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.
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.
