BILL NUMBER:  S2655A

 TITLE OF BILL :

An act to amend the criminal procedure law, in relation to notice by
the division of criminal justice services


 PURPOSE :

This bill will create a procedure to validate and ensure the accuracy
of a person's permanent criminal record as maintained by the Division
of Criminal Justice Services (DCJS) as it relates to all warrants
issued as part of a criminal proceeding.

 SUMMARY OF PROVISIONS :

Section 1 of the bill adds a new subdivision 7 of section 530.70 of
the criminal procedure law creating a process whereby DCJS is to
verify criminal record information where certain arrest warrant
information contains contradictory information. DCJS is required to
contact various law enforcement entities and the courts in order to
clarify the contradictions. In the event no information is
forthcoming, the arrest warrant will be deemed recalled.

 EXISTING LAW :
              

Under Subsection six of Executive Law §837, the Division of Criminal
Justice Services (DCJS) is required to establish a repository to
maintain a record of all arrests and prosecutions in New York State,
creating the individual's rap sheet. The registry's data includes a
record of all warrants issued as part of a criminal proceeding. Once
these warrants are vacated by the court, this information should then
be sent to DCJS and recorded in the individual's rap sheet.

 JUSTIFICATION :

Due to failures in communication among the various criminal justice
agencies, the process outlined in the Executive Law is not always
followed, resulting in many individuals having rap sheets that list
warrants as active that have actually been recalled.  These mistakes
can cause an individual to be denied employment, housing or public
benefits for which they are eligible. It could also potentially lead
the individual to be mistakenly arrested. The proposed amendment
offers an opportunity for individuals who have incorrect, outdated
warrant information on their record to have that information removed.

Currently, in order to correct warrant-related mistakes of this sort,
an individual must return to the court where their case was heard and
ask the clerk of the court to forward information regarding vacatur of
their warrant to DCJS so that this information may be correctly
reflected on their criminal record. An individual must follow this
process even when it is clear from the criminal record that further
proceedings occurred and that the warrant in question must have been
previously cleared.

This process becomes more complex, or even impossible, where the
phantom warrant involves an old case. Under the Records Retention and
Disposition Schedule issued by the Office of Court Administration
(OCA), courts are ordered to destroy records of all returned warrants
within five years of the date of return or recall. Court case files,
which may also contain records concerning warrants, are also scheduled
to be destroyed after a period of time. This period can be as short a
six years where the case was terminated in favor of the defendant or
resulted in a violation disposition. Even records of cases that ended
in a felony conviction are only retained for 25 years before they are
destroyed. As a result, once the courts no longer have any record of
these warrants, these persons have no opportunity to have this
inaccurate information removed from their record. This legislation
proposes that DCJS establish a system so that:

* For all current and future cases, whenever DCJS has a record that a
case contains an open warrant and then receives a notice of new
proceedings in the case - which makes it nearly certain that the
warrant has already been executed or vacated - but there has been no
notification forwarded to the agency that the warrant has been
vacated, DCJS will:

* Send an automatic notification to all relevant criminal justice
agencies.
* These agencies will have 30 days to establish whether or not the
warrant remains open and respond to DCJS .
If either a) DCJS hears the warrants have been vacated or b) if none
of the agencies provide any information about the warrant at the end
of the 60 days, DCJS will assume that the warrant has in fact been
vacated, and will correct its records to reflect this.

* For older cases that contain an open warrant as well as a record of
later proceedings within the same case, DCJS will follow the same
procedure as above upon receipt of a written request from the person
listed in their rap sheet or their representative.

In addition to the notification process described above, two other
safeguards ensure that individuals whose warrants do in fact remain
legitimately open will not have these warrants improperly vacated.
First, under the OCA record retention policy set forth above, courts
are required to keep records of any warrants that have not been
vacated. Additionally, the court must also keep a record of any case
that remains open for 50 years if the highest listed charge is a
misdemeanor, and 75 years if the highest listed charge is a felony.
One additional safeguard would also exist if the individual in
question had been incarcerated in a New York State facility.
According to regulations issued by the Department of Correctional
Services (DOCS), the individual in question would only have been
eligible for a temporary release program after DOCS contacted any
relevant courts to make sure that any cases that appeared to remain
open, according to their criminal record, had in fact been disposed
of.

 LEGISLATIVE HISTORY :

2008: S.8011-A/A.10858-A.

 FISCAL IMPLICATIONS :

To be determined.

 EFFECTIVE DATE :
January 1, 2012