S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  8505

                          I N  A S S E M B L Y

                            January 17, 2014
                               ___________

Introduced by M. of A. LENTOL -- read once and referred to the Committee
  on Children and Families

AN  ACT to amend the social services law, the criminal procedure law and
  the civil practice  law  and  rules,  in  relation  to  assisting  and
  protecting victims of domestic violence, child abuse and child neglect

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1.  Legislative  intent.  Presently,  a  person  convicted  of
harassment,  which  is  only  a violation under the penal law, enjoys an
automatic seal on his or her criminal record. Harassment often  includes
matters  of  domestic  violence.  In  subsequent proceedings between the
victim of the violence and the convicted aggressor, the  record  of  the
criminal court, the police arrest and investigation, and the aggressor's
conviction,  admissions  or  orders of protection in the criminal matter
are not available to the victim to  prove  that  the  domestic  violence
occurred;  making  it  difficult  for  the  victim to protect himself or
herself against further aggression or obtain justice in family court  or
other  civil  proceedings.  This  act  will allow the victim or victim's
representative to obtain a judicial subpoena releasing  such  record  to
the family or supreme court.
  Likewise,  where  an investigation by child protective services "indi-
cates" the abuse or neglect of a child, the state law allows the subject
of the report the ability to amend the report to "unfounded" without any
notice or opportunity to object to the  amendment  being  given  to  the
victim  of  the  abuse  or  neglect.  As  a  result, if amended, even by
default, the victim or co-parent cannot access the record of the  inves-
tigation  in  subsequent  family or supreme court proceedings.  Further,
the person previously "indicated" can use the amended report as a weapon
against the opposing party to show that their allegation, or  belief  in
the  allegation,  was  frivolous.  Even where the "indicated" finding is
properly amended to "unfounded," and the accused was frivolously victim-
ized by the allegations of  their  opposing  party,  the  reporting  law
shields  the  identity  of  the  false  reporter.  This  act, therefore,
protects the victims of child abuse, child neglect and wrongful  accusa-

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
              

                                                           LBD08931-01-3

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tions  of  child abuse and neglect by opening the records of the central
registry by judicial subpoena.
  Finally,  the  state  legislature  enacted  a  hearsay  exception to a
child's statements of abuse or neglect in section  1065  of  the  family
court  act.  Justifiably, if not technically correct, the state's appel-
late courts have expanded such section's exception to  custody,  divorce
and  child support proceedings. However, this exception is not currently
available in every matter where domestic violence, child abuse or  child
neglect  may be at issue (i.e. surrogate court matters, tort actions, or
family offenses). This act allows the judges, parens patria, to  provide
further  protection  to  children  in  consideration of their particular
emotional immaturity and fragility, while preventing convictions on only
the allegations of a child.
  S 2. Subparagraphs (iv) and (v) of paragraph (a) of subdivision  5  of
section 422 of the social services law, as amended by chapter 555 of the
laws of 2000, are amended to read as follows:
  (iv) to the subject of the report; [and]
  (v)  to a district attorney, an assistant district attorney, an inves-
tigator employed in the office of a district attorney,  or  to  a  sworn
officer  of  the  division  of  state police, of a city, county, town or
village police department or of a  county  sheriff's  office  when  such
official  verifies  that  the  report  is necessary to conduct an active
investigation or prosecution of a  violation  of  subdivision  three  of
section 240.55 of the penal law; AND
  (VI)  ON  JUDICIAL  SUBPOENA  OF THE FAMILY OR SUPREME COURT WHERE THE
PROTECTION OF A CHILD OR A FALSE ALLEGATION OF CHILD ABUSE OR NEGLECT IS
AT ISSUE AND THE SUBJECT OF THE REPORT IS A PARTY TO AN ACTION THEREIN.
  S 3. Subdivision 7 of section 422  of  the  social  services  law,  as
amended  by  chapter  434  of  the  laws  of 1989, is amended to read as
follows:
  7. At any time, a subject of a report [and], other  persons  named  in
the  report  OR THEIR GUARDIANS OR CUSTODIANS, AND THE FAMILY OR SUPREME
COURT BY JUDICIAL SUBPOENA AND WHERE THE PROTECTION OF A CHILD OR  FALSE
ALLEGATIONS OF CHILD ABUSE OR NEGLECT IS AT ISSUE AND THE SUBJECT OF THE
REPORT  IS  A  PARTY  TO AN ACTION THEREIN, may receive, upon request, a
copy of all information contained in  the  central  register;  provided,
however, that the commissioner is authorized, EXCEPT WHEN THE REQUEST IS
MADE  BY JUDICIAL SUBPOENA AND THE REPORTER IS A PARTY TO THE ACTION, to
prohibit the release of data that would identify the person who made the
report or who cooperated in a subsequent investigation  or  the  agency,
institution,  organization, program or other entity where such person is
employed or with which he is associated, which he reasonably finds  will
be detrimental to the safety or interests of such person.
  S  4. Subparagraph (i) of paragraph (a) and subparagraphs (i) and (ii)
of paragraph (b) of subdivision 8 of section 422 of the social  services
law, as amended by chapter 12 of the laws of 1996, are amended and a new
paragraph (f) is added to read as follows:
  (i)  At any time subsequent to the completion of the investigation but
in no event later than ninety days after the subject of  the  report  is
notified  that  the  report  is  indicated  the  subject may request the
commissioner to amend the record of the report.  THE COMMISSIONER  SHALL
MAIL  TO  THE  VICTIM'S  PARENT,  GUARDIAN  OR  CUSTODIAN  NOTICE OF THE
SUBJECT'S REQUEST TO AMEND AND THE BASIS UPON  WHICH  THE  AMENDMENT  IS
SOUGHT.  SUCH  PARENT, GUARDIAN OR CUSTODIAN MAY OBJECT TO THE AMENDMENT
WITHIN THIRTY DAYS OF NOTICE BY MAILING HIS  OR  HER  OBJECTION  TO  THE
COMMISSIONER.  If  the commissioner does not amend the report in accord-

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ance with such request within ninety days of receiving the request,  the
subject  shall have the right to a fair hearing, held in accordance with
paragraph (b) of this subdivision, to determine whether  the  record  of
the report in the central register should be amended on the grounds that
it is inaccurate or it is being maintained in a manner inconsistent with
this title.
  (i)  If the department, within ninety days of receiving a request from
the subject that the record of a report be amended, does not  amend  the
record  in accordance with such request, the department shall schedule a
fair hearing and shall provide notice of the scheduled hearing  date  to
the  subject,  the statewide central register [and, as appropriate, to],
the child protective service or the state agency which investigated  the
report,  THE  ADULT  VICTIM,  OR  THE MINOR VICTIM'S PARENT, GUARDIAN OR
CUSTODIAN. SUCH PARENT, GUARDIAN OR CUSTODIAN MAY APPEAR IN  PERSON,  OR
BY  AN  ATTORNEY,  TO  OBJECT  TO  THE  REQUESTED  AMENDMENT AND PRESENT
WITNESSES, SWORN STATEMENTS AND OTHER EVIDENCE FOR PRESENTATION  TO  THE
HEARING OFFICER.
  (ii)  The  burden  of  proof  in  such a hearing shall be on the child
protective service or the state agency which  investigated  the  report,
THE  ADULT  VICTIM, OR THE MINOR VICTIM'S PARENT, GUARDIAN OR CUSTODIAN,
as the case may be. In such a hearing, the fact that there is  a  family
court  finding  of  abuse or neglect against the subject in regard to an
allegation contained in the report shall create an irrebuttable presump-
tion that said allegation is substantiated by some credible evidence.
  (F) AN ADULT VICTIM, OR THE MINOR VICTIM'S PARENT, GUARDIAN OR  CUSTO-
DIAN  MAY  SEEK TO VACATE AN AMENDMENT MADE PURSUANT TO PARAGRAPH (E) OF
THIS SUBDIVISION WITHIN ONE YEAR OF THE EFFECTIVE DATE OF THIS PARAGRAPH
OR KNOWLEDGE THAT SUCH AN AMENDMENT HAS BEEN MADE WITHOUT  SUCH  PARENT,
GUARDIAN  OR  CUSTODIAN  RECEIVING  NOTICE  OF  HEARING OR THE SUBJECT'S
REQUEST TO AMEND. THE ADULT VICTIM, OR THE MINOR VICTIM'S PARENT, GUARD-
IAN OR CUSTODIAN SEEKING TO VACATE AN UNNOTICED  AMENDMENT  SHALL  STATE
WITH PARTICULARITY THE DATE THAT THEY BECAME AWARE THAT AN AMENDMENT WAS
MADE  AND  THE  EVIDENCE  HE  OR  SHE WILL PRESENT THAT DEMONSTRATES THE
COMMISSIONER'S ERROR IN AMENDMENT. THE  COMMISSIONER  SHALL  SCHEDULE  A
REHEARING DATE, AND SHALL IMMEDIATELY INFORM THE SUBJECT OF THE FORMERLY
INDICATED REPORT, THE ADULT VICTIM OR MINOR VICTIM'S PARENT, GUARDIAN OR
CUSTODIAN,  AND  THE  CHILD  PROTECTIVE SERVICE OR THE STATE AGENCY THAT
INVESTIGATED THE REPORT.
  S 5. Paragraph (d) of subdivision 1 of section 160.55 of the  criminal
procedure  law, as amended by section 74 of subpart B of part C of chap-
ter 62 of the laws of 2011, is amended to read as follows:
  (d) the records referred to in paragraph (c) of this subdivision shall
be made available to the person accused or to such  person's  designated
agent, and shall be made available to (i) a prosecutor in any proceeding
in  which  the accused has moved for an order pursuant to section 170.56
or 210.46 of this chapter, or (ii) a  law  enforcement  agency  upon  ex
parte  motion  in any superior court, if such agency demonstrates to the
satisfaction of the court that justice requires  that  such  records  be
made available to it, or (iii) any state or local officer or agency with
responsibility  for  the  issuance of licenses to possess guns, when the
accused has made application for such a license, or (iv)  the  New  York
state  department  of  corrections  and  community  supervision when the
accused is under parole supervision as a result of  conditional  release
or  parole release granted by the New York state board of parole and the
arrest which is the subject of the inquiry is one which  occurred  while
the  accused was under such supervision, or (v) the probation department

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responsible for supervision of the accused when the arrest which is  the
subject of the inquiry is one which occurred while the accused was under
such  supervision,  or (vi) a police agency, probation department, sher-
iff's  office,  district  attorney's office, department of correction of
any municipality and parole department, for  law  enforcement  purposes,
upon  arrest  in  instances  in which the individual stands convicted of
harassment in the second degree, as defined in  section  240.26  of  the
penal law, committed against a member of the same family or household as
the  defendant,  as defined in subdivision one of section 530.11 of this
chapter, and determined  pursuant  to  subdivision  eight-a  of  section
170.10  of this title, OR (VII) UPON RECEIPT OF A JUDICIAL SUBPOENA, THE
FAMILY OR SUPREME  COURT  IN  A  MATTER  WHERE  DOMESTIC  VIOLENCE,  THE
PROTECTION OF A CHILD, OR A FALSE ALLEGATION OF DOMESTIC VIOLENCE, CHILD
ABUSE  OR NEGLECT IS AT ISSUE AND THE DEFENDANT IS A PARTY TO THE ACTION
THEREIN; and
  S 6. The civil practice law and rules  is  amended  by  adding  a  new
section 4549 to read as follows:
  S  4549.  EVIDENCE  OF CHILD'S STATEMENTS REGARDING DOMESTIC VIOLENCE,
ABUSE OR NEGLECT. 1. PREVIOUS STATEMENTS MADE BY A CHILD RELATING TO ANY
ALLEGATIONS OF DOMESTIC VIOLENCE OR CHILD  ABUSE  OR  NEGLECT  SHALL  BE
GENERALLY  ADMISSIBLE IN EVIDENCE, BUT IF UNCORROBORATED, SUCH STATEMENT
SHALL NOT BE SUFFICIENT TO MAKE A FACT-FINDING OF ABUSE OR NEGLECT.  ANY
OTHER  EVIDENCE TENDING TO SUPPORT THE RELIABILITY OF THE CHILD'S PREVI-
OUS STATEMENTS SHALL BE  GENERALLY  ADMISSIBLE  AND  SUFFICIENT  CORROB-
ORATION.  THE  TESTIMONY  OF  THE CHILD SHALL NOT BE NECESSARY TO MAKE A
FACT-FINDING OF DOMESTIC VIOLENCE, ABUSE OR NEGLECT.
  2. THE PRESIDING JUDGE MAY, HOWEVER, ISSUE AN  ORDER  PROHIBITING  THE
DIVULGING  OF  THE  CONTENTS  OF SUCH STATEMENTS TO ANY ENTITY OR PERSON
OTHER THAN THE COURT, LITIGANTS, THEIR COUNSEL AND  ANY  WITNESS  DEEMED
NECESSARY TO THE PROCEEDINGS.
  S 7. This act shall take effect immediately.