agency receiving a waiver shall maintain the confidentiality
    20  of the program participant's address by  redacting  the  actual  address
    21  when the record is released to any person and shall not make the program
    22  participant's actual address available for inspection or copying, except
    23  under the following circumstances:

    24    (i)  if  requested  by  a  law enforcement agency for a legitimate law
    25  enforcement purpose as determined by the law enforcement agency; or
    26    (ii) if directed by a court order to a person identified in the order.
    27    (c) Upon receipt by the secretary of a process or mail for  a  partic-
    28  ipant,  the  office  of the secretary shall immediately forward all such
    29  process or mail to the appropriate program participants at their  actual
    30  address, and shall record the date of such forwarding.
    31    (d) A program participant may use the substitute address as his or her
    32  work address.
    33    (e) The secretary or any member of the department of state who reason-
    34  ably  and  in  good  faith  handles  any  process or mail on behalf of a

    35  participant in accordance with this section shall  be  immune  from  any
    36  civil liability which might otherwise result by reason of such actions.
    37    5.  Cancellation  of  certification.    (a) The secretary may cancel a
    38  program participant's certification if, after the  passage  of  fourteen
    39  days:
    40    (i) from the date of changing his or her name, the program participant
    41  does not notify the secretary that he or she has obtained a name change;
    42  however, the program participant may reapply under his or her new name;
    43    (ii)  from the date of changing his or her actual address, the program
    44  participant fails to notify the secretary of the change of such address;
    45  or

    46    (iii) from the date the secretary first receives  mail,  forwarded  to
    47  the program participant's address, returned as non-deliverable.
    48    (b)  The secretary shall cancel certification of a program participant
    49  who applies using false information.
    50    (c) The secretary shall cancel certification of a program  participant
    51  if  the  participant's  certification term has expired and certification
    52  renewal has not been completed.
    53    (d) The secretary shall send notice of  cancellation  to  the  program
    54  participant.  Notice  of  cancellation  shall  set  out  the reasons for
    55  cancellation. The program participant shall have thirty days  to  appeal
    56  the cancellation decision under procedures developed by the secretary.

        A. 10180                            4
 
     1    (e)  Program  participants may withdraw from the program by giving the
     2  secretary written notice of their withdrawal  and  his  or  her  current
     3  identification  card.  The  secretary shall establish, by rule, a secure
     4  procedure for ensuring that the request for withdrawal is legitimate.
     5    (f) Any records or documents pertaining to a program participant shall
     6  not be a public record and shall be retained and held confidential for a
     7  period  of  three  years  after  termination  of  certification and then
     8  destroyed.
     9    6. Disclosure of participant's address prohibited;  exceptions.    The
    10  secretary shall not make a program participant's address, other than the

    11  substitute  address,  available  for inspection or copying, except under
    12  any of the following circumstances:
    13    (a) if requested by a law enforcement  agency  for  a  legitimate  law
    14  enforcement purpose as determined by the law enforcement agency; or
    15    (b)  to  a  person  identified  in a court order, upon the secretary's
    16  receipt of that court order which specifically orders the disclosure  of
    17  a particular program participant's address and the reasons stated there-
    18  for; or
    19    (c)  to verify the participation of a specific program participant, in
    20  which case the secretary may only confirm information  supplied  by  the
    21  requester.
    22    7.  Rules  and regulations.   The secretary shall promulgate rules and

    23  regulations necessary to implement the provisions of this section.
    24    8. Report to the legislature.   The  secretary  shall  submit  to  the
    25  legislature,  no  later  than February first of each year, a report that
    26  includes for each county, the total number of applications received, the
    27  total number of persons participating in the program established by this
    28  section during the previous calendar year and the total number of pieces
    29  of mail forwarded to program participants during the  previous  calendar
    30  year.
    31    §  2.  This  act  shall take effect nine months from the date it shall
    32  have become a law; provided, however, that the  secretary  of  state  is
    33  authorized  and  directed to promulgate all rules, regulations and forms

    34  necessary to implement the provisions of  this  act,  on  its  effective
    35  date, on or before such date.