BILL NUMBER:  S2656

 TITLE OF BILL :

An act to amend the criminal procedure law, in relation to termination
of criminal action in favor of the accused


 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).

 SUMMARY OF PROVISIONS :

Section 1 of the bill adds a new subdivision 5 of Section 160.50 of
the criminal procedure law creating a process whereby DCJS is to
verify criminal record information where docket number or other arrest
information is missing. DCJS is required to contact various law
enforcement entities and the courts in order to seek the missing
information. In the event no information is forthcoming, the arrest
will be deemed terminated in favor of the accused and the records
sealed.

The new subdivision also requires DCJS to verify criminal record
              

information where an accusatory instrument has been filed and the last
action of the case is not the issuance of a bench warrant. Under these
circumstances, one year after the last action in the case, where no
action has been taken on the case and no disposition has been
recorded, DCJS is required to contact various law enforcement entities
and the courts in order to seek the missing information. In the event
no information is forthcoming, the criminal action or proceeding will
be deemed terminated in favor of the accused and the records sealed.

Section 2 of the bill is the effective date.

 EXISTING LAW :

Under Criminal Procedure Law § 160.50 records pertaining to criminal
actions that have been terminated in favor of the accused are to be
sealed. These include cases that prosecutors elect not to prosecute
(CPL §160.5(3)(i)) and arrests that the police elect not to pursue
(CPL § 160.50(3)(j)).

 JUSTIFICATION :

Although the law provides for the sealing of certain records, in many
cases, administrative failures occur, leaving information about these
and other cases that have ended in a person's favor unsealed on the
person's permanent criminal record (also known as a rap sheet)
maintained by the Division of Criminal Justice Services (DCJS).

Attempts to correct these errors often prove unsuccessful because no
information about the cases can be found, either because the parties
involved have destroyed their records or because no records have been
generated because of the preliminary nature of the case. These
permanent inaccuracies on a person's record often lead to a loss of
employment and housing opportunities.

In order to remedy this problem, it is proposed that CPL §160.50 be
amended and a process be put in place for correcting the errors and
inaccurate information that appear on rap sheets.

Examples include: Cases where Arrest Information but No Docket Number
Appears: In many cases, rap sheets only contain information about
arrests. No other information, not even a docket number, appears. No
docket number on a rap sheet most likely signifies either that the
prosecutor has elected not to prosecute the case, or that the police
have elected not to pursue the arrest.

In these instances, for cases generated after the effective date of
this legislation, it is proposed that six months after the date of
arrest, DCJS send an automatic notification to all relevant criminal
justice agencies - the arresting agency, the district attorney, the
clerk of the court, the local correctional facility, the State
Department of Corrections (DOCS), and the Office of Court
Administration (OCA) - asking whether the case remains open. If, after
60 days, the parties have not responded, the case shall be considered
dismissed and will be sealed by DCJS.  If any of the relevant agencies
provide new information, the record will be updated to include this
information.

For cases generated before the effective date of this legislation, the
individual will have the right to petition DCJS to have their case
sealed. DCJS will then follow the same procedure listed above. In each
circumstance, DCJS will notify all relevant criminal justice agencies
when the case has been sealed.

Cases Where a Docket Number Appears but No Action has been Taken on
the Case: In cases actively moving through the court system, actions
taken in the case - arraignments, transfers, indictments, bench
warrants usually appear on the person's criminal record. When a case
has been docketed but no action has been taken for a year, and no
warrant exists, the case should have either been dismissed, as speedy
trial requirements would dictate that some action take place within
that time, or disposed of.

In these instances, for cases generated after the effective date of
this legislation, it is proposed that after a year from the date of
the last court proceeding, DCJS send an automatic notification to all
relevant criminal justice agencies - the arresting agency, the
district attorney, the clerk of the court, the local correctional
facilities, DOCS, and OCA - asking whether the case remains open. If,
after 60 days, the parties have not responded, the case shall be
sealed by DCJS.

If any of the relevant agencies provide new information, the record
will be updated to include this information.

For cases generated before the effective date of this legislation, the
individual will have the right to petition DCJS to have the case
sealed. DCJS will then follow the same procedure listed above. In each
circumstance, DCJS will notify all relevant criminal justice agencies
when the case has been sealed.

In an age where the criminal history background check is almost
universal, New York's sealing laws act as a guard against illegal
workplace discrimination by preventing the inappropriate disclosure or
use by employers or licensing agencies of records of arrest that
resulted either in a violation (non-criminal) conviction or were
terminated in a person's favor.

However, the sealing laws are only effective if the various entities
in the criminal justice system communicate with each other. According
to Criminal Procedural Law, the arresting agency, the district
attorney, the clerk of the court, and OCA are all responsible for
reporting to DCJS that certain criminal actions ended in a person's
favor. Administrative failures do occur, however, and sometimes these
agencies fail to update DCJS as required. Since there is no current
system for ensuring that agencies update DCJS, many records at DCJS
remain inaccurate for a long time without anyone's knowledge. As DCJS
cannot currently act without information from the relevant agency,
these inaccuracies become permanent once enough time has passed for
the criminal justice agency involved to be able to destroy the
original record according to its own record retention schedule. In
situations where the case has been terminated in a person's favor, the
original record may be destroyed after only six years by the courts
and OCA. Other agencies, including the police and the District
Attorneys' Offices have their own record retention schedules.

As a result, people with permanent inaccuracies on their rap sheet are
in limbo: they cannot contest inaccurate or incomplete information on
their rap sheet if the necessary correctives (the original records)
have been purged. Such people also lose the protection they are
entitled to under New York State sealing laws and the Federal and New
York State Fair Credit Reporting Acts.

To remedy this problem, a system is proposed that will identify these
incomplete records and correct the error, either by entering the
correct disposition or sealing the record, when appropriate. The
amendment would require that DCJS contact affected agencies and the
courts before sealing a record. DOCS currently retains the
incarceration information of people with felony convictions for more
than thirty years.

The failure in communication among the various criminal justice
agencies has caused countless individuals to lose employment, benefits
and housing opportunities. This proposal corrects these administrative
failures and will help many New Yorkers lead productive, law-biding
lives.

 LEGISLATIVE HISTORY :

2008: S.8009-A/A.10859-A.

 FISCAL IMPLICATIONS :

To be determined.

 EFFECTIVE DATE :
January 1, 2011.