BILL NUMBER:S3377

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incorrect, outdated warrant information on their record to have that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) ifnone 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
oflater 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 ifthe 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:


2009-2010: S.2655A - Died in Finance.
2009-2010: S.3665A - Died in Codes.
2008:      S.8011A/A.10858A - Died in Codes.

FISCAL IMPLICATIONS:
To be determined.

EFFECTIVE DATE:
January 1, 2013