BILL NUMBER:S5357

TITLE OF BILL:
An act
to amend the executive law and the judiciary law, in relation to
undisposed cases

PURPOSE:
This bill will require DCJS and DCA to refrain from including
undisposed case information on criminal history record reports except
for law enforcement and other specified purposes.

SUMMARY OF PROVISIONS:
Section 1 of the bill adds a new section 845-c
to the Executive Law to prohibit DCJS from including undisposed case
information on criminal history record reports (i.e., rapsheets)
where the report is produced for a non-law enforcement or
non-criminal justice purpose. The bill defines "undisposed case" as a
criminal action or proceeding or an arrest incident that appears on
an individual's criminal history record for which no conviction,
sentence or other final disposition (other than an apparently
unexecuted bench warrant) appears and with respect to which no entry
has been made on the DCJS record for a period of at least five years.
The prohibition also would not apply to records produced by DCJS
solely for bona fide research or internal record keeping purposes.

              

Section 2 of the bill establishes a corresponding requirement for DCA.
It adds a new paragraph (s) to subdivision two of section 212 of the
Judiciary Law to require DCA to refrain from reporting undisposed
cases on criminal history reports it produces except where the report
is prepared for internal record keeping or bona fide research purposes.

Section 3 of the bill provides that the act shall take effect 180 days
after it shall have become a law, and further provides that, prior to
such effective date, DCJS in consultation with DCA shall undertake
measures to update its criminal history records with respect to cases
that have no final disposition reported.

EXISTING LAW:
DCJS is the state repository for criminal history
records and is permitted or required under law in certain
circumstances to search its records and produce a report on an
individual's criminal history record (i.e., a "rapsheet"). Similarly,
DCA is authorized under law to search its criminal court case records
and produce a criminal history record report on the individual whose
record is searched. Under Criminal Procedure Law § 160.50 records
pertaining to criminal actions that have been terminated in favor of
the accused are to be sealed and,subject to certain exceptions, are
not to be released by DCJS or DCA.

These include cases that, following the transmission of arrest
fingerprints to DCJS, 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 some cases, administrative failures occur, leaving
information about cases that have ended in a person's favor, or have
been filed in court but never brought to any final disposition,
unsealed on the person's permanent criminal history record maintained
by DCJS. Attempts to correct these errors and eliminate undisposed
case references often prove unsuccessful because no information about
the cases can be found, either because the parties involved have
destroyed their records, because no records have been generated due
to the preliminary nature of the case or because the case in question
has been deemed dismissed by another court as a result of action
taken in an entirely separate case. Examples of this include cases
where preliminary arrest information but no other
information, not even a docket number, appears on the criminal history
record. The absence of a docket number on a rap sheet where an arrest
is indicated may signify that, after the submission of arrest
fingerprints to DCJS, the prosecutor has elected not to prosecute the
case, or the police have elected not to pursue the arrest. Other
examples include cases where a court docket number appears but no
further action on the case is reflected. In cases actively moving
through the court system, actions taken in the case arraignments,
transfers, removals, indictments, bench warrants - usually appear on
the person's criminal history record.
When an arrest incident appears, or a case has been docketed but no
action has been taken for a period of five years, and no warrant has
been issued, the case should likely have either been dismissed (as
statutory speedy trial requirements would dictate that trial or some
other action take place within that time) or otherwise disposed of.

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
effectively communicate with each other.

According to the Criminal Procedural Law, the arresting agency, the
district attorney, the cleric of the court, and DCA 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 an extended period

of time without anyone's knowledge. As DCJS cannot currently act to
correct or complete the records without information from the relevant
agency, these inaccuracies, in effect, 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 DCA. 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 or criminal history record if the
necessary correctives (the original records) have been purged or are
otherwise unavailable or incomplete.
Such people also lose the protections they may be entitled to under
New York State sealing laws and the Federal and New York State Fair
Credit Reporting Acts. The failure in communication among the various
criminal justice agencies has caused countless individuals to lose
employment, benefits and housing opportunities.

To remedy the problem, this measure would prohibit DCJS and DCA from
including "undisposed case" information, as defined by the bill, in
any report of a criminal history search conducted by the agency
except where the report is produced by DCJS for a "qualified agency"
(or a federal or state law enforcement agency) for a criminal justice
purpose, or by DCJS or DCA for a bona fide research or internal
recordkeeping purpose. In so doing, the bill will effectively address
the administrative failures described above and will help many New
Yorkers lead productive, law-biding lives.

LEGISLATIVE HISTORY:
A.8222 was reported and referred to rules in 2009
and was referred to codes in 2010.
New bill in the Senate.

FISCAL IMPLICATIONS:
To be determined.

EFFECTIVE DATE:
180 days after it shall have become a law.