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S06614 Summary:

S06614 Actions:

S06614 Committee Votes:

S06614 Floor Votes:

S06614 Text:

 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          6614
 
                               2019-2020 Regular Sessions
 
                    IN SENATE
 
                                      June 20, 2019
                                       ___________
 
        Introduced  by  Sen.  BAILEY -- read twice and ordered printed, and when
          printed to be committed to the Committee on Rules
 
        AN ACT to amend the criminal procedure  law,  in  relation  to  vacating
          records  for  certain proceedings; and to repeal certain provisions of
          such law relating thereto

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section  1.  Paragraph  (k)  of subdivision 1 of section 440.10 of the
     2  criminal procedure law, as added by a  chapter  of  the  laws  of  2019,
     3  amending the penal law and the criminal procedure law relating to vacat-
     4  ing  records  for  certain proceedings, as proposed in legislative bills
     5  numbers S. 6579-A and A. 8420-A, is REPEALED and a new paragraph (k)  is
     6  added to read as follows:
     7    (k)  The  judgment  occurred prior to the effective date of this para-
     8  graph and is a conviction for an offense as defined in subparagraph  (i)
     9  or  (ii) of paragraph (k) of subdivision three of section 160.50 of this
    10  part, in which case the court shall presume that a  conviction  by  plea
    11  for  the aforementioned offenses was not knowing, voluntary and intelli-
    12  gent if it has severe or ongoing consequences, including but not limited
    13  to potential or actual immigration consequences, and shall presume  that
    14  a  conviction  by  verdict  for  the aforementioned offenses constitutes
    15  cruel and unusual punishment under section five of article  one  of  the
    16  state  constitution,  based  on those consequences. The people may rebut
    17  these presumptions.
    18    § 2. Paragraph (k) of subdivision 3 of section 160.50 of the  criminal
    19  procedure law, as amended by a chapter of the laws of 2019, amending the
    20  penal  law  and  the criminal procedure law relating to vacating records
    21  for certain proceedings, as proposed in  legislative  bills  numbers  S.
    22  6579-A and A. 8420-A, is amended to read as follows:
    23    (k)  (i)  The  [accusatory  instrument  alleged]  conviction was for a
    24  violation of[:

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD13421-10-9
        S. 6614                             2

     1    (i)] article two hundred twenty or section 240.36  of  the  penal  law
     2  prior  to  the  effective  date of article two hundred twenty-one of the
     3  penal law, and the sole controlled substance involved was marihuana  and
     4  the conviction was only for a violation or violations; or
     5    (ii)  the  conviction  is  for an offense defined in section 221.05 or
     6  221.10 of the penal law prior to the effective date of  the  chapter  of
     7  the laws of two thousand nineteen that amended this [section] paragraph;
     8  or
     9    (iii)  the  conviction  is for an offense defined in section 221.05 or
    10  221.10 of the penal law.
    11    No defendant shall be required or permitted to waive  eligibility  for
    12  sealing or expungement pursuant to this [paragraph] section as part of a
    13  plea  of guilty, sentence or any agreement related to a conviction for a
    14  violation of section 221.05 or section 221.10 of the penal law  and  any
    15  such waiver shall be deemed void and wholly unenforceable.
    16    §  3. Paragraph (a) of subdivision 5 of section 160.50 of the criminal
    17  procedure law, as added by a chapter of the laws of 2019,  amending  the
    18  penal  law  and  the criminal procedure law relating to vacating records
    19  for certain proceedings, as proposed in  legislative  bills  numbers  S.
    20  6579-A and A. 8420-A, is amended to read as follows:
    21    (a)  Expungement of certain marihuana-related records. [Where an accu-
    22  satory instrument alleged] A conviction  for  an  offense  described  in
    23  paragraph  (k)  of  subdivision  three  of  this section[, such count or
    24  counts of the accusatory instrument in such criminal action or  proceed-
    25  ing]  shall,  on  and  after  the  effective  date of this paragraph, in
    26  accordance with  the  provisions  of  this  paragraph,  be  vacated  and
    27  dismissed,  and  all  records  of  such  [count or counts] conviction or
    28  convictions and[, in the absence of any other valid count or counts, all
    29  records of such action or proceeding]  related  to  such  conviction  or
    30  convictions shall be expunged, as described in subdivision forty-five of
    31  section  1.20 of this chapter, and the matter shall be considered termi-
    32  nated in favor of the accused and deemed a nullity, having been rendered
    33  by this paragraph legally invalid.  All  such  records  for  an  offense
    34  described  in  this  paragraph  where  the  conviction was entered on or
    35  before the effective date of the  chapter  of  the  laws  of  2019  that
    36  amended  this paragraph shall be expunged promptly and, in any event, no
    37  later than one year after such effective date.
    38    § 4. Subparagraph (i) of paragraph (b) of  subdivision  5  of  section
    39  160.50  of the criminal procedure law, as added by a chapter of the laws
    40  of 2019, amending the penal law and the criminal procedure law  relating
    41  to  vacating records for certain proceedings, as proposed in legislative
    42  bills numbers S. 6579-A and A. 8420-A, is amended to read as follows:
    43    (i) the chief administrator of the courts shall  promptly  notify  the
    44  commissioner  of the division of criminal justice services and the heads
    45  of all appropriate police departments, district attorney's  offices  and
    46  other  law  enforcement  agencies  of all [counts] convictions that have
    47  been vacated and dismissed pursuant to paragraph (a) of this subdivision
    48  and that[, in the absence of any  other  valid  count  or  counts,]  all
    49  records [of such action or proceeding] related to such convictions shall
    50  be  expunged  and  the matter shall be considered terminated in favor of
    51  the accused and deemed a nullity, having been rendered legally  invalid.
    52  Upon receipt of notification of such vacatur, dismissal and expungement,
    53  all   records   relating   to  such  [count  or  counts]  conviction  or
    54  convictions, or the criminal action or proceeding, as the case  may  be,
    55  shall  be  marked as expunged by conspicuously indicating on the face of
    56  the record and on each page or at the beginning of the digitized file of
        S. 6614                             3
 
     1  the record that the record has been designated  as  expunged.  Upon  the
     2  written  request of the individual whose case has been expunged or their
     3  designated agent, such records shall  be  destroyed.  Such  records  and
     4  papers  shall not be made available to any person, except the individual
     5  whose case has been expunged or such person's designated agent; and
     6    § 5. This act shall take effect on the  same  date  and  in  the  same
     7  manner  as a chapter of the laws of 2019, amending the penal law and the
     8  criminal  procedure  law  relating  to  vacating  records  for   certain
     9  proceedings,  as  proposed in legislative bills numbers S. 6579-A and A.
    10  8420-A, takes effect.