S T A T E O F N E W Y O R K
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2533
2011-2012 Regular Sessions
I N A S S E M B L Y
January 19, 2011
___________
Introduced by M. of A. MENG -- read once and referred to the Committee
on Codes
AN ACT to amend the criminal procedure law, in relation to the sealing
of certain criminal records
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The criminal procedure law is amended by adding a new
section 160.65 to read as follows:
S 160.65 ORDER UPON TERMINATION OF CRIMINAL ACTION BY THE CONVICTION FOR
APPLICABLE NON-VIOLENT CRIMINAL OFFENSES.
1. AS USED IN THIS SECTION THE FOLLOWING WORDS SHALL HAVE THE FOLLOW-
ING MEANINGS:
(A) AN "ELIGIBLE PERSON" MEANS A PERSON WHO HAS BEEN CONVICTED OF AN
ELIGIBLE FELONY OR AN ELIGIBLE MISDEMEANOR, PROVIDED HOWEVER, THAT NO
PERSON SHALL BE AN ELIGIBLE PERSON WHERE SUCH PERSON HAS BEEN CONVICTED
OF MORE THAN TWO ELIGIBLE FELONIES OR MORE THAN TWO ELIGIBLE MISDEMEA-
NORS OR SUCH PERSON HAS BEEN CONVICTED OF A SPECIFIED OFFENSE. A PERSON
IS NOT AN ELIGIBLE PERSON FOR PURPOSES OF THIS SECTION IF SUCH PERSON
HAS BEEN CONVICTED IN ANY OTHER JURISDICTION OF AN OFFENSE WHICH
INCLUDES ALL OF THE ESSENTIAL ELEMENTS OF ANY SPECIFIED OFFENSE;
(B) "PROGRAM" MEANS THE SECOND CHANCE PROGRAM;
(C) "COMMISSION" MEANS THE SECOND CHANCE COMMISSION. SUCH COMMISSION
SHALL AWARD RELIEF PROVIDED IN THIS SECTION AND, SHALL CONSIST OF FIVE
MEMBERS TO BE APPOINTED FOR TERMS OF THREE YEARS. THE GOVERNOR, THE
TEMPORARY PRESIDENT OF THE SENATE, AND THE SPEAKER OF THE ASSEMBLY SHALL
EACH APPOINT ONE MEMBER OF THE COMMISSION. TWO APPOINTMENTS SHALL BE
MADE BY THE NEW YORK STATE DISTRICT ATTORNEYS ASSOCIATION, ONE OF WHOM
SHALL SERVE AS A GEOGRAPHIC REPRESENTATIVE OF NEW YORK CITY AND ONE OF
WHOM SHALL SERVE AS A GEOGRAPHIC REPRESENTATIVE OF OTHER COUNTIES;
(D) "ELIGIBLE FELONIES" MEANS CRIMINAL POSSESSION OF A CONTROLLED
SUBSTANCE IN THE FIFTH DEGREE AS DEFINED IN SECTION 220.06 OF THE PENAL
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD05532-01-1
A. 2533 2
LAW, CRIMINAL POSSESSION OF A CONTROLLED SUBSTANCE IN THE FOURTH DEGREE
AS DEFINED IN SECTION 220.09 OF THE PENAL LAW, CRIMINAL POSSESSION OF A
CONTROLLED SUBSTANCE IN THE THIRD DEGREE AS DEFINED IN SECTION 220.16 OF
THE PENAL LAW, CRIMINAL POSSESSION OF A CONTROLLED SUBSTANCE IN THE
SECOND DEGREE AS DEFINED IN SECTION 220.18 OF THE PENAL LAW, CRIMINAL
POSSESSION OF A CONTROLLED SUBSTANCE IN THE FIRST DEGREE AS DEFINED IN
SECTION 220.21 OF THE PENAL LAW, CRIMINAL POSSESSION OF PRECURSORS OF
CONTROLLED SUBSTANCES AS DEFINED IN SECTION 220.60 OF THE PENAL LAW,
CRIMINAL SALE OF A CONTROLLED SUBSTANCE IN THE FIFTH DEGREE AS DEFINED
IN SECTION 220.31 OF THE PENAL LAW, CRIMINAL SALE OF A CONTROLLED
SUBSTANCE IN THE FOURTH DEGREE AS DEFINED IN SECTION 220.34 OF THE PENAL
LAW, CRIMINAL SALE OF A CONTROLLED SUBSTANCE IN THE THIRD DEGREE AS
DEFINED IN SECTION 220.39 OF THE PENAL LAW, CRIMINAL SALE OF A
CONTROLLED SUBSTANCE IN THE SECOND DEGREE AS DEFINED IN SECTION 220.41
OF THE PENAL LAW, CRIMINAL SALE OF A CONTROLLED SUBSTANCE IN THE FIRST
DEGREE AS DEFINED IN SECTION 220.43 OF THE PENAL LAW, CRIMINAL
POSSESSION OF MARIHUANA IN THE THIRD DEGREE AS DEFINED IN SECTION 221.20
OF THE PENAL LAW, CRIMINAL POSSESSION OF MARIHUANA IN THE SECOND DEGREE
AS DEFINED IN SECTION 221.25 OF THE PENAL LAW, CRIMINAL POSSESSION OF
MARIHUANA IN THE FIRST DEGREE AS DEFINED IN SECTION 221.30 OF THE PENAL
LAW, CRIMINAL SALE OF MARIHUANA IN THE THIRD DEGREE AS DEFINED IN
SECTION 221.45 OF THE PENAL LAW, CRIMINAL SALE OF MARIHUANA IN THE
SECOND DEGREE AS DEFINED IN SECTION 221.50 OF THE PENAL LAW, CRIMINAL
SALE OF MARIHUANA IN THE FIRST DEGREE AS DEFINED IN SECTION 221.55 OF
THE PENAL LAW, CRIMINAL INJECTION OF A NARCOTIC DRUG AS DEFINED IN
SECTION 220.46 OF THE PENAL LAW, CRIMINALLY USING DRUG PARAPHERNALIA IN
THE FIRST DEGREE AS DEFINED IN SECTION 220.55 OF THE PENAL LAW, AND
CRIMINAL SALE OF A PRESCRIPTION FOR A CONTROLLED SUBSTANCE AS DEFINED IN
SECTION 220.65 OF THE PENAL LAW, PROVIDED HOWEVER, THAT "ELIGIBLE FELO-
NIES" SHALL NOT INCLUDE ANY OF THE ENUMERATED CRIMES IN THIS PARAGRAPH
WHERE THE CRIME INVOLVED THE SALE OF A CONTROLLED SUBSTANCE OR MARIHUANA
TO A PERSON UNDER THE AGE OF SIXTEEN.
(E) "ELIGIBLE MISDEMEANORS" MEANS CRIMINAL POSSESSION OF A CONTROLLED
SUBSTANCE IN THE SEVENTH DEGREE AS DEFINED IN SECTION 220.03 OF THE
PENAL LAW, CRIMINAL POSSESSION OF MARIHUANA IN THE FIFTH DEGREE AS
DEFINED IN SECTION 221.10 OF THE PENAL LAW, CRIMINAL POSSESSION OF MARI-
HUANA IN THE FOURTH DEGREE AS DEFINED IN SECTION 221.15 OF THE PENAL
LAW, CRIMINAL SALE OF MARIHUANA IN THE FIFTH DEGREE AS DEFINED IN
SECTION 221.35 OF THE PENAL LAW, CRIMINAL SALE OF MARIHUANA IN THE
FOURTH DEGREE AS DEFINED IN SECTION 221.40 OF THE PENAL LAW, CRIMINALLY
USING DRUG PARAPHERNALIA IN THE SECOND DEGREE AS DEFINED IN SECTION
220.50 OF THE PENAL LAW, AND CRIMINALLY POSSESSING A HYPODERMIC INSTRU-
MENT AS DEFINED IN SECTION 220.45 OF THE PENAL LAW, PROVIDED HOWEVER,
THAT "ELIGIBLE MISDEMEANOR" SHALL NOT INCLUDE ANY OF THE ENUMERATED
CRIMES IN THIS PARAGRAPH WHERE THE CRIME INVOLVED THE SALE OF A
CONTROLLED SUBSTANCE OR MARIHUANA TO A PERSON UNDER THE AGE OF SIXTEEN;
AND
(F) "SPECIFIED OFFENSE" MEANS AN A-1 FELONY OFFENSE OTHER THAN AN
OFFENSE CONTAINED IN ARTICLE 220 OF THE PENAL LAW, A VIOLENT FELONY
OFFENSE AS DEFINED IN SECTION 70.02 OF THE PENAL LAW, MANSLAUGHTER IN
THE SECOND DEGREE, VEHICULAR MANSLAUGHTER IN THE SECOND DEGREE, CRIMI-
NALLY NEGLIGENT HOMICIDE, AN OFFENSE DEFINED IN ARTICLE 130 OF THE PENAL
LAW, INCEST, OR AN OFFENSE DEFINED IN ARTICLE 263 OF THE PENAL LAW.
2. AN ELIGIBLE PERSON MAY HAVE ALL OFFICIAL RECORDS, PAPERS, DNA
SAMPLES AND JUDGMENTS AND ORDERS OF A COURT PERTAINING TO AN ELIGIBLE
FELONY OR ELIGIBLE MISDEMEANOR, EXCLUDING PUBLISHED COURT DECISIONS OR
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OPINIONS OR RECORDS AND BRIEFS ON APPEAL, RELATING TO THE ARREST OR
PROSECUTION OF SUCH PERSON FOR SUCH ELIGIBLE FELONY OR ELIGIBLE MISDE-
MEANOR, INCLUDING ALL DUPLICATES AND COPIES THEREOF ON FILE WITH THE
DIVISION OF CRIMINAL JUSTICE SERVICES, SEALED FOR ALL PURPOSES OTHER
THAN THOSE RELATED TO LAW ENFORCEMENT AND CRIMINAL PROSECUTION WHEN:
(A) A MINIMUM TIME PERIOD OF FIVE YEARS COMMENCING UPON THE MOST
RECENT DATE OF SENTENCE OR PAYMENT OF FINE FOR THOSE PERSONS WHO HAVE
NOT BEEN SANCTIONED TO A PERIOD OF INCARCERATION AND FOR OTHER INSTANCES
COMMENCING UPON THE COMPLETION OF SUCH PERSON'S TERM OF IMPRISONMENT HAS
ELAPSED WHEN SUCH PERSON HAS NOT BEEN SUBSEQUENTLY CONVICTED OF ANY
OTHER FELONY OR MISDEMEANOR OR TWO OR MORE NON-VEHICLE AND TRAFFIC LAW
VIOLATIONS; AND
(B) SUCH PERSON IS ELIGIBLE TO APPLY FOR A SEALING MOTION PURSUANT TO
SUBDIVISION THREE OF THIS SECTION.
3. TO BE ELIGIBLE TO APPLY FOR A SEALING MOTION FOR AN ELIGIBLE FELONY
OR ELIGIBLE MISDEMEANOR, THE PERSON MUST PRESENT VALID DOCUMENTATION TO
THE COMMISSION EVIDENCING SATISFACTORY FULFILLMENT AND PARTICIPATION IN
THE PROGRAM, INCLUDING EVIDENCE THAT THE PERSON IS FREE OF ALCOHOL OR
DRUG DEPENDENCE AT TIME OF APPLICATION FOR SEALING. PROGRAM REQUIREMENTS
INCLUDE COMPLETION OF AN INDIVIDUAL REHABILITATION PLAN THAT IS
PERFORMED AND MONITORED BY AN APPROVED JOB CORPS PROGRAM OR AN ACCRED-
ITED LIST OF CONTRACTORS APPROVED BY THE DIVISION OF CRIMINAL JUSTICE
SERVICES AND THAT INCLUDES:
(A) SUCCESSFUL COMPLETION OF A PUBLIC SERVICE COMPONENT OF AT LEAST
ONE YEAR;
(B) SUCCESSFUL COMPLETION OF ALCOHOL OR SUBSTANCE ABUSE TREATMENT AT A
PROGRAM LICENSED BY THE OFFICE OF ALCOHOLISM AND SUBSTANCE ABUSE
SERVICES, PURSUANT TO ARTICLE NINETEEN OF THE MENTAL HYGIENE LAW, IF
MANDATORY SCREENING OR ASSESSMENT INDICATES TREATMENT IS NECESSARY, AND
REGULAR MONITORING OF SUCH PERSONS FOR A PERIOD OF AT LEAST ONE YEAR,
WHICH CAN INCLUDE DRUG TESTING IN ORDER TO ENSURE CONTINUED SOBRIETY;
AND
(C) ATTAINMENT OF A GED OR HIGH SCHOOL DIPLOMA, IF NOT ALREADY
OBTAINED.
4. A PERSON WHO HAS SATISFACTORILY MET ALL THE REQUIREMENTS OF THIS
SECTION MAY UPON MOTION APPLY TO THE COMMISSION FOR AN ORDER GRANTING TO
SUCH PERSON THE RELIEF SET FORTH IN SUBDIVISION TWO OF THIS SECTION. THE
APPLICANT SHALL GIVE NOT LESS THAN SIXTY DAYS NOTICE TO THE DISTRICT
ATTORNEY WITHIN EACH JURISDICTION THE APPLICANT HAS A CONVICTION AND THE
ATTORNEY GENERAL, IN SUCH CONVICTIONS AS THE ATTORNEY GENERAL HAS PROSE-
CUTED, OF THE INTENTION TO REQUEST SUCH RELIEF. SUCH ORDER SHALL BE
GRANTED UNLESS THE DISTRICT ATTORNEY WITHIN TWENTY DAYS NOTICE TO SUCH
PERSON OR HIS OR HER ATTORNEY DEMONSTRATES TO THE SATISFACTION OF THE
COMMISSION THAT THE INTERESTS OF JUSTICE REQUIRE OTHERWISE, OR THE
COMMISSION ON ITS OWN MOTION WITH NOT LESS THAN TWENTY DAYS NOTICE TO
SUCH PERSON OR HIS OR HER ATTORNEY DETERMINES THAT THE INTERESTS OF
JUSTICE REQUIRE OTHERWISE. THE COMMISSION SHALL STATE THE REASONS FOR
SUCH DETERMINATION ON THE RECORD, THE RECORDS SHALL BE ORDERED SEALED
AND THE CLERK OF THE COURT WHEREIN SUCH CRIMINAL ACTION OR PROCEEDING
WAS TERMINATED SHALL IMMEDIATELY NOTIFY THE COMMISSIONER OF THE DIVISION
OF CRIMINAL JUSTICE SERVICES THAT THE RECORD OF SUCH ACTION OR PROCEED-
ING HAS BEEN SEALED.
5. THE PETITIONER AND THE DISTRICT ATTORNEY CAN APPEAL THE DECISION OF
THE COMMISSION TO GRANT OR DENY THE SEALING MOTION. SUCH APPEAL MUST
TAKE PLACE WITHIN THIRTY DAYS OF THE COMMISSION'S DECISION AND MUST BE
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MADE AS AN ARTICLE SEVENTY-EIGHT PROCEEDING IN THE JURISDICTION WHERE
SUCH PERSON'S MOST RECENT CONVICTION WAS ADJUDICATED.
6. UPON RECEIPT OF NOTIFICATION OF SUCH SEALING:
(A) ALL OFFICIAL RECORDS AND PAPERS, INCLUDING JUDGMENTS AND ORDERS OF
A COURT BUT NOT INCLUDING PUBLISHED COURT DECISIONS OR OPINIONS OR
RECORDS AND BRIEFS ON APPEAL, RELATING TO THE ARREST OR PROSECUTION,
INCLUDING ALL DUPLICATES AND COPIES THEREOF, ON FILE WITH THE DIVISION
OF CRIMINAL JUSTICE SERVICES, ANY COURT, POLICE AGENCY, OR PROSECUTOR'S
OFFICE SHALL BE SEALED AND NOT MADE AVAILABLE TO ANY PERSON OR PUBLIC OR
PRIVATE AGENCY; AND
(B) SUCH RECORDS SHALL BE MADE AVAILABLE TO THE PERSON ACCUSED OR TO
SUCH PERSON'S DESIGNATED AGENT, AND SHALL BE MADE AVAILABLE TO (I) A
PROSECUTOR, A LAW ENFORCEMENT AGENCY, OR A COURT WHICH HAS RESPONSIBIL-
ITY FOR CRIMINALLY INVESTIGATING, PROSECUTING, OR ADJUDICATING THE INDI-
VIDUAL; (II) ANY STATE OR LOCAL OFFICE OR AGENCY WITH RESPONSIBILITY FOR
THE ISSUANCE OF LICENSES TO POSSESS GUNS, WHEN THE ACCUSED HAS MADE
APPLICATION FOR SUCH A LICENSE; OR (III) ANY PROSPECTIVE CITY, STATE, OR
FEDERAL EMPLOYER OR AGENCY, INVOLVED IN INVESTIGATING AND/OR PROSECUTING
UNDER CRIMINAL OR CIVIL STATUTES INCLUDING EMPLOYERS OF POLICE OFFICERS
OR PEACE OFFICERS AS DEFINED IN SUBDIVISIONS THIRTY-THREE AND
THIRTY-FOUR OF SECTION 1.20 OF THIS CHAPTER, IN RELATION TO AN APPLICA-
TION FOR EMPLOYMENT AS AN EMPLOYEE OF A CITY, STATE OR FEDERAL EMPLOYER
OR AGENCY INVOLVED IN INVESTIGATING AND/OR PROSECUTING UNDER CRIMINAL OR
CIVIL STATUTES INCLUDING AS A POLICE OFFICER OR PEACE OFFICER; PROVIDED
HOWEVER, THAT EVERY PERSON WHO IS AN APPLICANT FOR THE POSITION OF
POLICE OFFICER, PEACE OFFICER, OR ANY OTHER PROSPECTIVE CITY, STATE OR
FEDERAL EMPLOYER OR AGENCY, INVOLVED IN INVESTIGATING AND/OR PROSECUTING
UNDER CRIMINAL OR CIVIL STATUTES SHALL BE FURNISHED WITH A COPY OF ALL
RECORDS OBTAINED UNDER THIS PARAGRAPH AND AFFORDED AN OPPORTUNITY TO
MAKE AN EXPLANATION THERETO.
7. EXCEPT AS PROVIDED IN PARAGRAPH (B) OF SUBDIVISION SIX OF THIS
SECTION, THE SEALED CONVICTION OR CONVICTIONS SHALL NOT OPERATE AS A
DISQUALIFICATION OF ANY PERSON TO PURSUE OR ENGAGE IN ANY LAWFUL ACTIV-
ITY, OCCUPATION, PROFESSION, OR CALLING. EXCEPT WHERE SPECIFICALLY
REQUIRED OR PERMITTED BY STATUTE OR UPON SPECIFIC AUTHORIZATION OF A
SUPERIOR COURT, NO SUCH PERSON SHALL BE REQUIRED TO DIVULGE INFORMATION
PERTAINING TO THE SEALED RECORD. SUCH PERSON SHALL BE PERMITTED TO
RESPOND IN THE NEGATIVE TO THE QUESTION, "HAVE YOU EVER BEEN CONVICTED
OF A MISDEMEANOR OR A FELONY?", OR TO ANY QUESTION WITH THE SAME
SUBSTANTIVE CONTENTS.
8. THE KNOWING AND INTENTIONAL DISSEMINATION OF SEALED INFORMATION OR
THE IMPROPER ACQUISITION OF INFORMATION THAT HAS BEEN SEALED WILL RESULT
IN A PENALTY OF A FINE UP TO ONE THOUSAND DOLLARS FOR EACH SUCH
VIOLATION.
9. A PERSON PARTICIPATING IN THIS PROGRAM WILL BE REQUIRED TO PAY A
PORTION OF THE COSTS OF PARTICIPATING IN THE PROGRAM AND FILING FEES TO
THE COMMISSION, CONTINGENT UPON SUCH PERSON'S INCOME AND ABILITY TO PAY.
10. THE SEALING ORDER WILL BE AUTOMATICALLY REPEALED AND THE DIVISION
OF CRIMINAL JUSTICE SERVICES WILL UNSEAL ANY SUCH RECORDS THAT HAD BEEN
PREVIOUSLY SEALED BY VIRTUE OF PARTICIPATION IN THIS PROGRAM ON THE
SUBSEQUENT CONVICTION OF SUCH PERSON FOR ANY MISDEMEANOR OR FELONY
OFFENSE. IN THE EVENT THAT SUCH A PERSON IS SUBSEQUENTLY CONVICTED AND
SENTENCED TO A TERM OF PROBATION, THE PROBATION OFFICER ASSIGNED TO SUCH
PERSON SHALL BE RESPONSIBLE FOR NOTIFYING SUCH PERSON'S CURRENT EMPLOYER
THAT SUCH PERSON'S CRIMINAL RECORD HAS BEEN UNSEALED.
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11. AN ELIGIBLE PERSON MAY APPLY FOR RELIEF UNDER THIS SECTION FOR
CRIMINAL OFFENSES WHICH OCCURRED ANY TIME PRIOR TO THE EFFECTIVE DATE OF
THIS SECTION.
S 2. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law; provided however that
any eligible person may apply for relief pursuant to this act for crimi-
nal offenses occurring prior to the effective date of this act.