S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         1609
                              2013-2014 Regular Sessions
                                   I N  S E N A T E
                                      (PREFILED)
                                    January 9, 2013
                                      ___________
       Introduced  by  Sen.  PARKER -- 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  for  persons  whose
         convictions took place between the ages of 17 and 21
         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
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD02758-01-3
       S. 1609                             2
    1  SECTION 240.70, HARMING A SERVICE ANIMAL IN THE SECOND DEGREE AS DEFINED
    2  IN SECTION 242.10, DISSEMINATION OF AN UNLAWFUL  SURVEILLANCE  IMAGE  IN
    3  THE SECOND DEGREE AS DEFINED IN SECTION 250.55, OR ANY SPECIFIED OFFENSE
    4  SUBJECT  TO  THE PROVISION RELATING TO HATE CRIMES AS DEFINED IN SECTION
    5  485.05 OF THE PENAL LAW. ADDITIONALLY, AN ELIGIBLE MISDEMEANOR SHALL NOT
    6  INCLUDE CRIMINAL SOLICITATION, CONSPIRACY, ATTEMPT, OR CRIMINAL  FACILI-
    7  TATION  TO COMMIT ANY VIOLENT FELONY OFFENSE AS DEFINED IN SECTION 70.02
    8  OF THE PENAL LAW, OR ANY SEX OFFENSE AS DEFINED UNDER SUBDIVISION TWO OF
    9  SECTION ONE HUNDRED SIXTY-EIGHT-A OF THE CORRECTION LAW.
   10    2. A PERSON HAVING A CONVICTION FOR NO MORE  THAN  THREE  MISDEMEANORS
   11  AND SUCH CONVICTION OR CONVICTIONS OCCURRED WHEN THE PERSON WAS AT LEAST
   12  SEVENTEEN YEARS OLD BUT NOT MORE THAN TWENTY-ONE YEARS OLD, WHO DOES NOT
   13  STAND CONVICTED OF ANY FELONY, OR WHO IS NOT REQUIRED TO MAINTAIN REGIS-
   14  TRATION  UNDER  ARTICLE  SIX-C  OF  THE CORRECTION LAW, MAY PETITION THE
   15  COURT TO CONDITIONALLY SEAL UP TO THREE ELIGIBLE MISDEMEANORS WHEN:
   16    (A) AT LEAST TEN YEARS HAVE PASSED SINCE THE COMPLETION OF A  SENTENCE
   17  ON AN ELIGIBLE MISDEMEANOR; AND
   18    (B)  SUCH PERSON HAS NOT BEEN CONVICTED OF ANY OFFENSE DURING THE LAST
   19  TEN YEARS AND IS NOT THE SUBJECT OF AN UNDISPOSED ARREST.
   20    3. THE PETITION AUTHORIZED BY THIS SECTION SHALL BE FILED IN THE COURT
   21  OF RECORD THAT LAST IMPOSED A SENTENCE UPON PETITIONER FOR  AN  ELIGIBLE
   22  MISDEMEANOR.  ON  THE  DEFENDANT'S  MOTION, THE COURT MAY ORDER THAT ALL
   23  OFFICIAL RECORDS AND PAPERS RELATING  TO  THE  ARREST,  PROSECUTION  AND
   24  CONVICTION  RECORDS  FOR  NO  MORE  THAN  THREE OF THE DEFENDANT'S PRIOR
   25  ELIGIBLE MISDEMEANORS BE CONDITIONALLY SEALED.  THE COURT MAY ONLY  SEAL
   26  THE  RECORDS  OF  THE  DEFENDANT'S ARRESTS, PROSECUTIONS AND CONVICTIONS
   27  WHEN:
   28    (A) THE SENTENCING COURT HAS REQUESTED AND RECEIVED FROM THE  DIVISION
   29  OF  CRIMINAL  JUSTICE  SERVICES OR THE FEDERAL BUREAU OF INVESTIGATION A
   30  FINGERPRINT BASED CRIMINAL HISTORY RECORD OF  THE  DEFENDANT,  INCLUDING
   31  ANY  SEALED  OR SUPPRESSED INFORMATION. THE DIVISION OF CRIMINAL JUSTICE
   32  SERVICES SHALL ALSO INCLUDE A CRIMINAL HISTORY REPORT, IF ANY, FROM  THE
   33  FEDERAL  BUREAU OF INVESTIGATION REGARDING ANY CRIMINAL HISTORY INFORMA-
   34  TION THAT OCCURRED  IN  OTHER  JURISDICTIONS.  THE  DIVISION  IS  HEREBY
   35  AUTHORIZED TO RECEIVE SUCH INFORMATION FROM THE FEDERAL BUREAU OF INVES-
   36  TIGATION  FOR  THIS  PURPOSE.  THE PARTIES SHALL BE PERMITTED TO EXAMINE
   37  THESE RECORDS;
   38    (B) THE DEFENDANT OR COURT HAS IDENTIFIED THE  MISDEMEANOR  CONVICTION
   39  OR CONVICTIONS FOR WHICH RELIEF MAY BE GRANTED;
   40    (C) THE COURT HAS RECEIVED DOCUMENTATION THAT THE SENTENCES IMPOSED ON
   41  THE  ELIGIBLE MISDEMEANOR CONVICTIONS HAVE BEEN COMPLETED, OR IF NO SUCH
   42  DOCUMENTATION IS  REASONABLY  AVAILABLE,  A  SWORN  AFFIDAVIT  THAT  THE
   43  SENTENCES IMPOSED ON THE PRIOR MISDEMEANORS HAVE BEEN COMPLETED; AND
   44    (D)  THE COURT HAS NOTIFIED THE DISTRICT ATTORNEY OF EACH JURISDICTION
   45  IN WHICH THE DEFENDANT HAS BEEN CONVICTED OF AN OFFENSE WITH RESPECT  TO
   46  WHICH  SEALING  IS  SOUGHT,  AND  THE COURT OR COURTS OF RECORD FOR SUCH
   47  OFFENSES, THAT THE COURT IS  CONSIDERING  SEALING  THE  RECORDS  OF  THE
   48  DEFENDANT'S ELIGIBLE MISDEMEANOR CONVICTIONS. BOTH THE DISTRICT ATTORNEY
   49  AND  THE  COURT SHALL BE GIVEN A REASONABLE OPPORTUNITY, WHICH SHALL NOT
   50  BE LESS THAN THIRTY DAYS, IN WHICH TO COMMENT AND  SUBMIT  MATERIALS  TO
   51  AID  THE COURT IN MAKING SUCH A DETERMINATION. WHEN THE COURT NOTIFIES A
   52  DISTRICT ATTORNEY OF A SEALING APPLICATION, THE DISTRICT ATTORNEY  SHALL
   53  PROVIDE  NOTICE  TO  THE  VICTIM,  IF ANY, OF THE SEALING APPLICATION BY
   54  MAILING WRITTEN NOTICE TO THE VICTIM'S LAST KNOWN ADDRESS. FOR  PURPOSES
   55  OF  THIS SECTION "VICTIM" MEANS ANY PERSON WHO HAS SUSTAINED PHYSICAL OR
       S. 1609                             3
    1  FINANCIAL INJURY TO PERSON OR TO PROPERTY AS  A  DIRECT  RESULT  OF  THE
    2  MISDEMEANOR CRIME OR MISDEMEANOR CRIMES FOR WHICH SEALING IS APPLIED.
    3    4. AT THE REQUEST OF THE DEFENDANT OR THE DISTRICT ATTORNEY OF A COUN-
    4  TY  IN  WHICH THE DEFENDANT COMMITTED A CRIME THAT IS THE SUBJECT OF THE
    5  SEALING APPLICATION, THE COURT MAY CONDUCT A  HEARING  TO  CONSIDER  AND
    6  REVIEW  ANY RELEVANT EVIDENCE OFFERED BY EITHER PARTY THAT WOULD AID THE
    7  COURT IN ITS DECISION WHETHER TO SEAL THE  RECORDS  OF  THE  DEFENDANT'S
    8  ARRESTS,  PROSECUTIONS AND CONVICTIONS.  IN MAKING SUCH A DETERMINATION,
    9  THE COURT SHALL CONSIDER ANY RELEVANT FACTORS, INCLUDING BUT NOT LIMITED
   10  TO:
   11    (A) THE CIRCUMSTANCES AND SERIOUSNESS OF THE OFFENSE OR OFFENSES  THAT
   12  RESULTED IN THE CONVICTION OR CONVICTIONS;
   13    (B) THE CHARACTER OF THE DEFENDANT, INCLUDING WHAT STEPS THE PETITION-
   14  ER  HAS  TAKEN  SINCE  THE TIME OF THE OFFENSE TOWARD PERSONAL REHABILI-
   15  TATION, INCLUDING TREATMENT, WORK, SCHOOL,  OR  OTHER  PERSONAL  HISTORY
   16  THAT DEMONSTRATES REHABILITATION;
   17    (C) THE DEFENDANT'S CRIMINAL HISTORY;
   18    (D)  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    (E) ANY STATEMENTS MADE BY THE VICTIM OF THE OFFENSE WHERE THERE IS IN
   22  FACT A VICTIM OF THE CRIME.
   23    5.  AFTER  A  COURT  DECLARES ITS WILLINGNESS TO GRANT THE DEFENDANT'S
   24  REQUEST FOR CONDITIONAL SEALING PURSUANT TO THIS SECTION, BUT BEFORE THE
   25  COURT ORDERS SEALING PURSUANT TO THIS SECTION, THE DEFENDANT SHALL PAY A
   26  MANDATORY CONDITIONAL SEALING FEE. THE MANDATORY CONDITIONAL SEALING FEE
   27  WILL BE A FEE OF ONE HUNDRED DOLLARS, HOWEVER, SUCH FILING FEE SHALL  BE
   28  WAIVED  IN CASES OF INDIGENCE. THE MANDATORY FILING FEE SHALL BE PAID TO
   29  THE CLERK OF THE COURT OR  ADMINISTRATIVE  TRIBUNAL  THAT  RENDERED  THE
   30  CONVICTION.  WITHIN THE FIRST TEN DAYS OF THE MONTH FOLLOWING COLLECTION
   31  OF THE MANDATORY FILING FEE, THE COLLECTING AUTHORITY IF IT IS AN ADMIN-
   32  ISTRATIVE TRIBUNAL, OR A TOWN OR VILLAGE JUSTICE COURT, SHALL  THEN  PAY
   33  SUCH  MONEY TO THE STATE COMPTROLLER WHO SHALL DEPOSIT SUCH MONEY IN THE
   34  STATE TREASURY PURSUANT TO SECTION ONE HUNDRED TWENTY-ONE OF  THE  STATE
   35  FINANCE  LAW TO THE CREDIT OF THE DIVISION FOR YOUTH FACILITIES IMPROVE-
   36  MENT FUND ESTABLISHED PURSUANT TO SECTION NINETY-SEVEN-GG OF  THE  STATE
   37  FINANCE  LAW.  IF  SUCH  COLLECTING  AUTHORITY IS ANY OTHER COURT OF THE
   38  UNIFIED COURT SYSTEM, IT SHALL,  WITHIN  SUCH  PERIOD,  PAY  SUCH  MONEY
   39  ATTRIBUTABLE  TO  THE  MANDATORY FILING FEE TO THE STATE COMMISSIONER OF
   40  TAXATION AND FINANCE TO THE CREDIT OF THE INDIGENT LEGAL  SERVICES  FUND
   41  ESTABLISHED BY SECTION NINETY-EIGHT-B OF THE STATE FINANCE LAW.
   42    6.  WHEN A COURT ORDERS SEALING PURSUANT TO THIS SECTION, ALL OFFICIAL
   43  RECORDS  AND  PAPERS  RELATING  TO  THE   ARRESTS,   PROSECUTIONS,   AND
   44  CONVICTIONS,  INCLUDING  ALL DUPLICATES AND COPIES THEREOF, ON FILE WITH
   45  THE DIVISION OF CRIMINAL JUSTICE SERVICES OR ANY COURT SHALL  BE  SEALED
   46  AND  NOT  MADE  AVAILABLE  TO  ANY  PERSON  OR PUBLIC OR PRIVATE AGENCY;
   47  PROVIDED, HOWEVER, THE DIVISION SHALL  RETAIN  ANY  FINGERPRINTS,  PALM-
   48  PRINTS, PHOTOGRAPHS, OR DIGITAL IMAGES OF THE SAME.
   49    7.  WHEN  THE COURT ORDERS SEALING PURSUANT TO THIS SECTION, THE CLERK
   50  OF SUCH COURT SHALL IMMEDIATELY NOTIFY THE COMMISSIONER OF THE  DIVISION
   51  OF CRIMINAL JUSTICE SERVICES, AND ANY COURT THAT SENTENCED THE DEFENDANT
   52  FOR  AN  OFFENSE  WHICH  HAS  BEEN  CONDITIONALLY  SEALED, REGARDING THE
   53  RECORDS THAT SHALL BE SEALED PURSUANT TO THIS SECTION.
   54    8. RECORDS SEALED PURSUANT TO THIS SUBDIVISION SHALL BE MADE AVAILABLE
   55  TO:
   56    (A) THE DEFENDANT OR THE DEFENDANT'S DESIGNATED AGENT;
       S. 1609                             4
    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;
    5    (C)  ANY  STATE OR LOCAL OFFICER OR AGENCY WITH RESPONSIBILITY FOR THE
    6  ISSUANCE OF LICENSES TO POSSESS GUNS, WHEN THE PERSON HAS MADE  APPLICA-
    7  TION FOR SUCH A LICENSE; OR
    8    (D)  ANY  PROSPECTIVE EMPLOYER OF A POLICE OFFICER OR PEACE OFFICER AS
    9  THOSE TERMS ARE DEFINED IN SUBDIVISIONS THIRTY-THREE AND THIRTY-FOUR  OF
   10  SECTION  1.20 OF THIS CHAPTER, IN RELATION TO AN APPLICATION FOR EMPLOY-
   11  MENT AS A POLICE OFFICER OR PEACE OFFICER; PROVIDED, HOWEVER, THAT EVERY
   12  PERSON WHO IS AN APPLICANT FOR THE POSITION OF POLICE OFFICER  OR  PEACE
   13  OFFICER  SHALL  BE  FURNISHED  WITH A COPY OF ALL RECORDS OBTAINED UNDER
   14  THIS PARAGRAPH AND AFFORDED AN OPPORTUNITY TO MAKE AN EXPLANATION THERE-
   15  TO.
   16    9. THE COURT SHALL NOT SEAL THE DEFENDANT'S RECORD  PURSUANT  TO  THIS
   17  SECTION WHILE ANY CHARGED OFFENSE IS PENDING.
   18    10. IF, SUBSEQUENT TO THE SEALING OF RECORDS PURSUANT TO THIS SUBDIVI-
   19  SION,  THE  PERSON WHO IS THE SUBJECT OF SUCH RECORDS IS ARRESTED FOR OR
   20  FORMALLY CHARGED WITH ANY MISDEMEANOR OR FELONY  OFFENSE,  SUCH  RECORDS
   21  SHALL  BE  UNSEALED  IMMEDIATELY AND REMAIN UNSEALED; PROVIDED, HOWEVER,
   22  THAT IF SUCH NEW MISDEMEANOR OR FELONY ARREST RESULTS IN  A  TERMINATION
   23  IN  FAVOR  OF  THE  ACCUSED  AS  DEFINED IN SUBDIVISION THREE OF SECTION
   24  160.50 OF THIS ARTICLE OR BY CONVICTION FOR A  NON-CRIMINAL  OFFENSE  AS
   25  DESCRIBED IN SECTION 160.55 OF THIS ARTICLE, SUCH UNSEALED RECORDS SHALL
   26  BE CONDITIONALLY SEALED PURSUANT TO THIS SECTION.
   27    S 3. Subdivision 16 of section 296 of the executive law, as separately
   28  amended  by section 3 of part N and section 14 of part AAA of chapter 56
   29  of the laws of 2009, is amended to read as follows:
   30    16. It shall be an unlawful discriminatory  practice,  unless  specif-
   31  ically required or permitted by statute, for any person, agency, bureau,
   32  corporation or association, including the state and any political subdi-
   33  vision thereof, to make any inquiry about, whether in any form of appli-
   34  cation  or  otherwise,  or  to  act  upon  adversely  to  the individual
   35  involved, any arrest or criminal accusation of such individual not  then
   36  pending  against  that individual which was followed by a termination of
   37  that criminal action or proceeding  in  favor  of  such  individual,  as
   38  defined  in  subdivision two of section 160.50 of the criminal procedure
   39  law, or by a youthful offender adjudication, as defined  in  subdivision
   40  one  of section 720.35 of the criminal procedure law, or by a conviction
   41  for a violation sealed pursuant to section 160.55 of the criminal proce-
   42  dure law or by a conviction which is sealed pursuant to  section  160.58
   43  of the criminal procedure law, OR BY A CONVICTION WHICH IS SEALED PURSU-
   44  ANT  TO SECTION 160.65 OF THE CRIMINAL PROCEDURE LAW, in connection with
   45  the licensing, employment or providing of credit or  insurance  to  such
   46  individual;  provided,  further,  that  no  person  shall be required to
   47  divulge information pertaining to any arrest or criminal  accusation  of
   48  such  individual  not  then  pending  against  that individual which was
   49  followed by a termination of that criminal action or proceeding in favor
   50  of such individual, as defined in subdivision two of section  160.50  of
   51  the  criminal  procedure law, or by a youthful offender adjudication, as
   52  defined in subdivision one of section 720.35 of the  criminal  procedure
   53  law,  or  by  a  conviction  for  a violation sealed pursuant to section
   54  160.55 of the criminal procedure law, or by a conviction which is sealed
   55  pursuant to section 160.58 of  the  criminal  procedure  law,  OR  BY  A
   56  CONVICTION  WHICH  IS  SEALED PURSUANT TO SECTION 160.65 OF THE CRIMINAL
       S. 1609                             5
    1  PROCEDURE LAW. The provisions of this subdivision shall not apply to the
    2  licensing activities of governmental bodies in  relation  to  the  regu-
    3  lation  of  guns, firearms and other deadly weapons or in relation to an
    4  application for employment as a police officer or peace officer as those
    5  terms  are  defined  in  subdivisions  thirty-three  and  thirty-four of
    6  section 1.20 of the criminal procedure law; provided  further  that  the
    7  provisions  of  this  subdivision  shall not apply to an application for
    8  employment or membership in any law enforcement agency with  respect  to
    9  any  arrest  or  criminal  accusation  which  was followed by a youthful
   10  offender adjudication, as defined in subdivision one of  section  720.35
   11  of the criminal procedure law, or by a conviction for a violation sealed
   12  pursuant  to  section  160.55  of  the  criminal  procedure law, or by a
   13  conviction which is sealed pursuant to section 160.58  of  the  criminal
   14  procedure  law,  OR  BY A CONVICTION WHICH IS SEALED PURSUANT TO SECTION
   15  160.65 OF THE CRIMINAL PROCEDURE LAW.
   16    S 4. This act shall take effect on the one hundred eightieth day after
   17  it shall have become a law and shall apply to all convictions  occurring
   18  prior to, on, and after such date.