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S00479 Summary:

BILL NOS00479
 
SAME ASSAME AS A00090
 
SPONSORHOYLMAN
 
COSPNSR
 
MLTSPNSR
 
Amd §§160.58, 170.55 & 170.56, CP L
 
Relates to orders of adjournment in contemplation of dismissal by mandating that judges seal certain records of defendants rather than giving judges discretion for such an action; and limits the total period of adjournment to 90 days.
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S00479 Actions:

BILL NOS00479
 
01/06/2021REFERRED TO CODES
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S00479 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                           479
 
                               2021-2022 Regular Sessions
 
                    IN SENATE
 
                                       (Prefiled)
 
                                     January 6, 2021
                                       ___________
 
        Introduced  by  Sen. HOYLMAN -- read twice and ordered printed, and when
          printed to be committed to the Committee on Codes
 
        AN ACT to amend the criminal procedure law, in  relation  to  orders  of
          adjournment  in  contemplation  of  dismissal and sealing of defendant
          records

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section  1.  Subdivision 1 of section 160.58 of the criminal procedure
     2  law, as added by section 3 of part AAA of chapter  56  of  the  laws  of
     3  2009, is amended to read as follows:
     4    1. A defendant convicted of any offense defined in article two hundred
     5  twenty or two hundred twenty-one of the penal law or a specified offense
     6  defined  in  subdivision  five of section 410.91 of this chapter who has
     7  successfully completed a judicial diversion program  under  article  two
     8  hundred sixteen of this chapter, or one of the programs heretofore known
     9  as drug treatment alternative to prison or another judicially sanctioned
    10  drug  treatment  program  of similar duration, requirements and level of
    11  supervision, and has completed the sentence imposed for the  offense  or
    12  offenses,  [is  eligible  to] shall have such offense or offenses sealed
    13  pursuant to this section.
    14    § 2. Subdivision 2 of section 160.58 of the criminal procedure law, as
    15  added by section 3 of part AAA of chapter 56 of the  laws  of  2009,  is
    16  amended to read as follows:
    17    2.  The  court that sentenced the defendant to a judicially sanctioned
    18  drug treatment program [may on its own motion,  or  on  the  defendant's
    19  motion,]  shall  order  that all official records and papers relating to
    20  the arrest, prosecution and conviction which resulted in the defendant's
    21  participation in the judicially sanctioned  drug  treatment  program  be
    22  conditionally  sealed.  In  such  case, the court may also conditionally
    23  seal the arrest, prosecution and conviction records  for  no  more  than

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD01578-01-1

        S. 479                              2
 
     1  [three]  five  of  the defendant's prior [eligible] misdemeanors, [which
     2  for purposes  of  this  subdivision  shall  be  limited  to  misdemeanor
     3  offenses defined in article two hundred twenty or two hundred twenty-one
     4  of  the  penal law.   The court may only seal the records of the defend-
     5  ant's arrests, prosecutions and convictions when] provided that a misde-
     6  meanor for which registration as a sex offender is required shall not be
     7  sealed pursuant to this section. The court may seal such records when:
     8    (a) the sentencing court has requested and received from the  division
     9  of  criminal  justice  services or the Federal Bureau of Investigation a
    10  fingerprint based criminal history record of  the  defendant,  including
    11  any  sealed  or suppressed information. The division of criminal justice
    12  services shall also include a criminal history report, if any, from  the
    13  Federal  Bureau of Investigation regarding any criminal history informa-
    14  tion that occurred  in  other  jurisdictions.  The  division  is  hereby
    15  authorized to receive such information from the Federal Bureau of Inves-
    16  tigation  for  this  purpose.  The parties shall be permitted to examine
    17  these records;
    18    (b) the defendant or court has identified the  misdemeanor  conviction
    19  or convictions for which relief may be granted;
    20    (c) the court has received documentation that the sentences imposed on
    21  the  [eligible]  misdemeanor  convictions  have been completed, or if no
    22  such documentation is reasonably available, a sworn affidavit  that  the
    23  sentences imposed on the prior misdemeanors have been completed; and
    24    (d)  the court has notified the district attorney of each jurisdiction
    25  in which the defendant has been convicted of an offense with respect  to
    26  which  sealing  is  sought,  and  the court or courts of record for such
    27  offenses, that the court is  considering  sealing  the  records  of  the
    28  defendant's [eligible] misdemeanor convictions. Both the district attor-
    29  ney  and  the court shall be given a reasonable opportunity, which shall
    30  not be less than thirty days, in which to comment and  submit  materials
    31  to aid the court in making such a determination.
    32    § 3. Subdivision 3 of section 160.58 of the criminal procedure law, as
    33  added  by  section  3  of part AAA of chapter 56 of the laws of 2009, is
    34  amended to read as follows:
    35    3. At the request of the defendant or the district attorney of a coun-
    36  ty in which the defendant committed a crime that is the subject  of  the
    37  sealing application, the court [may] shall conduct a hearing to consider
    38  and  review any relevant evidence offered by either party that would aid
    39  the court in its decision whether to seal the records of the defendant's
    40  arrests, prosecutions and convictions. In making such [a] determination,
    41  the court shall consider any relevant factors, including but not limited
    42  to the following factors: (i) the circumstances [and seriousness] of the
    43  offense or offenses that resulted in the conviction or convictions; (ii)
    44  [the character of the defendant, including his or her]  the  defendant's
    45  completion  of  the judicially sanctioned treatment program as described
    46  in subdivision one of  this  section;  (iii)  the  defendant's  criminal
    47  conviction  history  taking into account the time that has elapsed since
    48  the occurrence of any conviction and the age of  the  defendant  at  the
    49  time  of such conviction; and (iv) the impact of sealing the defendant's
    50  records upon his or her rehabilitation and his  or  her  successful  and
    51  productive reentry and reintegration into society, and on public safety.
    52    § 4. Subdivision 2 of section 170.55 of the criminal procedure law, as
    53  amended  by  chapter  222  of  the  laws  of 1994, is amended to read as
    54  follows:
    55    2. An adjournment in contemplation of dismissal is an  adjournment  of
    56  the  action  without date ordered [with a view to ultimate] intended for

        S. 479                              3
 
     1  the dismissal of the accusatory instrument in  furtherance  of  justice.
     2  Upon  issuing such an order, the court must release the defendant on his
     3  own recognizance.  [Upon application of the people, made at any time not
     4  more  than  six months, or in the case of a family offense as defined in
     5  subdivision one of section 530.11 of this chapter, one year,  after  the
     6  issuance  of  such order, the court may restore the case to the calendar
     7  upon a determination that dismissal of the accusatory  instrument  would
     8  not be in furtherance of justice, and the action must thereupon proceed.
     9  If  the case is not so restored within such six months or one year peri-
    10  od, the accusatory instrument is, at  the  expiration  of  such  period,
    11  deemed  to  have been dismissed by the court in furtherance of justice.]
    12  At any time prior to dismissal the court may modify  the  conditions  or
    13  extend  or  reduce the term of adjournment, except that the total period
    14  of adjournment shall not exceed ninety days, or in the case of a  family
    15  offense  as  defined  in  section  530.11 of this chapter, the period of
    16  adjournment shall not be more than  one  year.  Upon  violation  of  any
    17  condition fixed by the court, the court may revoke its order and restore
    18  the case to the calendar and the prosecution may proceed. If the case is
    19  not  so  restored  to the calendar during the period fixed by the court,
    20  the accusatory instrument is, at the expiration of such  period,  deemed
    21  to have been dismissed.
    22    § 5. Section 170.56 of the criminal procedure law, as added by chapter
    23  1042 of the laws of 1971, subdivision 1 as amended by chapter 360 of the
    24  laws  of 1977 and subdivision 3 as amended by chapter 905 of the laws of
    25  1977, is amended to read as follows:
    26  § 170.56 Adjournment in contemplation of dismissal  in  cases  involving
    27             marihuana.
    28    1.  Upon or after arraignment in a local criminal court upon an infor-
    29  mation, a prosecutor's information or a misdemeanor complaint, where the
    30  sole  remaining  count  or  counts  charge  a violation or violations of
    31  section 221.05, 221.10, 221.15, 221.35 or 221.40 of the  penal  law  and
    32  before the entry of a plea of guilty thereto or commencement of  a trial
    33  thereof,  the  court,  upon  motion  of  a defendant, may order that all
    34  proceedings be suspended and the action adjourned  in  contemplation  of
    35  dismissal, or upon a finding that adjournment would not be necessary [or
    36  appropriate] and the setting forth in the record of the reasons for such
    37  findings,  may  dismiss in furtherance of justice the accusatory instru-
    38  ment[; provided, however, that the court may not order such  adjournment
    39  in  contemplation  of dismissal or dismiss the accusatory instrument if:
    40  (a) the defendant  has  previously  been  granted  such  adjournment  in
    41  contemplation  of  dismissal,  or  (b) the defendant has previously been
    42  granted a dismissal under this section, or (c) the defendant has  previ-
    43  ously  been convicted of any offense involving controlled substances, or
    44  (d) the defendant has previously been  convicted  of  a  crime  and  the
    45  district  attorney  does not consent or (e) the defendant has previously
    46  been adjudicated a youthful offender on the basis of  any  act  or  acts
    47  involving  controlled  substances  and  the  district  attorney does not
    48  consent].
    49    2.  [Upon ordering the action adjourned in contemplation of dismissal,
    50  the court must set and specify such conditions for  the  adjournment  as
    51  may  be appropriate, and such conditions may include placing the defend-
    52  ant under the supervision of any public or private agency. At  any  time
    53  prior  to  dismissal  the  court  may modify the conditions or extend or
    54  reduce the term of the adjournment, except  that  the  total  period  of
    55  adjournment  shall  not  exceed  twelve  months.   Upon violation of any
    56  condition fixed by the court, the court may revoke its order and restore

        S. 479                              4

     1  the case to the calendar and the prosecution thereupon must proceed.  If
     2  the case is not so restored to the calendar during the period  fixed  by
     3  the court, the accusatory instrument is, at the expiration of such peri-
     4  od,  deemed  to  have  been dismissed in the furtherance of justice.] An
     5  adjournment in contemplation of  dismissal  is  an  adjournment  of  the
     6  action without date ordered intended for the dismissal of the accusatory
     7  instrument  in  furtherance  of justice. Upon issuing such an order, the
     8  court must release the defendant on his own recognizance.   At any  time
     9  prior  to  dismissal  the  court  may modify the conditions or extend or
    10  reduce the term of adjournment, except that the total period of adjourn-
    11  ment shall not exceed ninety days. Upon violation of any condition fixed
    12  by the court, the court may revoke its order and restore the case to the
    13  calendar and the prosecution may proceed. If the case is not so restored
    14  to the calendar during the period fixed by  the  court,  the  accusatory
    15  instrument  is,  at  the  expiration of such period, deemed to have been
    16  dismissed.
    17    3. Upon or after dismissal of such charges against  a  defendant  [not
    18  previously  convicted  of a crime,] the court shall order that all offi-
    19  cial records and papers, relating to the defendant's arrest  and  prose-
    20  cution, whether on file with the court, a police agency, or the New York
    21  state  division  of  criminal justice services, be sealed and, except as
    22  otherwise provided in paragraph (d) of subdivision one of section 160.50
    23  of this chapter, not made available to any person or public  or  private
    24  agency[;  except,  such records shall be made available under order of a
    25  court for the purpose of determining whether, in subsequent proceedings,
    26  such person qualifies under this section for a dismissal or  adjournment
    27  in contemplation of dismissal of the accusatory instrument].
    28    4. Upon the granting of an order pursuant to subdivision three of this
    29  section,  the  arrest  and prosecution shall be deemed a nullity and the
    30  defendant shall be restored, in contemplation of law, to the  status  he
    31  occupied before his arrest and prosecution.
    32    §  6.  This  act  shall take effect on the sixtieth day after it shall
    33  have become a law.
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