S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         5385
                              2013-2014 Regular Sessions
                                   I N  S E N A T E
                                     May 16, 2013
                                      ___________
       Introduced  by  Sen.  ZELDIN -- 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 OFFENSES.
    6    1. FOR THE PURPOSES OF THIS SECTION, THE TERM "ELIGIBLE OFFENSE" SHALL
    7  BE: (A) A MISDEMEANOR OFFENSE DEFINED IN THE PENAL LAW, PROVIDED THAT AN
    8  ELIGIBLE OFFENSE SHALL NOT MEAN A MISDEMEANOR OFFENSE DEFINED IN ARTICLE
    9  ONE  HUNDRED  TWENTY  EXCEPT  ASSAULT  IN THE THIRD DEGREE AS DEFINED BY
   10  SECTION 120.00, UNLESS COMMITTED IN THE COURSE OF  A  DOMESTIC  VIOLENCE
   11  INCIDENT,  ONE HUNDRED TWENTY-ONE, ONE HUNDRED THIRTY, ONE HUNDRED THIR-
   12  TY-FIVE, ONE HUNDRED FIFTY, TWO HUNDRED THIRTY-FIVE, TWO HUNDRED  FORTY-
   13  FIVE, TWO HUNDRED SIXTY, TWO HUNDRED SIXTY-THREE, TWO HUNDRED SIXTY-FIVE
   14  OR ARTICLE FOUR HUNDRED OF THE PENAL LAW. AN ELIGIBLE OFFENSE SHALL ALSO
   15  NOT  INCLUDE ANY ONE OR MORE OF THE FOLLOWING:  CRIMINAL SOLICITATION IN
   16  THE FOURTH DEGREE AS DEFINED  BY  SUBDIVISION  TWO  OF  SECTION  100.05;
   17  CONSPIRACY  IN THE FIFTH DEGREE AS DEFINED IN SECTION 105.05, PUNISHMENT
   18  AS DEFINED IN SUBDIVISION SEVEN OF SECTION 110.05, CRIMINAL FACILITATION
   19  IN THE FOURTH DEGREE AS DEFINED BY SECTION 115.00, CRIMINAL  OBSTRUCTION
   20  OF  BREATHING OR BLOOD CIRCULATION AS DEFINED IN SECTION 121.11, ISSUING
   21  ABORTIONAL ARTICLES AS DEFINED IN SECTION 125.60, CRIMINAL  MISCHIEF  IN
   22  THE  FOURTH  DEGREE  AS DEFINED IN SECTION 145.00, CRIMINAL TAMPERING IN
   23  THE SECOND DEGREE AS DEFINED IN SECTION 145.15, TAMPERING WITH A CONSUM-
   24  ER PRODUCT IN THE SECOND DEGREE AS DEFINED IN  SECTION  145.40,  WELFARE
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD06526-11-3
       S. 5385                             2
    1  FRAUD  IN THE FIFTH DEGREE AS DEFINED IN SECTION 158.05, CRIMINAL USE OF
    2  A PUBLIC BENEFIT CARD IN THE SECOND DEGREE AS DEFINED IN SECTION 158.30,
    3  UNLAWFUL USE OF A CREDIT CARD, DEBIT CARD  OR  PUBLIC  BENEFIT  CARD  AS
    4  DEFINED IN SECTION 165.17, FRAUDULENTLY OBTAINING A SIGNATURE AS DEFINED
    5  IN  SECTION 165.20, FRAUDULENTLY ACCOSTING AS DEFINED IN SECTION 165.30,
    6  FORGERY IN THE THIRD DEGREE  AS  DEFINED  IN  SECTION  170.05,  CRIMINAL
    7  POSSESSION OF AN ANTI-SECURITY ITEM AS DEFINED IN SECTION 170.47, FALSI-
    8  FYING  BUSINESS  RECORDS  IN  THE  SECOND  DEGREE  AS DEFINED IN SECTION
    9  175.05, TAMPERING WITH PUBLIC RECORDS IN THE SECOND DEGREE AS DEFINED IN
   10  SECTION 175.20, OFFERING A FALSE INSTRUMENT FOR  FILING  IN  THE  SECOND
   11  DEGREE AS DEFINED IN SECTION 175.30, ISSUING A FALSE FINANCIAL STATEMENT
   12  AS  DEFINED  IN  SECTION  175.45, INSURANCE FRAUD IN THE FIFTH DEGREE AS
   13  DEFINED IN SECTION 176.10, HEALTH CARE FRAUD  IN  THE  FIFTH  DEGREE  AS
   14  DEFINED  IN  SECTION  177.05, COMMERCIAL BRIBING IN THE SECOND DEGREE AS
   15  DEFINED IN SECTION 180.00, COMMERCIAL  BRIBE  RECEIVING  IN  THE  SECOND
   16  DEGREE AS DEFINED IN SECTION 180.05, RENT GOUGING IN THE THIRD DEGREE AS
   17  DEFINED  IN SECTION 180.55, RENT GOUGING IN THE SECOND DEGREE AS DEFINED
   18  IN SECTION 180.56, FRAUD IN INSOLVENCY AS  DEFINED  IN  SECTION  185.00,
   19  FRAUD  INVOLVING A SECURITY INTEREST AS DEFINED IN SECTION 185.05, FRAU-
   20  DULENT DISPOSITION OF MORTGAGED PROPERTY AS DEFINED IN  SECTION  185.10,
   21  FRAUDULENT  DISPOSITION  OF  PROPERTY  SUBJECT  TO  A  CONDITIONAL  SALE
   22  CONTRACT AS DEFINED IN SECTION 185.15, RESIDENTIAL MORTGAGE FRAUD IN THE
   23  FIFTH DEGREE AS DEFINED IN  SECTION  187.05,  ISSUING  A  BAD  CHECK  AS
   24  DEFINED  IN SECTION 190.05, CRIMINAL SALE OF A POLICE UNIFORM AS DEFINED
   25  IN SECTION 190.27,  MISCONDUCT  BY  CORPORATE  OFFICIAL  AS  DEFINED  IN
   26  SECTION  190.35,  MAKING A FALSE STATEMENT OF CREDIT TERMS AS DEFINED IN
   27  SECTION 190.55, SCHEME TO DEFRAUD IN THE SECOND  DEGREE  AS  DEFINED  IN
   28  SECTION  190.60,  SCHEME  TO  DEFRAUD  THE  STATE  BY UNLAWFULLY SELLING
   29  PRESCRIPTIONS AS DEFINED IN SECTION 190.70, CRIMINAL USE  OF  AN  ACCESS
   30  DEVICE IN THE SECOND DEGREE AS DEFINED IN SECTION 190.75, IDENTITY THEFT
   31  IN THE THIRD DEGREE AS DEFINED IN SECTION 190.78, UNLAWFUL POSSESSION OF
   32  A  SKIMMER  DEVICE  IN  THE  SECOND DEGREE AS DEFINED IN SECTION 190.85,
   33  OFFICIAL MISCONDUCT AS DEFINED IN SECTION 195.00, KILLING OR INJURING  A
   34  POLICE  ANIMAL  AS DEFINED IN SECTION 195.06, REFUSING TO AID A PEACE OR
   35  POLICE OFFICER AS DEFINED IN SECTION 195.10, HARMING AN  ANIMAL  TRAINED
   36  TO  AID  A  PERSON  WITH A DISABILITY IN THE SECOND DEGREE AS DEFINED IN
   37  SECTION 195.11, HARMING AN ANIMAL TRAINED TO AID A PERSON WITH  A  DISA-
   38  BILITY  IN  THE FIRST DEGREE AS DEFINED IN SECTION 195.12, ESCAPE IN THE
   39  THIRD DEGREE AS DEFINED IN SECTION  205.05,  ABSCONDING  FROM  TEMPORARY
   40  RELEASE  IN  THE  SECOND DEGREE AS DEFINED IN SECTION 205.16, ABSCONDING
   41  FROM A FURLOUGH PROGRAM AS DEFINED IN SECTION 205.18,  PROMOTING  PRISON
   42  CONTRABAND  IN THE SECOND DEGREE AS DEFINED IN SECTION 205.20, HINDERING
   43  PROSECUTION IN THE THIRD DEGREE AS DEFINED IN SECTION 205.55, MAKING  AN
   44  APPARENTLY  FALSE  SWORN  STATEMENT  IN  THE SECOND DEGREE AS DEFINED IN
   45  SECTION 210.35, MAKING A PUNISHABLE FALSE WRITTEN STATEMENT  AS  DEFINED
   46  IN  SECTION  210.45,  TAMPERING  WITH  A  WITNESS IN THE FORTH DEGREE AS
   47  DEFINED IN SECTION 215.10, CRIMINAL CONTEMPT IN  THE  SECOND  DEGREE  AS
   48  DEFINED  IN SECTION 215.50, CRIMINAL POSSESSION OF METHAMPHETAMINE MANU-
   49  FACTURING MATERIAL IN THE SECOND DEGREE AS DEFINED  IN  SECTION  220.70,
   50  PROMOTING  PROSTITUTION  IN  THE  FOURTH  DEGREE  AS  DEFINED IN SECTION
   51  230.20, RIOT IN THE SECOND DEGREE AS DEFINED IN SECTION 240.05, INCITING
   52  TO RIOT AS DEFINED IN SECTION 240.08, DISRUPTION  OR  DISTURBANCE  OF  A
   53  RELIGIOUS  SERVICE,  FUNERAL,  BURIAL  OR MEMORIAL SERVICE AS DEFINED IN
   54  SECTION 240.21, HARASSMENT IN THE FIRST DEGREE  AS  DEFINED  IN  SECTION
   55  240.25,  CRIMINAL  NUISANCE  IN  THE SECOND DEGREE AS DEFINED BY SECTION
   56  240.45, DISSEMINATING A FALSE REGISTERED SEX OFFENDER NOTICE AS  DEFINED
       S. 5385                             3
    1  IN  SECTION  240.48,  CRIMINAL INTERFERENCE WITH HEALTH CARE SERVICES OR
    2  RELIGIOUS WORSHIP IN THE SECOND DEGREE AS  DEFINED  IN  SECTION  240.70,
    3  INTERFERENCE,  HARASSMENT OR INTIMIDATION OF A SERVICE ANIMAL AS DEFINED
    4  IN  SECTION  242.05,  HARMING  A  SERVICE ANIMAL IN THE SECOND DEGREE AS
    5  DEFINED IN SECTION 242.10, DISSEMINATION  OF  AN  UNLAWFUL  SURVEILLANCE
    6  IMAGE  IN THE SECOND DEGREE AS DEFINED IN SECTION 250.55, NON-SUPPORT OF
    7  A CHILD IN THE SECOND DEGREE AS DEFINED IN SECTION 260.05,  MISREPRESEN-
    8  TATION BY A CHILD DAY CARE PROVIDER AS DEFINED IN SECTION 260.31, UNLAW-
    9  FULLY FLEEING A POLICE OFFICER IN A MOTOR VEHICLE IN THE THIRD DEGREE AS
   10  DEFINED  IN  SECTION  270.25  OR  ANY  SPECIFIED  OFFENSE SUBJECT TO THE
   11  PROVISION RELATING TO HATE CRIMES AS DEFINED IN SECTION  485.05  OF  THE
   12  PENAL LAW.  ADDITIONALLY, AN ELIGIBLE OFFENSE SHALL NOT INCLUDE CRIMINAL
   13  SOLICITATION,  CONSPIRACY,  ATTEMPT,  OR CRIMINAL FACILITATION TO COMMIT
   14  ANY VIOLENT FELONY OFFENSE AS DEFINED IN SECTION 70.02 OF THE PENAL LAW,
   15  OR ANY SEX OFFENSE AS DEFINED  UNDER  SUBDIVISION  TWO  OF  SECTION  ONE
   16  HUNDRED  SIXTY-EIGHT-A  OF THE CORRECTION LAW.  "ELIGIBLE OFFENSE" SHALL
   17  ALSO INCLUDE RECKLESS DRIVING, AS  DEFINED  BY  SECTION  TWELVE  HUNDRED
   18  TWELVE OF THE VEHICLE AND TRAFFIC LAW;
   19    (B) ANY NON-CRIMINAL OFFENSE; OR
   20    (C) ANY YOUTHFUL OFFENDER ADJUDICATION.
   21    2.  A  PERSON HAVING A CONVICTION FOR NO MORE THAN THREE OFFENSES, WHO
   22  DOES NOT STAND CONVICTED OF ANY FELONY, AND WHO IS NOT REQUIRED TO MAIN-
   23  TAIN REGISTRATION UNDER ARTICLE SIX-C OF THE CORRECTION LAW,  MAY  PETI-
   24  TION  THE  COURT WHICH ISSUED THE CONVICTION TO CONDITIONALLY SEAL UP TO
   25  THREE ELIGIBLE OFFENSES WHEN:
   26    (A) AT LEAST FIVE YEARS HAVE PASSED SINCE THE COMPLETION OF A SENTENCE
   27  ON AN ELIGIBLE OFFENSE; AND
   28    (B) SUCH PERSON HAS NOT BEEN CONVICTED OF A PENAL LAW  OFFENSE  DURING
   29  THE LAST SEVEN YEARS AND IS NOT THE SUBJECT OF AN UNDISPOSED ARREST.
   30    3. THE PETITION AUTHORIZED BY THIS SECTION SHALL BE FILED IN THE COURT
   31  OF  RECORD  THAT  IMPOSED  THE SENTENCE UPON PETITIONER FOR THE ELIGIBLE
   32  OFFENSE. ON THE DEFENDANT'S MOTION, THE COURT WHICH IMPOSED THE SENTENCE
   33  FOR THE ELIGIBLE OFFENSE MAY ORDER THAT THE OFFICIAL RECORDS AND  PAPERS
   34  RELATING  TO  THE  ARREST,  PROSECUTION  AND  CONVICTION RECORDS FOR THE
   35  MATTER WHICH THEY DISPOSED OF BE  CONDITIONALLY  SEALED.    ANY  SEALING
   36  ORDERED PURSUANT TO THIS SECTION SHALL ALSO RENDER THE ASSOCIATED ARREST
   37  A  NULLITY.    PRIOR  TO  SEALING  ANY  ARREST RECORDS, PROSECUTIONS, OR
   38  CONVICTIONS:
   39    (A) THE SENTENCING COURT MUST REQUEST AND RECEIVE FROM THE DIVISION OF
   40  CRIMINAL JUSTICE SERVICES OR THE FEDERAL BUREAU OF INVESTIGATION A FING-
   41  ERPRINT BASED CRIMINAL HISTORY RECORD OF THE  DEFENDANT,  INCLUDING  ANY
   42  SEALED  OR  SUPPRESSED  INFORMATION.  THE  DIVISION  OF CRIMINAL JUSTICE
   43  SERVICES SHALL ALSO INCLUDE A CRIMINAL HISTORY REPORT, IF ANY, FROM  THE
   44  FEDERAL  BUREAU OF INVESTIGATION REGARDING ANY CRIMINAL HISTORY INFORMA-
   45  TION THAT OCCURRED  IN  OTHER  JURISDICTIONS.  THE  DIVISION  IS  HEREBY
   46  AUTHORIZED TO RECEIVE SUCH INFORMATION FROM THE FEDERAL BUREAU OF INVES-
   47  TIGATION  FOR  THIS  PURPOSE.  THE PARTIES SHALL BE PERMITTED TO EXAMINE
   48  THESE RECORDS;
   49    (B) THE DEFENDANT OR COURT  MUST  IDENTIFY  THE  ELIGIBLE  OFFENSE  OR
   50  OFFENSES FOR WHICH RELIEF MAY BE GRANTED;
   51    (C)  THE COURT MUST RECEIVE DOCUMENTATION THAT THE SENTENCE IMPOSED ON
   52  THE ELIGIBLE OFFENSE OR ELIGIBLE OFFENSES HAS BEEN COMPLETED, OR  IF  NO
   53  SUCH  DOCUMENTATION  IS REASONABLY AVAILABLE, A SWORN AFFIDAVIT THAT THE
   54  SENTENCES IMPOSED ON THE PRIOR OFFENSES HAVE BEEN COMPLETED;
       S. 5385                             4
    1    (D) THE DEFENDANT MUST PAY A TWO HUNDRED DOLLAR FILING FEE. THE FILING
    2  FEE MAY BE WAIVED IN CASES OF INDIGENCE AS DETERMINED BY  THE  PRESIDING
    3  JUDGE.
    4    4.  AT THE REQUEST OF THE DEFENDANT OR THE DISTRICT ATTORNEY THE COURT
    5  MAY CONDUCT A HEARING TO  CONSIDER  AND  REVIEW  ANY  RELEVANT  EVIDENCE
    6  OFFERED BY EITHER PARTY THAT WOULD AID THE COURT IN ITS DECISION WHETHER
    7  TO  SEAL  THE  RECORDS  OF  THE  DEFENDANT'S  ARRESTS,  PROSECUTIONS AND
    8  CONVICTIONS.  IN MAKING SUCH A DETERMINATION, THE COURT  SHALL  CONSIDER
    9  ANY RELEVANT FACTORS, INCLUDING BUT NOT LIMITED TO:
   10    (A)  THE CIRCUMSTANCES AND SERIOUSNESS OF THE OFFENSE OR OFFENSES THAT
   11  RESULTED IN THE CONVICTION OR CONVICTIONS;
   12    (B) THE CHARACTER OF THE DEFENDANT, INCLUDING WHAT STEPS THE PETITION-
   13  ER HAS TAKEN SINCE THE TIME OF THE  OFFENSE  TOWARD  PERSONAL  REHABILI-
   14  TATION,  INCLUDING  TREATMENT,  WORK,  SCHOOL, OR OTHER PERSONAL HISTORY
   15  THAT DEMONSTRATES REHABILITATION;
   16    (C) THE DEFENDANT'S CRIMINAL HISTORY;
   17    (D) THE DEFENDANT'S CIVIC SERVICE RECORD;
   18    (E) THE IMPACT OF SEALING THE DEFENDANT'S  RECORDS  UPON  HIS  OR  HER
   19  REHABILITATION  AND  HIS  OR  HER  SUCCESSFUL AND PRODUCTIVE REENTRY AND
   20  REINTEGRATION INTO SOCIETY, AND ON PUBLIC SAFETY; AND
   21    (F) ANY STATEMENTS MADE BY THE VICTIM OF THE OFFENSE WHERE THERE IS IN
   22  FACT A VICTIM OF THE CRIME.
   23    5. A DECISION GRANTING OR DENYING A MOTION UNDER THIS SECTION SHALL BE
   24  MADE IN WRITING AND SHALL STATE THE  REASONS  FOR  THE  COURT'S  RULING,
   25  UNLESS THE COURT GRANTS THE MOTION WITHOUT OBJECTION OR WRITTEN RESPONSE
   26  BY  THE PROSECUTOR, IN WHICH CASE THE COURT MAY ISSUE AN ORDER WITHOUT A
   27  WRITTEN DECISION. IF SEALING IS DENIED, THE  APPLICANT  MAY  APPEAL  THE
   28  DECISION  IN  ACCORDANCE  WITH  SUBDIVISION  SIX OF THIS SECTION, OR THE
   29  APPLICANT MAY REAPPLY AFTER THREE YEARS.
   30    6. EITHER PARTY MAY APPEAL AS OF RIGHT FROM  THE  COURT'S  ORDER.  THE
   31  APPEALING  PARTY  MUST  SERVE  NOTICE  OF  APPEAL UPON THE COURT AND THE
   32  OPPOSING PARTY WITHIN THIRTY DAYS OF THE ISSUANCE OF THE COURT ORDER. IF
   33  THE ORDER IS APPEALED BY THE PROSECUTOR, SUCH NOTICE OF APPEAL SHALL  BE
   34  DEEMED  A  STAY  OF  THE ORDER TO SEAL THE RECORDS. THE PROSECUTOR SHALL
   35  PERFECT THE APPEAL WITHIN SIXTY DAYS, OR THE SEALING ORDER  SHALL  IMME-
   36  DIATELY  TAKE EFFECT UNLESS THE COURT GRANTS AN EXTENSION OF THE TIME TO
   37  PERFECT THE APPEAL UPON GOOD CAUSE SHOWN BY THE PROSECUTOR.  THE  APPEAL
   38  SHALL  BE  TAKEN  TO  THE SAME COURT TO WHICH THE APPEAL OF THE ORIGINAL
   39  CONVICTION COULD HAVE BEEN BROUGHT. THE STANDARD OF REVIEW AT THE INTER-
   40  MEDIARY APPELLATE COURT SHALL BE ABUSE OF DISCRETION. THE DECISION OF AN
   41  INTERMEDIARY APPELLATE COURT SHALL BE APPEALABLE TO THE COURT OF APPEALS
   42  UPON LEAVE OF THE COURT.
   43    7. WHEN A COURT ORDERS SEALING PURSUANT TO THIS SECTION, ALL  OFFICIAL
   44  RECORDS   AND   PAPERS   RELATING  TO  THE  ARRESTS,  PROSECUTIONS,  AND
   45  CONVICTIONS, INCLUDING ALL DUPLICATES AND COPIES THEREOF, ON  FILE  WITH
   46  THE  DIVISION  OF CRIMINAL JUSTICE SERVICES OR ANY COURT SHALL BE SEALED
   47  AND NOT MADE AVAILABLE TO  ANY  PERSON  OR  PUBLIC  OR  PRIVATE  AGENCY;
   48  PROVIDED,  HOWEVER,  THE  DIVISION  SHALL RETAIN ANY FINGERPRINTS, PALM-
   49  PRINTS, PHOTOGRAPHS, OR DIGITAL IMAGES OF THE SAME.
   50    8. WHEN THE COURT ORDERS SEALING PURSUANT TO THIS SECTION,  THE  CLERK
   51  OF  SUCH COURT SHALL IMMEDIATELY NOTIFY THE COMMISSIONER OF THE DIVISION
   52  OF CRIMINAL JUSTICE SERVICES AND THE  DEFENDANT  REGARDING  THE  RECORDS
   53  THAT SHALL BE SEALED PURSUANT TO THIS SECTION.
   54    9. RECORDS SEALED PURSUANT TO THIS SUBDIVISION SHALL BE MADE AVAILABLE
   55  TO:
   56    (A) THE DEFENDANT OR THE DEFENDANT'S DESIGNATED AGENT;
       S. 5385                             5
    1    (B)  QUALIFIED  AGENCIES,  AS  DEFINED  IN SUBDIVISION NINE OF SECTION
    2  EIGHT HUNDRED THIRTY-FIVE OF THE EXECUTIVE LAW, AND  FEDERAL  AND  STATE
    3  LAW  ENFORCEMENT  AGENCIES,  WHEN  ACTING  WITHIN THE SCOPE OF THEIR LAW
    4  ENFORCEMENT DUTIES EXCEPT THAT RECORDS MAY NOT BE USED SOLELY FOR  LITI-
    5  GATION PURPOSES;
    6    (C)  ANY  STATE OR LOCAL OFFICER OR AGENCY WITH RESPONSIBILITY FOR THE
    7  ISSUANCE OF LICENSES TO POSSESS GUNS, WHEN THE PERSON HAS MADE  APPLICA-
    8  TION FOR SUCH A LICENSE; OR
    9    (D)  ANY  PROSPECTIVE EMPLOYER OF A POLICE OFFICER OR PEACE OFFICER AS
   10  THOSE TERMS ARE DEFINED IN SUBDIVISIONS THIRTY-THREE AND THIRTY-FOUR  OF
   11  SECTION  1.20 OF THIS CHAPTER, IN RELATION TO AN APPLICATION FOR EMPLOY-
   12  MENT AS A POLICE OFFICER OR PEACE OFFICER; PROVIDED, HOWEVER, THAT EVERY
   13  PERSON WHO IS AN APPLICANT FOR THE POSITION OF POLICE OFFICER  OR  PEACE
   14  OFFICER  SHALL  BE  FURNISHED  WITH A COPY OF ALL RECORDS OBTAINED UNDER
   15  THIS PARAGRAPH AND AFFORDED AN OPPORTUNITY TO MAKE AN EXPLANATION THERE-
   16  TO.
   17    10. THE COURT SHALL NOT SEAL THE DEFENDANT'S RECORD PURSUANT  TO  THIS
   18  SECTION WHILE ANY CHARGED OFFENSE IS PENDING.
   19    11. IF, SUBSEQUENT TO THE SEALING OF RECORDS PURSUANT TO THIS SUBDIVI-
   20  SION, A PERSON WHO IS THE SUBJECT OF SUCH RECORDS IS FOUND GUILTY OF ANY
   21  MISDEMEANOR OR FELONY OFFENSE, SUCH RECORDS SHALL BE UNSEALED IMMEDIATE-
   22  LY AND REMAIN UNSEALED.
   23    12.  THE  RIGHT  TO  MAKE AN APPLICATION UNDER THIS SECTION MAY NOT BE
   24  WAIVED AT THE TIME A GUILTY PLEA IS ENTERED ON  ANY  CASE  IN  NEW  YORK
   25  STATE.
   26    S 3. Subdivision 16 of section 296 of the executive law, as separately
   27  amended  by section 3 of part N and section 14 of part AAA of chapter 56
   28  of the laws of 2009, is amended to read as follows:
   29    16. It shall be an unlawful discriminatory  practice,  unless  specif-
   30  ically required or permitted by statute, for any person, agency, bureau,
   31  corporation or association, including the state and any political subdi-
   32  vision thereof, to make any inquiry about, whether in any form of appli-
   33  cation  or  otherwise,  or  to  act  upon  adversely  to  the individual
   34  involved, any arrest or criminal accusation of such individual not  then
   35  pending  against  that individual which was followed by a termination of
   36  that criminal action or proceeding  in  favor  of  such  individual,  as
   37  defined  in  subdivision two of section 160.50 of the criminal procedure
   38  law, or by a youthful offender adjudication, as defined  in  subdivision
   39  one  of section 720.35 of the criminal procedure law, or by a conviction
   40  for a violation sealed pursuant to section 160.55 of the criminal proce-
   41  dure law or by a conviction which is sealed pursuant to  section  160.58
   42  of the criminal procedure law, OR BY A CONVICTION WHICH IS SEALED PURSU-
   43  ANT  TO SECTION 160.65 OF THE CRIMINAL PROCEDURE LAW, in connection with
   44  the licensing, employment or providing of credit or  insurance  to  such
   45  individual;  provided,  further,  that  no  person  shall be required to
   46  divulge information pertaining to any arrest or criminal  accusation  of
   47  such  individual  not  then  pending  against  that individual which was
   48  followed by a termination of that criminal action or proceeding in favor
   49  of such individual, as defined in subdivision two of section  160.50  of
   50  the  criminal  procedure law, or by a youthful offender adjudication, as
   51  defined in subdivision one of section 720.35 of the  criminal  procedure
   52  law,  or  by  a  conviction  for  a violation sealed pursuant to section
   53  160.55 of the criminal procedure law, or by a conviction which is sealed
   54  pursuant to section 160.58 of  the  criminal  procedure  law,  OR  BY  A
   55  CONVICTION  WHICH  IS  SEALED PURSUANT TO SECTION 160.65 OF THE CRIMINAL
   56  PROCEDURE LAW. The provisions of this subdivision shall not apply to the
       S. 5385                             6
    1  licensing activities of governmental bodies in  relation  to  the  regu-
    2  lation  of  guns, firearms and other deadly weapons or in relation to an
    3  application for employment as a police officer or peace officer as those
    4  terms  are  defined  in  subdivisions  thirty-three  and  thirty-four of
    5  section 1.20 of the criminal procedure law; provided  further  that  the
    6  provisions  of  this  subdivision  shall not apply to an application for
    7  employment or membership in any law enforcement agency with  respect  to
    8  any  arrest  or  criminal  accusation  which  was followed by a youthful
    9  offender adjudication, as defined in subdivision one of  section  720.35
   10  of the criminal procedure law, or by a conviction for a violation sealed
   11  pursuant  to  section  160.55  of  the  criminal  procedure law, or by a
   12  conviction which is sealed pursuant to section 160.58  of  the  criminal
   13  procedure  law,  OR  BY A CONVICTION WHICH IS SEALED PURSUANT TO SECTION
   14  160.65 OF THE CRIMINAL PROCEDURE LAW.
   15    S 4. This act shall take effect on the one hundred eightieth day after
   16  it shall have become a law and shall apply to all convictions  occurring
   17  prior to, on, and after such date.