S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                          134
                              2013-2014 Regular Sessions
                                   I N  S E N A T E
                                      (PREFILED)
                                    January 9, 2013
                                      ___________
       Introduced  by  Sen. SAMPSON -- read twice and ordered printed, and when
         printed to be committed to the Committee on Codes
       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 MEAN A MISDEMEANOR OFFENSE DEFINED IN
    9  ARTICLE ONE HUNDRED TWENTY, ONE HUNDRED THIRTY, ONE HUNDRED THIRTY-FIVE,
   10  ONE HUNDRED FIFTY, TWO HUNDRED THIRTY-FIVE, TWO HUNDRED FORTY-FIVE,  TWO
   11  HUNDRED  SIXTY, TWO HUNDRED SIXTY-THREE, TWO HUNDRED SIXTY-FIVE OR ARTI-
   12  CLE FOUR HUNDRED OF THE PENAL LAW. AN  ELIGIBLE  MISDEMEANOR  SHALL  NOT
   13  INCLUDE  ANY  ONE OR MORE OF THE FOLLOWING: KILLING OR INJURING A POLICE
   14  ANIMAL AS DEFINED IN SECTION 195.06, HARMING AN ANIMAL TRAINED TO AID  A
   15  PERSON  WITH  A  DISABILITY  IN  THE SECOND DEGREE AS DEFINED IN SECTION
   16  195.11, HARMING AN ANIMAL TRAINED TO AID A PERSON WITH A  DISABILITY  IN
   17  THE FIRST DEGREE AS DEFINED IN SECTION 195.12, PROMOTING PROSTITUTION IN
   18  THE  FOURTH  DEGREE  AS  DEFINED  IN  SECTION 230.20, RIOT IN THE SECOND
   19  DEGREE AS DEFINED IN SECTION 240.05, INCITING  TO  RIOT  AS  DEFINED  IN
   20  SECTION 240.08, AGGRAVATED HARASSMENT IN THE SECOND DEGREE AS DEFINED IN
   21  SUBDIVISION  THREE  OF SECTION 240.30, CRIMINAL INTERFERENCE WITH HEALTH
   22  CARE SERVICES OR RELIGIOUS WORSHIP IN THE SECOND DEGREE  AS  DEFINED  IN
   23  SECTION 240.70, HARMING A SERVICE ANIMAL IN THE SECOND DEGREE AS DEFINED
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD00755-01-3
       S. 134                              2
    1  IN  SECTION  242.10,  DISSEMINATION OF AN UNLAWFUL SURVEILLANCE IMAGE IN
    2  THE SECOND DEGREE AS DEFINED IN SECTION 250.55, OR ANY SPECIFIED OFFENSE
    3  SUBJECT TO THE PROVISION RELATING TO HATE CRIMES AS DEFINED  IN  SECTION
    4  485.05 OF THE PENAL LAW. ADDITIONALLY, AN ELIGIBLE MISDEMEANOR SHALL NOT
    5  INCLUDE  CRIMINAL SOLICITATION, CONSPIRACY, ATTEMPT, OR CRIMINAL FACILI-
    6  TATION TO COMMIT ANY VIOLENT FELONY OFFENSE AS DEFINED IN SECTION  70.02
    7  OF THE PENAL LAW, OR ANY SEX OFFENSE AS DEFINED UNDER SUBDIVISION TWO OF
    8  SECTION ONE HUNDRED SIXTY-EIGHT-A OF THE CORRECTION LAW.
    9    2.  A  PERSON HAVING A CONVICTION FOR NO MORE THAN THREE MISDEMEANORS,
   10  WHO DOES NOT STAND CONVICTED OF ANY FELONY, OR WHO IS  NOT  REQUIRED  TO
   11  MAINTAIN  REGISTRATION  UNDER  ARTICLE  SIX-C OF THE CORRECTION LAW, MAY
   12  PETITION THE COURT TO CONDITIONALLY SEAL UP TO THREE ELIGIBLE  MISDEMEA-
   13  NORS WHEN:
   14    (A) AT LEAST FIVE YEARS HAVE PASSED SINCE THE COMPLETION OF A SENTENCE
   15  ON AN ELIGIBLE MISDEMEANOR; AND
   16    (B)  SUCH  PERSON HAS NOT BEEN CONVICTED OF AN OFFENSE DURING THE LAST
   17  FIVE YEARS AND IS NOT THE SUBJECT OF AN UNDISPOSED ARREST.
   18    3. THE PETITION AUTHORIZED BY THIS SECTION SHALL BE FILED IN THE COURT
   19  OF RECORD THAT LAST IMPOSED A SENTENCE UPON PETITIONER FOR  AN  ELIGIBLE
   20  MISDEMEANOR.  ON  THE  DEFENDANT'S  MOTION, THE COURT MAY ORDER THAT ALL
   21  OFFICIAL RECORDS AND PAPERS RELATING  TO  THE  ARREST,  PROSECUTION  AND
   22  CONVICTION  RECORDS  FOR  NO  MORE  THAN  THREE OF THE DEFENDANT'S PRIOR
   23  ELIGIBLE MISDEMEANORS BE CONDITIONALLY SEALED.  THE COURT MAY ONLY  SEAL
   24  THE  RECORDS  OF  THE  DEFENDANT'S ARRESTS, PROSECUTIONS AND CONVICTIONS
   25  WHEN:
   26    (A) THE SENTENCING COURT HAS REQUESTED AND RECEIVED FROM THE  DIVISION
   27  OF  CRIMINAL  JUSTICE  SERVICES OR THE FEDERAL BUREAU OF INVESTIGATION A
   28  FINGERPRINT BASED CRIMINAL HISTORY RECORD OF  THE  DEFENDANT,  INCLUDING
   29  ANY  SEALED  OR SUPPRESSED INFORMATION. THE DIVISION OF CRIMINAL JUSTICE
   30  SERVICES SHALL ALSO INCLUDE A CRIMINAL HISTORY REPORT, IF ANY, FROM  THE
   31  FEDERAL  BUREAU OF INVESTIGATION REGARDING ANY CRIMINAL HISTORY INFORMA-
   32  TION THAT OCCURRED  IN  OTHER  JURISDICTIONS.  THE  DIVISION  IS  HEREBY
   33  AUTHORIZED TO RECEIVE SUCH INFORMATION FROM THE FEDERAL BUREAU OF INVES-
   34  TIGATION  FOR  THIS  PURPOSE.  THE PARTIES SHALL BE PERMITTED TO EXAMINE
   35  THESE RECORDS;
   36    (B) THE DEFENDANT OR COURT HAS IDENTIFIED THE  MISDEMEANOR  CONVICTION
   37  OR CONVICTIONS FOR WHICH RELIEF MAY BE GRANTED;
   38    (C) THE COURT HAS RECEIVED DOCUMENTATION THAT THE SENTENCES IMPOSED ON
   39  THE  ELIGIBLE MISDEMEANOR CONVICTIONS HAVE BEEN COMPLETED, OR IF NO SUCH
   40  DOCUMENTATION IS  REASONABLY  AVAILABLE,  A  SWORN  AFFIDAVIT  THAT  THE
   41  SENTENCES IMPOSED ON THE PRIOR MISDEMEANORS HAVE BEEN COMPLETED; AND
   42    (D)  THE COURT HAS NOTIFIED THE DISTRICT ATTORNEY OF EACH JURISDICTION
   43  IN WHICH THE DEFENDANT HAS BEEN CONVICTED OF AN OFFENSE WITH RESPECT  TO
   44  WHICH  SEALING  IS  SOUGHT,  AND  THE COURT OR COURTS OF RECORD FOR SUCH
   45  OFFENSES, THAT THE COURT IS  CONSIDERING  SEALING  THE  RECORDS  OF  THE
   46  DEFENDANT'S ELIGIBLE MISDEMEANOR CONVICTIONS. BOTH THE DISTRICT ATTORNEY
   47  AND  THE  COURT SHALL BE GIVEN A REASONABLE OPPORTUNITY, WHICH SHALL NOT
   48  BE LESS THAN THIRTY DAYS, IN WHICH TO COMMENT AND  SUBMIT  MATERIALS  TO
   49  AID  THE COURT IN MAKING SUCH A DETERMINATION. WHEN THE COURT NOTIFIES A
   50  DISTRICT ATTORNEY OF A SEALING APPLICATION, THE DISTRICT ATTORNEY  SHALL
   51  PROVIDE  NOTICE  TO  THE  VICTIM,  IF ANY, OF THE SEALING APPLICATION BY
   52  MAILING WRITTEN NOTICE TO THE VICTIM'S LAST-KNOWN ADDRESS. FOR  PURPOSES
   53  OF  THIS SECTION "VICTIM" MEANS ANY PERSON WHO HAS SUSTAINED PHYSICAL OR
   54  FINANCIAL INJURY TO PERSON OR TO PROPERTY AS  A  DIRECT  RESULT  OF  THE
   55  MISDEMEANOR CRIME OR MISDEMEANOR CRIMES FOR WHICH SEALING IS APPLIED.
       S. 134                              3
    1    4. AT THE REQUEST OF THE DEFENDANT OR THE DISTRICT ATTORNEY OF A COUN-
    2  TY  IN  WHICH THE DEFENDANT COMMITTED A CRIME THAT IS THE SUBJECT OF THE
    3  SEALING APPLICATION, THE COURT MAY CONDUCT A  HEARING  TO  CONSIDER  AND
    4  REVIEW  ANY RELEVANT EVIDENCE OFFERED BY EITHER PARTY THAT WOULD AID THE
    5  COURT  IN  ITS  DECISION  WHETHER TO SEAL THE RECORDS OF THE DEFENDANT'S
    6  ARRESTS, PROSECUTIONS AND CONVICTIONS.  IN MAKING SUCH A  DETERMINATION,
    7  THE COURT SHALL CONSIDER ANY RELEVANT FACTORS, INCLUDING BUT NOT LIMITED
    8  TO:
    9    (A)  THE CIRCUMSTANCES AND SERIOUSNESS OF THE OFFENSE OR OFFENSES THAT
   10  RESULTED IN THE CONVICTION OR CONVICTIONS;
   11    (B) THE CHARACTER OF THE DEFENDANT, INCLUDING WHAT STEPS THE PETITION-
   12  ER HAS TAKEN SINCE THE TIME OF THE  OFFENSE  TOWARD  PERSONAL  REHABILI-
   13  TATION,  INCLUDING  TREATMENT,  WORK,  SCHOOL, OR OTHER PERSONAL HISTORY
   14  THAT DEMONSTRATES REHABILITATION;
   15    (C) THE DEFENDANT'S CRIMINAL HISTORY;
   16    (D) THE IMPACT OF SEALING THE DEFENDANT'S  RECORDS  UPON  HIS  OR  HER
   17  REHABILITATION  AND  HIS  OR  HER  SUCCESSFUL AND PRODUCTIVE REENTRY AND
   18  REINTEGRATION INTO SOCIETY, AND ON PUBLIC SAFETY; AND
   19    (E) ANY STATEMENTS MADE BY THE VICTIM OF THE OFFENSE WHERE THERE IS IN
   20  FACT A VICTIM OF THE CRIME.
   21    5. AFTER A COURT DECLARES ITS WILLINGNESS  TO  GRANT  THE  DEFENDANT'S
   22  REQUEST FOR CONDITIONAL SEALING PURSUANT TO THIS SECTION, BUT BEFORE THE
   23  COURT ORDERS SEALING PURSUANT TO THIS SECTION, THE DEFENDANT SHALL PAY A
   24  MANDATORY CONDITIONAL SEALING FEE. THE MANDATORY CONDITIONAL SEALING FEE
   25  WILL  BE  A  FEE  OF  EIGHTY  DOLLARS, HOWEVER, SUCH FILING FEE SHALL BE
   26  WAIVED IN CASES OF INDIGENCE. THE MANDATORY FILING FEE SHALL BE PAID  TO
   27  THE  CLERK  OF  THE  COURT  OR ADMINISTRATIVE TRIBUNAL THAT RENDERED THE
   28  CONVICTION. WITHIN THE FIRST TEN DAYS OF THE MONTH FOLLOWING  COLLECTION
   29  OF THE MANDATORY FILING FEE, THE COLLECTING AUTHORITY IF IT IS AN ADMIN-
   30  ISTRATIVE  TRIBUNAL,  OR A TOWN OR VILLAGE JUSTICE COURT, SHALL THEN PAY
   31  SUCH MONEY TO THE STATE COMPTROLLER WHO SHALL DEPOSIT SUCH MONEY IN  THE
   32  STATE  TREASURY  PURSUANT TO SECTION ONE HUNDRED TWENTY-ONE OF THE STATE
   33  FINANCE LAW TO THE CREDIT OF THE INDIGENT LEGAL SERVICES FUND.  IF  SUCH
   34  COLLECTING  AUTHORITY IS ANY OTHER COURT OF THE UNIFIED COURT SYSTEM, IT
   35  SHALL, WITHIN SUCH PERIOD, PAY SUCH MONEY ATTRIBUTABLE TO THE  MANDATORY
   36  FILING  FEE  TO  THE  STATE  COMMISSIONER OF TAXATION AND FINANCE TO THE
   37  CREDIT OF THE INDIGENT LEGAL SERVICES FUND ESTABLISHED BY SECTION  NINE-
   38  TY-EIGHT-B OF THE STATE FINANCE LAW.
   39    6.  WHEN A COURT ORDERS SEALING PURSUANT TO THIS SECTION, ALL OFFICIAL
   40  RECORDS  AND  PAPERS  RELATING  TO  THE   ARRESTS,   PROSECUTIONS,   AND
   41  CONVICTIONS,  INCLUDING  ALL DUPLICATES AND COPIES THEREOF, ON FILE WITH
   42  THE DIVISION OF CRIMINAL JUSTICE SERVICES OR ANY COURT SHALL  BE  SEALED
   43  AND  NOT  MADE  AVAILABLE  TO  ANY  PERSON  OR PUBLIC OR PRIVATE AGENCY;
   44  PROVIDED, HOWEVER, THE DIVISION SHALL  RETAIN  ANY  FINGERPRINTS,  PALM-
   45  PRINTS, PHOTOGRAPHS, OR DIGITAL IMAGES OF THE SAME.
   46    7.  WHEN  THE COURT ORDERS SEALING PURSUANT TO THIS SECTION, THE CLERK
   47  OF SUCH COURT SHALL IMMEDIATELY NOTIFY THE COMMISSIONER OF THE  DIVISION
   48  OF CRIMINAL JUSTICE SERVICES, AND ANY COURT THAT SENTENCED THE DEFENDANT
   49  FOR  AN  OFFENSE  WHICH  HAS  BEEN  CONDITIONALLY  SEALED, REGARDING THE
   50  RECORDS THAT SHALL BE SEALED PURSUANT TO THIS SECTION.
   51    8. RECORDS SEALED PURSUANT TO THIS SUBDIVISION SHALL BE MADE AVAILABLE
   52  TO:
   53    (A) THE DEFENDANT OR THE DEFENDANT'S DESIGNATED AGENT;
   54    (B) QUALIFIED AGENCIES, AS DEFINED  IN  SUBDIVISION  NINE  OF  SECTION
   55  EIGHT  HUNDRED  THIRTY-FIVE  OF THE EXECUTIVE LAW, AND FEDERAL AND STATE
       S. 134                              4
    1  LAW ENFORCEMENT AGENCIES, WHEN ACTING WITHIN  THE  SCOPE  OF  THEIR  LAW
    2  ENFORCEMENT DUTIES;
    3    (C)  ANY  STATE OR LOCAL OFFICER OR AGENCY WITH RESPONSIBILITY FOR THE
    4  ISSUANCE OF LICENSES TO POSSESS GUNS, WHEN THE PERSON HAS MADE  APPLICA-
    5  TION FOR SUCH A LICENSE; OR
    6    (D)  ANY  PROSPECTIVE EMPLOYER OF A POLICE OFFICER OR PEACE OFFICER AS
    7  THOSE TERMS ARE DEFINED IN SUBDIVISIONS THIRTY-THREE AND THIRTY-FOUR  OF
    8  SECTION  1.20 OF THIS CHAPTER, IN RELATION TO AN APPLICATION FOR EMPLOY-
    9  MENT AS A POLICE OFFICER OR PEACE OFFICER; PROVIDED, HOWEVER, THAT EVERY
   10  PERSON WHO IS AN APPLICANT FOR THE POSITION OF POLICE OFFICER  OR  PEACE
   11  OFFICER  SHALL  BE  FURNISHED  WITH A COPY OF ALL RECORDS OBTAINED UNDER
   12  THIS PARAGRAPH AND AFFORDED AN OPPORTUNITY TO MAKE AN EXPLANATION THERE-
   13  TO.
   14    9. THE COURT SHALL NOT SEAL THE DEFENDANT'S RECORD  PURSUANT  TO  THIS
   15  SECTION WHILE ANY CHARGED OFFENSE IS PENDING.
   16    10. IF, SUBSEQUENT TO THE SEALING OF RECORDS PURSUANT TO THIS SUBDIVI-
   17  SION,  THE  PERSON WHO IS THE SUBJECT OF SUCH RECORDS IS ARRESTED FOR OR
   18  FORMALLY CHARGED WITH ANY MISDEMEANOR OR FELONY  OFFENSE,  SUCH  RECORDS
   19  SHALL  BE  UNSEALED  IMMEDIATELY AND REMAIN UNSEALED; PROVIDED, HOWEVER,
   20  THAT IF SUCH NEW MISDEMEANOR OR FELONY ARREST RESULTS IN  A  TERMINATION
   21  IN  FAVOR  OF  THE  ACCUSED  AS  DEFINED IN SUBDIVISION THREE OF SECTION
   22  160.50 OF THIS ARTICLE OR BY CONVICTION FOR A  NON-CRIMINAL  OFFENSE  AS
   23  DESCRIBED IN SECTION 160.55 OF THIS ARTICLE, SUCH UNSEALED RECORDS SHALL
   24  BE CONDITIONALLY SEALED PURSUANT TO THIS SECTION.
   25    S 3. Subdivision 16 of section 296 of the executive law, as separately
   26  amended  by section 3 of part N and section 14 of part AAA of chapter 56
   27  of the laws of 2009, is amended to read as follows:
   28    16. It shall be an unlawful discriminatory  practice,  unless  specif-
   29  ically required or permitted by statute, for any person, agency, bureau,
   30  corporation or association, including the state and any political subdi-
   31  vision thereof, to make any inquiry about, whether in any form of appli-
   32  cation  or  otherwise,  or  to  act  upon  adversely  to  the individual
   33  involved, any arrest or criminal accusation of such individual not  then
   34  pending  against  that individual which was followed by a termination of
   35  that criminal action or proceeding  in  favor  of  such  individual,  as
   36  defined  in  subdivision two of section 160.50 of the criminal procedure
   37  law, or by a youthful offender adjudication, as defined  in  subdivision
   38  one  of section 720.35 of the criminal procedure law, or by a conviction
   39  for a violation sealed pursuant to section 160.55 of the criminal proce-
   40  dure law or by a conviction which is sealed pursuant to  section  160.58
   41  of the criminal procedure law, OR BY A CONVICTION WHICH IS SEALED PURSU-
   42  ANT  TO SECTION 160.65 OF THE CRIMINAL PROCEDURE LAW, in connection with
   43  the licensing, employment or providing of credit or  insurance  to  such
   44  individual;  provided,  further,  that  no  person  shall be required to
   45  divulge information pertaining to any arrest or criminal  accusation  of
   46  such  individual  not  then  pending  against  that individual which was
   47  followed by a termination of that criminal action or proceeding in favor
   48  of such individual, as defined in subdivision two of section  160.50  of
   49  the  criminal  procedure law, or by a youthful offender adjudication, as
   50  defined in subdivision one of section 720.35 of the  criminal  procedure
   51  law,  or  by  a  conviction  for  a violation sealed pursuant to section
   52  160.55 of the criminal procedure law, or by a conviction which is sealed
   53  pursuant to section 160.58 of  the  criminal  procedure  law,  OR  BY  A
   54  CONVICTION  WHICH  IS  SEALED PURSUANT TO SECTION 160.65 OF THE CRIMINAL
   55  PROCEDURE LAW. The provisions of this subdivision shall not apply to the
   56  licensing activities of governmental bodies in  relation  to  the  regu-
       S. 134                              5
    1  lation  of  guns, firearms and other deadly weapons or in relation to an
    2  application for employment as a police officer or peace officer as those
    3  terms are  defined  in  subdivisions  thirty-three  and  thirty-four  of
    4  section  1.20  of  the criminal procedure law; provided further that the
    5  provisions of this subdivision shall not apply  to  an  application  for
    6  employment  or  membership in any law enforcement agency with respect to
    7  any arrest or criminal accusation  which  was  followed  by  a  youthful
    8  offender  adjudication,  as defined in subdivision one of section 720.35
    9  of the criminal procedure law, or by a conviction for a violation sealed
   10  pursuant to section 160.55 of  the  criminal  procedure  law,  or  by  a
   11  conviction  which  is  sealed pursuant to section 160.58 of the criminal
   12  procedure law, OR BY A CONVICTION WHICH IS SEALED  PURSUANT  TO  SECTION
   13  160.65 OF THE CRIMINAL PROCEDURE LAW.
   14    S 4. This act shall take effect on the one hundred eightieth day after
   15  it  shall have become a law and shall apply to all convictions occurring
   16  prior to, on, and after such date.