BILL NUMBER:  S5092A

 TITLE OF BILL :

An act to amend the executive law and the judiciary law, in relation
to undisposed cases

 PURPOSE :

This bill will require DOS and OCA 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
              

recordkeeping purposes.

Section 2 of the bill establishes a corresponding requirement for OCA.
It adds a new paragraph (v) to subdivision two of section 212 of the
Judiciary Law to require OCA to refrain from reporting undisposed
cases on criminal history reports it produces except where the report
is prepared for internal recordkeeping 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 OCA 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, OCA 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
OCA. 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 OCA 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 DC3S as required. Since there
is no current system for ensuring that agencies update DOS, many
records at DCJS remain inaccurate for an extended period of time
without anyone's knowledge. As DOS 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 OCA. 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 OCA 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 DC35 for a "qualified agency" (or a
federal or state law enforcement agency) for a criminal justice
purpose, or by DC35 or OCA 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.
A.6471a amended and referred to codes in 2011 and referred to codes in
2012.
A.3381 referred to codes in 2013 and 2014.

 FISCAL IMPLICATIONS :

To be determined.

 EFFECTIVE DATE :
This act shall take effect on the one hundred eightieth day after it
shall have become a law and shall apply to searches of criminal
history records conducted on or after such date; provided, however,
that prior to such effective date; provided, however, that prior to
such effective date the division of criminal justice services, in
consultation with the state administrator of the unified court system
as well as any other public or private agency, shall undertake such
measures as may be necessary and appropriate to update its criminal
history records with respect to criminal cases and arrest incidents
for which no final disposition has to be reported.