S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         4071
                              2013-2014 Regular Sessions
                                   I N  S E N A T E
                                     March 7, 2013
                                      ___________
       Introduced  by  Sen.  GOLDEN -- 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 disclosure of arrest and prosecution records of applicants
         for  employment  by police departments and other law enforcement agen-
         cies
         THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section  1.  Paragraph  (d)  of subdivision 1 of section 160.50 of the
    2  criminal procedure law, as amended by section 73 of subpart B of part  C
    3  of chapter 62 of the laws of 2011, is amended to read as follows:
    4    (d)  such  records shall be made available to the person accused or to
    5  such person's designated agent, and shall be made  available  to  (i)  a
    6  prosecutor in any proceeding in which the accused has moved for an order
    7  pursuant  to  section  170.56  or  210.46 of this chapter, or (ii) a law
    8  enforcement agency upon ex parte motion in any superior court,  if  such
    9  agency  demonstrates  to  the  satisfaction  of  the  court that justice
   10  requires that such records be made available to it, or (iii)  any  state
   11  or  local  officer  or  agency  with  responsibility for the issuance of
   12  licenses to possess guns, when the accused has made application for such
   13  a license, or (iv) the New York  state  department  of  corrections  and
   14  community  supervision  when  the  accused is on parole supervision as a
   15  result of conditional release or a parole release  granted  by  the  New
   16  York  state  board of parole, and the arrest which is the subject of the
   17  inquiry is one which occurred while the accused was  under  such  super-
   18  vision  or  (v)  any  prospective  employer of a police officer or peace
   19  officer as those terms are  defined  in  subdivisions  thirty-three  and
   20  thirty-four  of section 1.20 of this chapter, in relation to an applica-
   21  tion for employment as a police  officer  or  peace  officer;  provided,
   22  however,  that  every  person  who  is  an applicant for the position of
   23  police officer or peace officer shall be furnished with a  copy  of  all
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD07250-02-3
       S. 4071                             2
    1  records  obtained  under  this  paragraph and afforded an opportunity to
    2  make an explanation thereto, or (vi) A POLICE DEPARTMENT  OR  OTHER  LAW
    3  ENFORCEMENT  AGENCY, IN RELATION TO AN APPLICATION BY THE PERSON ACCUSED
    4  FOR  EMPLOYMENT  BY  SUCH  AGENCY OR DEPARTMENT; PROVIDED, HOWEVER, THAT
    5  EVERY SUCH PERSON SHALL BE FURNISHED WITH A COPY OF ALL RECORDS OBTAINED
    6  UNDER THIS PARAGRAPH AND AFFORDED AN OPPORTUNITY TO MAKE AN  EXPLANATION
    7  THERETO,  OR  (VII) the probation department responsible for supervision
    8  of the accused when the arrest which is the subject of  the  inquiry  is
    9  one which occurred while the accused was under such supervision; and
   10    S  2. Paragraph (d) of subdivision 1 of section 160.55 of the criminal
   11  procedure law, as amended by section 74 of subpart B of part C of  chap-
   12  ter 62 of the laws of 2011, is amended to read as follows:
   13    (d) the records referred to in paragraph (c) of this subdivision shall
   14  be  made  available to the person accused or to such person's designated
   15  agent, and shall be made available to (i) a prosecutor in any proceeding
   16  in which the accused has moved for an order pursuant to  section  170.56
   17  or  210.46  of  this  chapter,  or (ii) a law enforcement agency upon ex
   18  parte motion in any superior court, if such agency demonstrates  to  the
   19  satisfaction  of  the  court  that justice requires that such records be
   20  made available to it, or (iii) any state or local officer or agency with
   21  responsibility for the issuance of licenses to possess  guns,  when  the
   22  accused  has  made  application for such a license, or (iv) the New York
   23  state department of  corrections  and  community  supervision  when  the
   24  accused  is  under parole supervision as a result of conditional release
   25  or parole release granted by the New York state board of parole and  the
   26  arrest  which  is the subject of the inquiry is one which occurred while
   27  the accused was under such supervision, or (v) the probation  department
   28  responsible  for supervision of the accused when the arrest which is the
   29  subject of the inquiry is one which occurred while the accused was under
   30  such supervision, or (vi) a police agency, probation  department,  sher-
   31  iff's  office,  district  attorney's office, department of correction of
   32  any municipality and parole department, for  law  enforcement  purposes,
   33  upon  arrest  in  instances  in which the individual stands convicted of
   34  harassment in the second degree, as defined in  section  240.26  of  the
   35  penal law, committed against a member of the same family or household as
   36  the  defendant,  as defined in subdivision one of section 530.11 of this
   37  chapter, and determined  pursuant  to  subdivision  eight-a  of  section
   38  170.10 of this title; OR (VII) A POLICE DEPARTMENT OR OTHER LAW ENFORCE-
   39  MENT  AGENCY,  IN  RELATION  TO AN APPLICATION BY THE PERSON ACCUSED FOR
   40  EMPLOYMENT BY SUCH AGENCY OR DEPARTMENT; PROVIDED, HOWEVER,  THAT  EVERY
   41  SUCH PERSON SHALL BE FURNISHED WITH A COPY OF ALL RECORDS OBTAINED UNDER
   42  THIS PARAGRAPH AND AFFORDED AN OPPORTUNITY TO MAKE AN EXPLANATION THERE-
   43  TO; and
   44    S 3. Subdivision 16 of section 296 of the executive law, as separately
   45  amended  by section 3 of part N and section 14 of part AAA of chapter 56
   46  of the laws of 2009, is amended to read as follows:
   47    16. It shall be an unlawful discriminatory  practice,  unless  specif-
   48  ically required or permitted by statute, for any person, agency, bureau,
   49  corporation or association, including the state and any political subdi-
   50  vision thereof, to make any inquiry about, whether in any form of appli-
   51  cation  or  otherwise,  or  to  act  upon  adversely  to  the individual
   52  involved, any arrest or criminal accusation of such individual not  then
   53  pending  against  that individual which was followed by a termination of
   54  that criminal action or proceeding  in  favor  of  such  individual,  as
   55  defined  in  subdivision two of section 160.50 of the criminal procedure
   56  law, or by a youthful offender adjudication, as defined  in  subdivision
       S. 4071                             3
    1  one  of section 720.35 of the criminal procedure law, or by a conviction
    2  for a violation sealed pursuant to section 160.55 of the criminal proce-
    3  dure law or by a conviction which is sealed pursuant to  section  160.58
    4  of the criminal procedure law, in connection with the licensing, employ-
    5  ment  or  providing of credit or insurance to such individual; provided,
    6  further, that  no  person  shall  be  required  to  divulge  information
    7  pertaining  to  any arrest or criminal accusation of such individual not
    8  then pending against that individual which was followed by a termination
    9  of that criminal action or proceeding in favor of  such  individual,  as
   10  defined  in  subdivision two of section 160.50 of the criminal procedure
   11  law, or by a youthful offender adjudication, as defined  in  subdivision
   12  one  of section 720.35 of the criminal procedure law, or by a conviction
   13  for a violation sealed pursuant to section 160.55 of the criminal proce-
   14  dure law, or by a conviction which is sealed pursuant to section  160.58
   15  of  the criminal procedure law. The provisions of this subdivision shall
   16  not apply to the licensing activities of governmental bodies in relation
   17  to the regulation of guns, firearms  and  other  deadly  weapons  or  in
   18  relation  to  an application for employment as a police officer or peace
   19  officer as those terms are  defined  in  subdivisions  thirty-three  and
   20  thirty-four of section 1.20 of the criminal procedure law OR IN RELATION
   21  TO  AN APPLICATION   FOR EMPLOYMENT FOR ANY POSITION IN A POLICE DEPART-
   22  MENT  OR  OTHER  LAW  ENFORCEMENT  AGENCY;  provided  further  that  the
   23  provisions  of  this  subdivision  shall not apply to an application for
   24  employment or membership in any law enforcement agency with  respect  to
   25  any  arrest  or  criminal  accusation  which  was followed by a youthful
   26  offender adjudication, as defined in subdivision one of  section  720.35
   27  of the criminal procedure law, or by a conviction for a violation sealed
   28  pursuant  to  section  160.55  of  the  criminal  procedure law, or by a
   29  conviction which is sealed pursuant to section 160.58  of  the  criminal
   30  procedure law.
   31    S  4. Paragraphs (c) and (d) of subdivision 6 of section 160.58 of the
   32  criminal procedure law, as added by section 3 of part AAA of chapter  56
   33  of  the  laws  of  2009, are amended and a new paragraph (e) is added to
   34  read as follows:
   35    (c) the court has received documentation that the sentences imposed on
   36  the eligible misdemeanor convictions have been completed, or if no  such
   37  documentation  is  reasonably  available,  a  sworn  affidavit  that the
   38  sentences imposed on the prior misdemeanors have been completed; [and]
   39    (d) the court has notified the district attorney of each  jurisdiction
   40  in  which the defendant has been convicted of an offense with respect to
   41  which sealing is sought, and the court or  courts  of  record  for  such
   42  offenses,  that  the  court  is  considering  sealing the records of the
   43  defendant's eligible misdemeanor convictions. Both the district attorney
   44  and the court shall be given a reasonable opportunity, which  shall  not
   45  be  less  than  thirty days, in which to comment and submit materials to
   46  aid the court in making such a determination[.]; AND
   47    (E) ANY POLICE DEPARTMENT OR LAW ENFORCEMENT AGENCY, IN RELATION TO AN
   48  APPLICATION FOR EMPLOYMENT BY SUCH POLICE DEPARTMENT OR LAW  ENFORCEMENT
   49  AGENCY;  PROVIDED, HOWEVER, THAT EVERY APPLICANT SHALL BE FURNISHED WITH
   50  A COPY OF ALL RECORDS OBTAINED UNDER  THIS  PARAGRAPH  AND  AFFORDED  AN
   51  OPPORTUNITY TO MAKE AN EXPLANATION THERETO.
   52    S  5.  This  act shall take effect on the ninetieth day after it shall
   53  have become a law.