S T A T E   O F   N E W   Y O R K
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                                  4136

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            January 30, 2009
                               ___________

Introduced  by  M.  of  A.  AMEDORE, ALFANO, KOLB, TOBACCO, McDONOUGH --
  Multi-Sponsored by -- M.  of A. ERRIGO, REILICH, WALKER --  read  once
  and referred to the Committee on Children and Families

AN  ACT  to  amend  the  social  services  law and the executive law, in
  relation to day care for children

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1. The social services law is amended by adding a new section
378-b to read as follows:
  S 378-B. CERTIFICATES AND LICENSES; RECORD  ACCESS;  PROHIBITIONS.  1.
NOTWITHSTANDING  THE  PROVISIONS  OF  ANY LAW, RULE OR REGULATION TO THE
CONTRARY, NO LICENSE,  PERMIT,  CERTIFICATE  OR  REGISTRATION  SHALL  BE
ISSUED  BY  THE  DEPARTMENT  OR ANY AUTHORIZED AGENCY TO AN APPLICANT TO
OPERATE A CHILD DAY CARE CENTER, HEAD  START  DAY  CARE  CENTER  PROGRAM
FUNDED  PURSUANT  TO  TITLE V OF THE FEDERAL ECONOMIC OPPORTUNITY ACT OF
1964, SCHOOL AGE CHILD CARE PROGRAM, GROUP FAMILY DAY CARE HOME,  FAMILY
DAY  CARE  HOME,  NOR  WHERE  GRANTED,  SHALL  ANY SUCH LICENSE, PERMIT,
CERTIFICATE OR REGISTRATION BE RENEWED  FOR  ANY  SUCH  ENTITY,  IF  THE
APPLICANT AND/OR OPERATOR THEREOF SHALL HAVE BEEN CONVICTED OF A VIOLENT
FELONY  OFFENSE  AS  DEFINED IN SECTION 70.02 OF THE PENAL LAW, OR SHALL
HAVE BEEN CONVICTED OF A MISDEMEANOR OR FELONY AS  DEFINED  IN  ARTICLES
ONE  HUNDRED  TWENTY,  ONE  HUNDRED TWENTY-FIVE, ONE HUNDRED THIRTY, ONE
HUNDRED THIRTY-FIVE, TWO HUNDRED FIVE, TWO HUNDRED TWENTY,  TWO  HUNDRED
TWENTY-ONE,  TWO  HUNDRED  THIRTY,  TWO HUNDRED THIRTY-FIVE, TWO HUNDRED
FORTY-FIVE, TWO HUNDRED  FIFTY-FIVE,  TWO  HUNDRED  SIXTY,  TWO  HUNDRED
SIXTY-THREE AND TWO HUNDRED SIXTY-FIVE OF THE PENAL LAW.
  2. NO SUCH ENTITY SHALL EMPLOY ANY ASSISTANT OR EMPLOYEE, NOR SHALL IT
ACCEPT  ANY  PERSON  FOR  VOLUNTEER ACTIVITY IN ANY SUCH ENTITY, IF SUCH
ASSISTANT, EMPLOYEE OR VOLUNTEER HAS BEEN CONVICTED OF  ANY  OFFENSE  AS
ENUMERATED  IN  SUBDIVISION  ONE OF THIS SECTION.  EVERY SUCH ENTITY, AS
ENUMERATED IN SUBDIVISION ONE OF THIS SECTION,   MAY  OBTAIN,  WITH  THE

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD04787-01-9
              

A. 4136                             2

CONSENT  OF  THE  VOLUNTEER  OR  PROSPECTIVE  VOLUNTEER  OR  EMPLOYEE OR
PROSPECTIVE EMPLOYEE OF SUCH ENTITY, THE CONVICTION  RECORDS  MAINTAINED
BY  THE  DIVISION OF CRIMINAL JUSTICE SERVICES PERTAINING TO SUCH VOLUN-
TEER  OR  PROSPECTIVE  VOLUNTEER  OR  EMPLOYEE  OR PROSPECTIVE EMPLOYEE;
PROVIDED, HOWEVER, THAT CONVICTION RECORDS SHALL BE REQUESTED  ONLY  FOR
VOLUNTEERS OR PROSPECTIVE VOLUNTEERS, EMPLOYEES OR PROSPECTIVE EMPLOYEES
WHO  HAVE  DIRECT  CONTACT,  AS DETERMINED BY SUCH ENTITY, WITH CHILDREN
SERVED BY SUCH ENTITY. THE FEE FOR SUCH RECORD SHALL  BE  PAID  BY  SUCH
ENTITY.
  3.  THE  CONVICTION RECORD SHALL BE MARKED "CONFIDENTIAL" UPON RECEIPT
BY THE PERSON WHO HAS REQUESTED SUCH RECORDS.  ONLY  SUCH  PERSON  SHALL
HAVE  ACCESS TO SUCH CONVICTION RECORD, AND SUCH CONVICTION RECORD SHALL
AT ALL TIMES BE MAINTAINED IN A SECURE PLACE IN  ORDER  TO  INSURE  SUCH
CONFIDENTIALITY.  A  PERSON  WHO  WILFULLY  VIOLATES THE CONFIDENTIALITY
REQUIRED BY THIS SUBDIVISION SHALL BE GUILTY OF A CLASS E FELONY.
  4. PRIOR TO REQUESTING A CONVICTION RECORD OF A VOLUNTEER OR  PROSPEC-
TIVE  VOLUNTEER OR EMPLOYEE OR PROSPECTIVE EMPLOYEE FROM THE DIVISION OF
CRIMINAL JUSTICE SERVICES, A REPRESENTATIVE OF SUCH ENTITY  SHALL INFORM
ANY SUCH PERSON WHO WORKS  DIRECTLY  WITH  CHILDREN  IN  ANY  ACTIVITIES
AUTHORIZED  BY  SUCH ENTITY   THAT A REQUEST FOR A CONVICTION RECORD AND
REVIEW THEREOF IS REQUIRED IN ORDER FOR SUCH PERSON TO CONTINUE  IN  THE
SAME  CAPACITY  OR  FOR  SUCH  PROSPECTIVE  VOLUNTEER  OR EMPLOYEE TO BE
ACCEPTED BY SUCH ENTITY. SUCH PERSON SHALL SIGN A FORM PROVIDED  BY  THE
DIVISION  OF CRIMINAL JUSTICE SERVICES STATING THAT SUCH PERSON HAS BEEN
INFORMED OF THE REASON FOR A REQUEST FOR HIS OR  HER  CONVICTION  RECORD
AND CONSENTS TO SUCH REQUEST. SUCH FORM SHALL ACCOMPANY EACH REQUEST FOR
A  CONVICTION  RECORD  MADE  BY THE PERSON OF SUCH ENTITY REQUESTING THE
RECORD.
  5. AFTER BEING INFORMED OF THE REQUIREMENT FOR SUCH ENTITY  TO  OBTAIN
HIS OR HER CONVICTION RECORD AND BEFORE SUCH PERSON GIVES CONSENT TO THE
PROVISION OF SUCH RECORD TO SUCH ENTITY, A PERSON MAY HAVE ACCESS TO HIS
OR  HER  CONVICTION  RECORD  AS  MAINTAINED  BY THE DIVISION OF CRIMINAL
JUSTICE SERVICES PURSUANT TO  THE  PROCEDURES  OF  SUCH  DIVISION.  SUCH
PERSON SHALL BE PROVIDED WITH ALL NECESSARY INFORMATION REGARDING ACCESS
TO  SUCH  RECORDS  BY A REPRESENTATIVE OF SUCH ENTITY. SUCH PERSON SHALL
ALSO BE PROVIDED BY SUCH DIVISION WITH INFORMATION REGARDING  PROCEDURES
FOR  SUCH  PERSON  TO  VERIFY  THE ACCURACY OF SUCH RECORDS. SUCH PERSON
SHALL NOTIFY SUCH ENTITY IF HE OR SHE WISHES TO HAVE ACCESS  TO  HIS  OR
HER  CONVICTION  RECORD PRIOR TO GIVING CONSENT TO SUCH ENTITY'S REQUEST
FOR SUCH RECORD.
  6. A PROSPECTIVE VOLUNTEER OR EMPLOYEE MAY WITHDRAW FROM THE  APPLICA-
TION  PROCESS,  WHETHER  OR  NOT  HE OR SHE HAS HAD ACCESS TO HIS OR HER
CONVICTION RECORD AND WHETHER OR NOT SUCH RECORD HAS  BEEN  RECEIVED  BY
SUCH  ENTITY, WITHOUT PREJUDICE. IF THE CONVICTION RECORD OF SUCH PERSON
HAS BEEN RECEIVED BY SUCH ENTITY, THE PERSON DESIGNATED BY  SUCH  ENTITY
TO  HAVE  ACCESS  TO CONVICTION RECORDS SHALL DESTROY SUCH RECORD IF THE
PROSPECTIVE VOLUNTEER OR EMPLOYEE IS NOT HIRED AND/OR ACCEPTED  BY  SUCH
ENTITY OR WITHDRAWS FROM THE APPLICATION PROCESS.
  7.  THE  CONVICTION  RECORD OF SUCH A PERSON SHALL BE DESTROYED BY THE
PERSON DESIGNATED BY SUCH ENTITY TO HAVE ACCESS  TO  CONVICTION  RECORDS
WHEN  SUCH VOLUNTEER OR EMPLOYEE NO LONGER HAS DIRECT CONTACT WITH CHIL-
DREN SERVED BY SUCH ENTITY.
  8. THE PROVISIONS OF THIS SECTION SHALL NOT, HOWEVER, BE APPLICABLE TO
ANY PERSON WHO HAS A MINOR CHILD UNDER THE CARE AND SUPERVISION OF  SUCH
ENTITY WHERE HE OR SHE VOLUNTEERS OR IS EMPLOYED OR SEEKS EMPLOYMENT.

A. 4136                             3

  9.  THE  DIVISION  OF  CRIMINAL  JUSTICE SERVICES SHALL RESPOND TO ANY
REQUEST FOR A CONVICTION RECORD WHICH IS ACCOMPANIED BY A FORM SIGNED BY
THE SUBJECT OF SUCH REQUEST CONSENTING TO THE PROVISION OF  SUCH  RECORD
MADE PURSUANT TO THIS SECTION WITHIN FOURTEEN DAYS AFTER SUCH INQUIRY IS
RECEIVED.   THE COMMISSIONER OF SUCH DIVISION SHALL PROMULGATE RULES AND
REGULATIONS PROVIDING FOR A HEARING   FOR  A  PROSPECTIVE  VOLUNTEER  OR
VOLUNTEER  OR EMPLOYEE OR PROSPECTIVE EMPLOYEE BEFORE REPRESENTATIVES OF
SUCH DIVISION AND THE DEPARTMENT FOR PURPOSES OF VERIFYING THE  ACCURACY
OF HIS OR HER CONVICTION RECORD AND FOR ACCESS BY SUCH PERSONS TO PERTI-
NENT DOCUMENTS RELATED THERETO.
  10.  FOR  PURPOSES OF THIS SECTION, "CONVICTION RECORD" SHALL MEAN ANY
RECORD MAINTAINED BY  THE  DIVISION  OF  CRIMINAL  JUSTICE  SERVICES  OF
CONVICTIONS OF A CRIME IN VIOLATION OF THE PENAL LAW OR ANY OTHER LAW OF
ANOTHER JURISDICTION WHICH, IF COMMITTED IN THIS STATE, WOULD CONSTITUTE
A CRIME.
  S  2.  Subdivision 8-a of section 837 of the executive law, as amended
chapter 561 of the laws of 2006, is amended to read as follows:
  8-a. Charge a fee when, pursuant to statute or the regulations of  the
division,  it  conducts  a  search  of  its criminal history records and
returns a report thereon in connection with an application  for  employ-
ment  or  for a license or permit OR RETURNS A CONVICTION REPORT THEREON
AS REQUIRED BY SECTION  THREE  HUNDRED  SEVENTY-EIGHT-B  OF  THE  SOCIAL
SERVICES  LAW.    The  division  shall adopt and may, from time to time,
amend a schedule of such fees which shall be in  amounts  determined  by
the  division  to  be  reasonably related to the cost of conducting such
searches and returning reports thereon but, in no event, shall any  such
fee  exceed  twenty-five  dollars  and  an additional surcharge of fifty
dollars. The comptroller is hereby authorized to deposit such fees  into
the  general  fund,  provided,  however, that the monies received by the
division of criminal justice services  for  payment  of  the  additional
surcharge shall be deposited in equal amounts to the general fund and to
the  fingerprint  identification and technology account. Notwithstanding
the foregoing, the division shall not request  or  accept  any  fee  for
searching  its  records and supplying a criminal history report pursuant
to section two hundred fifty-one-b of the general business law  relating
to  participating  in  flight  instruction at any aeronautical facility,
flight school or institution of higher learning.
  S 3. This act shall take effect on the one hundred twentieth day after
it shall have become a law provided, however, that the  commissioner  of
the  division  of  criminal  justice services shall promulgate rules and
regulations prior to such effective  date  necessary  to  implement  the
provisions of this act.