S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                        4026--A
                              2013-2014 Regular Sessions
                                 I N  A S S E M B L Y
                                   January 30, 2013
                                      ___________
       Introduced by M. of A. LENTOL -- Multi-Sponsored by -- M. of A. FARRELL,
         GOTTFRIED,  HEVESI, HOOPER, LAVINE, MAISEL, O'DONNELL, ORTIZ, PEOPLES-
         STOKES, PERRY, PRETLOW, ROBINSON, SCARBOROUGH, SCHIMEL, TITUS --  read
         once  and  referred to the Committee on Codes -- committee discharged,
         bill amended, ordered reprinted as amended  and  recommitted  to  said
         committee
       AN  ACT  to  amend  the criminal procedure law and the executive law, in
         relation to permitting the sealing of records  of  certain  nonviolent
         misdemeanor or non-sexual misdemeanor offenses
         THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section 1. This act shall be known and may be  cited  as  the  "second
    2  chance for ex-offenders act".
    3    S  2.  The  criminal  procedure law is amended by adding a new section
    4  160.65 to read as follows:
    5  S 160.65 CONDITIONAL SEALING OF CERTAIN MISDEMEANOR OFFENSES.
    6    1. FOR THE PURPOSES OF THIS SECTION, THE TERM  "ELIGIBLE  MISDEMEANOR"
    7  SHALL  BE  A MISDEMEANOR OFFENSE DEFINED IN THE PENAL LAW, PROVIDED THAT
    8  AN ELIGIBLE MISDEMEANOR SHALL NOT INCLUDE ANY  SEX  OFFENSE  AS  DEFINED
    9  UNDER  SUBDIVISION  TWO  OF  SECTION  ONE  HUNDRED  SIXTY-EIGHT-A OF THE
   10  CORRECTION LAW.
   11    2. A PERSON HAVING A CONVICTION FOR NO MORE THAN  THREE  MISDEMEANORS,
   12  WHO  DOES  NOT  STAND CONVICTED OF ANY FELONY, OR WHO IS NOT REQUIRED TO
   13  MAINTAIN REGISTRATION UNDER ARTICLE SIX-C OF  THE  CORRECTION  LAW,  MAY
   14  PETITION  THE COURT TO CONDITIONALLY SEAL UP TO THREE ELIGIBLE MISDEMEA-
   15  NORS WHEN:
   16    (A) AT LEAST FIVE YEARS HAVE PASSED SINCE THE COMPLETION OF A SENTENCE
   17  ON AN ELIGIBLE MISDEMEANOR; AND
   18    (B) SUCH PERSON HAS NOT BEEN CONVICTED OF AN OFFENSE DURING  THE  LAST
   19  FIVE YEARS AND IS NOT THE SUBJECT OF AN UNDISPOSED ARREST.
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD00755-02-3
       A. 4026--A                          2
    1    3. THE PETITION AUTHORIZED BY THIS SECTION SHALL BE FILED IN THE COURT
    2  OF  RECORD  THAT LAST IMPOSED A SENTENCE UPON PETITIONER FOR AN ELIGIBLE
    3  MISDEMEANOR. ON THE DEFENDANT'S MOTION, THE COURT  MAY  ORDER  THAT  ALL
    4  OFFICIAL  RECORDS  AND  PAPERS  RELATING  TO THE ARREST, PROSECUTION AND
    5  CONVICTION  RECORDS  FOR  NO  MORE  THAN  THREE OF THE DEFENDANT'S PRIOR
    6  ELIGIBLE MISDEMEANORS BE CONDITIONALLY SEALED.  THE COURT MAY ONLY  SEAL
    7  THE  RECORDS  OF  THE  DEFENDANT'S ARRESTS, PROSECUTIONS AND CONVICTIONS
    8  WHEN:
    9    (A) THE SENTENCING COURT HAS REQUESTED AND RECEIVED FROM THE  DIVISION
   10  OF  CRIMINAL  JUSTICE  SERVICES OR THE FEDERAL BUREAU OF INVESTIGATION A
   11  FINGERPRINT BASED CRIMINAL HISTORY RECORD OF  THE  DEFENDANT,  INCLUDING
   12  ANY  SEALED  OR SUPPRESSED INFORMATION. THE DIVISION OF CRIMINAL JUSTICE
   13  SERVICES SHALL ALSO INCLUDE A CRIMINAL HISTORY REPORT, IF ANY, FROM  THE
   14  FEDERAL  BUREAU OF INVESTIGATION REGARDING ANY CRIMINAL HISTORY INFORMA-
   15  TION THAT OCCURRED  IN  OTHER  JURISDICTIONS.  THE  DIVISION  IS  HEREBY
   16  AUTHORIZED TO RECEIVE SUCH INFORMATION FROM THE FEDERAL BUREAU OF INVES-
   17  TIGATION  FOR  THIS  PURPOSE.  THE PARTIES SHALL BE PERMITTED TO EXAMINE
   18  THESE RECORDS;
   19    (B) THE DEFENDANT OR COURT HAS IDENTIFIED THE  MISDEMEANOR  CONVICTION
   20  OR CONVICTIONS FOR WHICH RELIEF MAY BE GRANTED;
   21    (C) THE COURT HAS RECEIVED DOCUMENTATION THAT THE SENTENCES IMPOSED ON
   22  THE  ELIGIBLE MISDEMEANOR CONVICTIONS HAVE BEEN COMPLETED, OR IF NO SUCH
   23  DOCUMENTATION IS  REASONABLY  AVAILABLE,  A  SWORN  AFFIDAVIT  THAT  THE
   24  SENTENCES IMPOSED ON THE PRIOR MISDEMEANORS HAVE BEEN COMPLETED; AND
   25    (D)  THE COURT HAS NOTIFIED THE DISTRICT ATTORNEY OF EACH JURISDICTION
   26  IN WHICH THE DEFENDANT HAS BEEN CONVICTED OF AN OFFENSE WITH RESPECT  TO
   27  WHICH  SEALING  IS  SOUGHT,  AND  THE COURT OR COURTS OF RECORD FOR SUCH
   28  OFFENSES, THAT THE COURT IS  CONSIDERING  SEALING  THE  RECORDS  OF  THE
   29  DEFENDANT'S ELIGIBLE MISDEMEANOR CONVICTIONS. BOTH THE DISTRICT ATTORNEY
   30  AND  THE  COURT SHALL BE GIVEN A REASONABLE OPPORTUNITY, WHICH SHALL NOT
   31  BE LESS THAN THIRTY DAYS, IN WHICH TO COMMENT AND  SUBMIT  MATERIALS  TO
   32  AID  THE COURT IN MAKING SUCH A DETERMINATION. WHEN THE COURT NOTIFIES A
   33  DISTRICT ATTORNEY OF A SEALING APPLICATION, THE DISTRICT ATTORNEY  SHALL
   34  PROVIDE  NOTICE  TO  THE  VICTIM,  IF ANY, OF THE SEALING APPLICATION BY
   35  MAILING WRITTEN NOTICE TO THE VICTIM'S LAST-KNOWN ADDRESS. FOR  PURPOSES
   36  OF  THIS SECTION "VICTIM" MEANS ANY PERSON WHO HAS SUSTAINED PHYSICAL OR
   37  FINANCIAL INJURY TO PERSON OR TO PROPERTY AS  A  DIRECT  RESULT  OF  THE
   38  MISDEMEANOR CRIME OR MISDEMEANOR CRIMES FOR WHICH SEALING IS APPLIED.
   39    4. AT THE REQUEST OF THE DEFENDANT OR THE DISTRICT ATTORNEY OF A COUN-
   40  TY  IN  WHICH THE DEFENDANT COMMITTED A CRIME THAT IS THE SUBJECT OF THE
   41  SEALING APPLICATION, THE COURT MAY CONDUCT A  HEARING  TO  CONSIDER  AND
   42  REVIEW  ANY RELEVANT EVIDENCE OFFERED BY EITHER PARTY THAT WOULD AID THE
   43  COURT IN ITS DECISION WHETHER TO SEAL THE  RECORDS  OF  THE  DEFENDANT'S
   44  ARRESTS,  PROSECUTIONS AND CONVICTIONS.  IN MAKING SUCH A DETERMINATION,
   45  THE COURT SHALL CONSIDER ANY RELEVANT FACTORS, INCLUDING BUT NOT LIMITED
   46  TO:
   47    (A) THE CIRCUMSTANCES AND SERIOUSNESS OF THE OFFENSE OR OFFENSES  THAT
   48  RESULTED IN THE CONVICTION OR CONVICTIONS;
   49    (B) THE CHARACTER OF THE DEFENDANT, INCLUDING WHAT STEPS THE PETITION-
   50  ER  HAS  TAKEN  SINCE  THE TIME OF THE OFFENSE TOWARD PERSONAL REHABILI-
   51  TATION, INCLUDING TREATMENT, WORK, SCHOOL,  OR  OTHER  PERSONAL  HISTORY
   52  THAT DEMONSTRATES REHABILITATION;
   53    (C) THE DEFENDANT'S CRIMINAL HISTORY;
   54    (D)  THE  IMPACT  OF  SEALING  THE DEFENDANT'S RECORDS UPON HIS OR HER
   55  REHABILITATION AND HIS OR HER  SUCCESSFUL  AND  PRODUCTIVE  REENTRY  AND
   56  REINTEGRATION INTO SOCIETY, AND ON PUBLIC SAFETY; AND
       A. 4026--A                          3
    1    (E) ANY STATEMENTS MADE BY THE VICTIM OF THE OFFENSE WHERE THERE IS IN
    2  FACT A VICTIM OF THE CRIME.
    3    5.  AFTER  A  COURT  DECLARES ITS WILLINGNESS TO GRANT THE DEFENDANT'S
    4  REQUEST FOR CONDITIONAL SEALING PURSUANT TO THIS SECTION, BUT BEFORE THE
    5  COURT ORDERS SEALING PURSUANT TO THIS SECTION, THE DEFENDANT SHALL PAY A
    6  MANDATORY CONDITIONAL SEALING FEE. THE MANDATORY CONDITIONAL SEALING FEE
    7  WILL BE A FEE OF EIGHTY DOLLARS,  HOWEVER,  SUCH  FILING  FEE  SHALL  BE
    8  WAIVED  IN CASES OF INDIGENCE. THE MANDATORY FILING FEE SHALL BE PAID TO
    9  THE CLERK OF THE COURT OR  ADMINISTRATIVE  TRIBUNAL  THAT  RENDERED  THE
   10  CONVICTION.  WITHIN THE FIRST TEN DAYS OF THE MONTH FOLLOWING COLLECTION
   11  OF THE MANDATORY FILING FEE, THE COLLECTING AUTHORITY IF IT IS AN ADMIN-
   12  ISTRATIVE TRIBUNAL, OR A TOWN OR VILLAGE JUSTICE COURT, SHALL  THEN  PAY
   13  SUCH  MONEY TO THE STATE COMPTROLLER WHO SHALL DEPOSIT SUCH MONEY IN THE
   14  STATE TREASURY PURSUANT TO SECTION ONE HUNDRED TWENTY-ONE OF  THE  STATE
   15  FINANCE  LAW  TO THE CREDIT OF THE INDIGENT LEGAL SERVICES FUND. IF SUCH
   16  COLLECTING AUTHORITY IS ANY OTHER COURT OF THE UNIFIED COURT SYSTEM,  IT
   17  SHALL,  WITHIN SUCH PERIOD, PAY SUCH MONEY ATTRIBUTABLE TO THE MANDATORY
   18  FILING FEE TO THE STATE COMMISSIONER OF  TAXATION  AND  FINANCE  TO  THE
   19  CREDIT  OF THE INDIGENT LEGAL SERVICES FUND ESTABLISHED BY SECTION NINE-
   20  TY-EIGHT-B OF THE STATE FINANCE LAW.
   21    6. WHEN A COURT ORDERS SEALING PURSUANT TO THIS SECTION, ALL  OFFICIAL
   22  RECORDS   AND   PAPERS   RELATING  TO  THE  ARRESTS,  PROSECUTIONS,  AND
   23  CONVICTIONS, INCLUDING ALL DUPLICATES AND COPIES THEREOF, ON  FILE  WITH
   24  THE  DIVISION  OF CRIMINAL JUSTICE SERVICES OR ANY COURT SHALL BE SEALED
   25  AND NOT MADE AVAILABLE TO  ANY  PERSON  OR  PUBLIC  OR  PRIVATE  AGENCY;
   26  PROVIDED,  HOWEVER,  THE  DIVISION  SHALL RETAIN ANY FINGERPRINTS, PALM-
   27  PRINTS, PHOTOGRAPHS, OR DIGITAL IMAGES OF THE SAME.
   28    7. WHEN THE COURT ORDERS SEALING PURSUANT TO THIS SECTION,  THE  CLERK
   29  OF  SUCH COURT SHALL IMMEDIATELY NOTIFY THE COMMISSIONER OF THE DIVISION
   30  OF CRIMINAL JUSTICE SERVICES, AND ANY COURT THAT SENTENCED THE DEFENDANT
   31  FOR AN OFFENSE  WHICH  HAS  BEEN  CONDITIONALLY  SEALED,  REGARDING  THE
   32  RECORDS THAT SHALL BE SEALED PURSUANT TO THIS SECTION.
   33    8. RECORDS SEALED PURSUANT TO THIS SUBDIVISION SHALL BE MADE AVAILABLE
   34  TO:
   35    (A) THE DEFENDANT OR THE DEFENDANT'S DESIGNATED AGENT;
   36    (B)  QUALIFIED  AGENCIES,  AS  DEFINED  IN SUBDIVISION NINE OF SECTION
   37  EIGHT HUNDRED THIRTY-FIVE OF THE EXECUTIVE LAW, AND  FEDERAL  AND  STATE
   38  LAW  ENFORCEMENT  AGENCIES,  WHEN  ACTING  WITHIN THE SCOPE OF THEIR LAW
   39  ENFORCEMENT DUTIES;
   40    (C) ANY STATE OR LOCAL OFFICER OR AGENCY WITH RESPONSIBILITY  FOR  THE
   41  ISSUANCE  OF LICENSES TO POSSESS GUNS, WHEN THE PERSON HAS MADE APPLICA-
   42  TION FOR SUCH A LICENSE; OR
   43    (D) ANY PROSPECTIVE EMPLOYER OF A POLICE OFFICER OR PEACE  OFFICER  AS
   44  THOSE  TERMS ARE DEFINED IN SUBDIVISIONS THIRTY-THREE AND THIRTY-FOUR OF
   45  SECTION 1.20 OF THIS CHAPTER, IN RELATION TO AN APPLICATION FOR  EMPLOY-
   46  MENT AS A POLICE OFFICER OR PEACE OFFICER; PROVIDED, HOWEVER, THAT EVERY
   47  PERSON  WHO  IS AN APPLICANT FOR THE POSITION OF POLICE OFFICER OR PEACE
   48  OFFICER SHALL BE FURNISHED WITH A COPY OF  ALL  RECORDS  OBTAINED  UNDER
   49  THIS PARAGRAPH AND AFFORDED AN OPPORTUNITY TO MAKE AN EXPLANATION THERE-
   50  TO.
   51    9.  THE  COURT  SHALL NOT SEAL THE DEFENDANT'S RECORD PURSUANT TO THIS
   52  SECTION WHILE ANY CHARGED OFFENSE IS PENDING.
   53    10. IF, SUBSEQUENT TO THE SEALING OF RECORDS PURSUANT TO THIS SUBDIVI-
   54  SION, THE PERSON WHO IS THE SUBJECT OF SUCH RECORDS IS ARRESTED  FOR  OR
   55  FORMALLY  CHARGED  WITH  ANY MISDEMEANOR OR FELONY OFFENSE, SUCH RECORDS
   56  SHALL BE UNSEALED IMMEDIATELY AND REMAIN  UNSEALED;  PROVIDED,  HOWEVER,
       A. 4026--A                          4
    1  THAT  IF  SUCH NEW MISDEMEANOR OR FELONY ARREST RESULTS IN A TERMINATION
    2  IN FAVOR OF THE ACCUSED AS  DEFINED  IN  SUBDIVISION  THREE  OF  SECTION
    3  160.50  OF  THIS  ARTICLE OR BY CONVICTION FOR A NON-CRIMINAL OFFENSE AS
    4  DESCRIBED IN SECTION 160.55 OF THIS ARTICLE, SUCH UNSEALED RECORDS SHALL
    5  BE CONDITIONALLY SEALED PURSUANT TO THIS SECTION.
    6    S 3. Subdivision 16 of section 296 of the executive law, as separately
    7  amended  by section 3 of part N and section 14 of part AAA of chapter 56
    8  of the laws of 2009, is amended to read as follows:
    9    16. It shall be an unlawful discriminatory  practice,  unless  specif-
   10  ically required or permitted by statute, for any person, agency, bureau,
   11  corporation or association, including the state and any political subdi-
   12  vision thereof, to make any inquiry about, whether in any form of appli-
   13  cation  or  otherwise,  or  to  act  upon  adversely  to  the individual
   14  involved, any arrest or criminal accusation of such individual not  then
   15  pending  against  that individual which was followed by a termination of
   16  that criminal action or proceeding  in  favor  of  such  individual,  as
   17  defined  in  subdivision two of section 160.50 of the criminal procedure
   18  law, or by a youthful offender adjudication, as defined  in  subdivision
   19  one  of section 720.35 of the criminal procedure law, or by a conviction
   20  for a violation sealed pursuant to section 160.55 of the criminal proce-
   21  dure law or by a conviction which is sealed pursuant to  section  160.58
   22  of the criminal procedure law, OR BY A CONVICTION WHICH IS SEALED PURSU-
   23  ANT  TO SECTION 160.65 OF THE CRIMINAL PROCEDURE LAW, in connection with
   24  the licensing, employment or providing of credit or  insurance  to  such
   25  individual;  provided,  further,  that  no  person  shall be required to
   26  divulge information pertaining to any arrest or criminal  accusation  of
   27  such  individual  not  then  pending  against  that individual which was
   28  followed by a termination of that criminal action or proceeding in favor
   29  of such individual, as defined in subdivision two of section  160.50  of
   30  the  criminal  procedure law, or by a youthful offender adjudication, as
   31  defined in subdivision one of section 720.35 of the  criminal  procedure
   32  law,  or  by  a  conviction  for  a violation sealed pursuant to section
   33  160.55 of the criminal procedure law, or by a conviction which is sealed
   34  pursuant to section 160.58 of  the  criminal  procedure  law,  OR  BY  A
   35  CONVICTION  WHICH  IS  SEALED PURSUANT TO SECTION 160.65 OF THE CRIMINAL
   36  PROCEDURE LAW. The provisions of this subdivision shall not apply to the
   37  licensing activities of governmental bodies in  relation  to  the  regu-
   38  lation  of  guns, firearms and other deadly weapons or in relation to an
   39  application for employment as a police officer or peace officer as those
   40  terms are  defined  in  subdivisions  thirty-three  and  thirty-four  of
   41  section  1.20  of  the criminal procedure law; provided further that the
   42  provisions of this subdivision shall not apply  to  an  application  for
   43  employment  or  membership in any law enforcement agency with respect to
   44  any arrest or criminal accusation  which  was  followed  by  a  youthful
   45  offender  adjudication,  as defined in subdivision one of section 720.35
   46  of the criminal procedure law, or by a conviction for a violation sealed
   47  pursuant to section 160.55 of  the  criminal  procedure  law,  or  by  a
   48  conviction  which  is  sealed pursuant to section 160.58 of the criminal
   49  procedure law, OR BY A CONVICTION WHICH IS SEALED  PURSUANT  TO  SECTION
   50  160.65 OF THE CRIMINAL PROCEDURE LAW.
   51    S 4. This act shall take effect on the one hundred eightieth day after
   52  it  shall have become a law and shall apply to all convictions occurring
   53  prior to, on, and after such date.