S T A T E O F N E W Y O R K
________________________________________________________________________
4071
2013-2014 Regular Sessions
I N S E N A T E
March 7, 2013
___________
Introduced by Sen. GOLDEN -- read twice and ordered printed, and when
printed to be committed to the Committee on Codes
AN ACT to amend the criminal procedure law and the executive law, in
relation to disclosure of arrest and prosecution records of applicants
for employment by police departments and other law enforcement agen-
cies
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Paragraph (d) of subdivision 1 of section 160.50 of the
criminal procedure law, as amended by section 73 of subpart B of part C
of chapter 62 of the laws of 2011, is amended to read as follows:
(d) 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 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 on parole supervision as a
result of conditional release or a 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 super-
vision or (v) any prospective employer of a police officer or peace
officer as those terms are defined in subdivisions thirty-three and
thirty-four of section 1.20 of this chapter, in relation to an applica-
tion for employment as a police officer or peace officer; provided,
however, that every person who is an applicant for the position of
police officer or peace officer shall be furnished with a copy of all
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD07250-02-3
S. 4071 2
records obtained under this paragraph and afforded an opportunity to
make an explanation thereto, or (vi) A POLICE DEPARTMENT OR OTHER LAW
ENFORCEMENT AGENCY, IN RELATION TO AN APPLICATION BY THE PERSON ACCUSED
FOR EMPLOYMENT BY SUCH AGENCY OR DEPARTMENT; PROVIDED, HOWEVER, THAT
EVERY SUCH PERSON SHALL BE FURNISHED WITH A COPY OF ALL RECORDS OBTAINED
UNDER THIS PARAGRAPH AND AFFORDED AN OPPORTUNITY TO MAKE AN EXPLANATION
THERETO, OR (VII) the probation department 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; and
S 2. 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
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) A POLICE DEPARTMENT OR OTHER LAW ENFORCE-
MENT AGENCY, IN RELATION TO AN APPLICATION BY THE PERSON ACCUSED FOR
EMPLOYMENT BY SUCH AGENCY OR DEPARTMENT; PROVIDED, HOWEVER, THAT EVERY
SUCH PERSON SHALL BE FURNISHED WITH A COPY OF ALL RECORDS OBTAINED UNDER
THIS PARAGRAPH AND AFFORDED AN OPPORTUNITY TO MAKE AN EXPLANATION THERE-
TO; and
S 3. Subdivision 16 of section 296 of the executive law, as separately
amended by section 3 of part N and section 14 of part AAA of chapter 56
of the laws of 2009, is amended to read as follows:
16. It shall be an unlawful discriminatory practice, unless specif-
ically required or permitted by statute, for any person, agency, bureau,
corporation or association, including the state and any political subdi-
vision thereof, to make any inquiry about, whether in any form of appli-
cation or otherwise, or to act upon adversely to the individual
involved, any arrest or criminal accusation of such individual not then
pending against that individual which was followed by a termination of
that criminal action or proceeding in favor of such individual, as
defined in subdivision two of section 160.50 of the criminal procedure
law, or by a youthful offender adjudication, as defined in subdivision
S. 4071 3
one of section 720.35 of the criminal procedure law, or by a conviction
for a violation sealed pursuant to section 160.55 of the criminal proce-
dure law or by a conviction which is sealed pursuant to section 160.58
of the criminal procedure law, in connection with the licensing, employ-
ment or providing of credit or insurance to such individual; provided,
further, that no person shall be required to divulge information
pertaining to any arrest or criminal accusation of such individual not
then pending against that individual which was followed by a termination
of that criminal action or proceeding in favor of such individual, as
defined in subdivision two of section 160.50 of the criminal procedure
law, or by a youthful offender adjudication, as defined in subdivision
one of section 720.35 of the criminal procedure law, or by a conviction
for a violation sealed pursuant to section 160.55 of the criminal proce-
dure law, or by a conviction which is sealed pursuant to section 160.58
of the criminal procedure law. The provisions of this subdivision shall
not apply to the licensing activities of governmental bodies in relation
to the regulation of guns, firearms and other deadly weapons or in
relation to an application for employment as a police officer or peace
officer as those terms are defined in subdivisions thirty-three and
thirty-four of section 1.20 of the criminal procedure law OR IN RELATION
TO AN APPLICATION FOR EMPLOYMENT FOR ANY POSITION IN A POLICE DEPART-
MENT OR OTHER LAW ENFORCEMENT AGENCY; provided further that the
provisions of this subdivision shall not apply to an application for
employment or membership in any law enforcement agency with respect to
any arrest or criminal accusation which was followed by a youthful
offender adjudication, as defined in subdivision one of section 720.35
of the criminal procedure law, or by a conviction for a violation sealed
pursuant to section 160.55 of the criminal procedure law, or by a
conviction which is sealed pursuant to section 160.58 of the criminal
procedure law.
S 4. Paragraphs (c) and (d) of subdivision 6 of section 160.58 of the
criminal procedure law, as added by section 3 of part AAA of chapter 56
of the laws of 2009, are amended and a new paragraph (e) is added to
read as follows:
(c) the court has received documentation that the sentences imposed on
the eligible misdemeanor convictions have been completed, or if no such
documentation is reasonably available, a sworn affidavit that the
sentences imposed on the prior misdemeanors have been completed; [and]
(d) the court has notified the district attorney of each jurisdiction
in which the defendant has been convicted of an offense with respect to
which sealing is sought, and the court or courts of record for such
offenses, that the court is considering sealing the records of the
defendant's eligible misdemeanor convictions. Both the district attorney
and the court shall be given a reasonable opportunity, which shall not
be less than thirty days, in which to comment and submit materials to
aid the court in making such a determination[.]; AND
(E) ANY POLICE DEPARTMENT OR LAW ENFORCEMENT AGENCY, IN RELATION TO AN
APPLICATION FOR EMPLOYMENT BY SUCH POLICE DEPARTMENT OR LAW ENFORCEMENT
AGENCY; PROVIDED, HOWEVER, THAT EVERY APPLICANT SHALL BE FURNISHED WITH
A COPY OF ALL RECORDS OBTAINED UNDER THIS PARAGRAPH AND AFFORDED AN
OPPORTUNITY TO MAKE AN EXPLANATION THERETO.
S 5. This act shall take effect on the ninetieth day after it shall
have become a law.