S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   2981
 
                        2017-2018 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 23, 2017
                                ___________
 
 Introduced by M. of A. BICHOTTE -- read once and referred to the Commit-
   tee on Codes
 
 AN ACT to amend the criminal procedure law, in relation to expunction of
   records resulting from identity theft or mistaken identity
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:

   Section 1. The criminal procedure law  is  amended  by  adding  a  new
 section 160.53 to read as follows:
 § 160.53 ORDER  UPON  TERMINATION  OF  CRIMINAL  ACTION  IN FAVOR OF THE
            ACCUSED AS A RESULT OF IDENTITY THEFT OR MISTAKEN IDENTITY.
   1. FOR PURPOSES OF THIS SECTION, THE TERM  "MISTAKEN  IDENTITY"  MEANS
 THE ERRONEOUS ARREST OF A PERSON FOR A CRIME AS A RESULT OF MISIDENTIFI-
 CATION  BY  A  WITNESS  OR  LAW  ENFORCEMENT, CONFUSION ON THE PART OF A
 WITNESS OR LAW ENFORCEMENT AS TO THE IDENTITY OF THE PERSON WHO  COMMIT-
 TED  THE  CRIME,  MISINFORMATION  PROVIDED  TO LAW ENFORCEMENT AS TO THE
 IDENTITY OF THE PERSON WHO COMMITTED THE CRIME, OR SOME OTHER MISTAKE ON
 THE PART OF A WITNESS OR LAW ENFORCEMENT  AS  TO  THE  IDENTITY  OF  THE
 PERSON WHO COMMITTED THE CRIME.
   2.  FOR  PURPOSES  OF  THIS SECTION, THE TERM "LAW ENFORCEMENT AGENCY"
 MEANS THE DEPARTMENT OF ATTORNEY  GENERAL,  THE  SUPERINTENDENT  OF  THE
 STATE POLICE OR HIS/HER DESIGNEE, POLICE OFFICERS, THE DIVISION OF CRIM-
 INAL  JUSTICE SERVICES, A FEDERAL, STATE OR LOCAL LAW ENFORCEMENT AGENCY
 OR POLICE ORGANIZATION, AND ANY AGENCY, DEPARTMENT,  OR  BUREAU  OF  THE
 UNITED STATES GOVERNMENT WHICH HAS AS ONE OF ITS FUNCTIONS THE GATHERING
 OF INTELLIGENCE DATA.
   3.  FOR PURPOSES OF THIS SECTION, THE TERM "EXPUNCTION OF ALL OFFICIAL
 RECORDS" MEANS AND INCLUDES, BUT IS NOT  LIMITED  TO,  ANY  FINGERPRINT,
 PHOTOGRAPH, DNA SAMPLES, PHYSICAL MEASUREMENTS, OR OTHER RECORD OF IDEN-
 TIFICATION, HERETOFORE OR HEREAFTER TAKEN BY OR UNDER THE DIRECTION OF A
 LAW  ENFORCEMENT  AGENCY  OR ANY OTHER OFFICER AUTHORIZED BY THE LAWS OF
 THIS STATE, OF A PERSON UNDER ARREST.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD06994-01-7

 A. 2981                             2
 
   4. IF ANY PERSON IS NAMED IN A CHARGE OR ARRESTED FOR  ANY  INFRACTION
 OR CRIME AS A RESULT OF ANOTHER PERSON USING THE IDENTIFYING INFORMATION
 OF  THE  NAMED  PERSON  OR MISTAKEN IDENTITY, AND THE CHARGE AGAINST THE
 NAMED PERSON IS DISMISSED, THE PROSECUTOR OR OTHER JUDICIAL  OFFICER  OR
 LAW ENFORCEMENT AGENCY WHO ORDERED THE DISMISSAL SHALL PROVIDE NOTICE TO
 THE COURT OF THE DISMISSAL. THE COURT SHALL THEN:
   (A)  ORDER  THE  EXPUNCTION  OF  ALL  OFFICIAL  RECORDS CONTAINING ANY
 ENTRIES RELATING TO THE PERSON'S APPREHENSION, CHARGE, OR TRIAL;
   (B) NOTIFY THE PERSON ARRESTED THAT THE CHARGE WAS DISMISSED  OR  THAT
 NO  CHARGES  HAVE  BEEN  FILED  AND  THAT ALL OFFICIAL RECORDS HAVE BEEN
 EXPUNGED; AND
   (C) ORDER THAT THE SAID ENTRIES SHALL BE EXPUNGED FROM THE RECORDS  OF
 THE  COURT  AND  DIRECT  ALL LAW ENFORCEMENT AGENCIES, THE DEPARTMENT OF
 CORRECTIONS AND COMMUNITY SUPERVISION, THE DEPARTMENT OF MOTOR VEHICLES,
 OR ANY OTHER STATE OR LOCAL GOVERNMENT AGENCIES IDENTIFIED BY THE  PETI-
 TIONER,  OR  THE  PERSON  ELIGIBLE  FOR AUTOMATIC EXPUNGEMENT UNDER THIS
 SUBDIVISION, AS BEARING RECORD OF THE SAME TO EXPUNGE THEIR  RECORDS  OF
 THE ENTRIES. THE CLERK SHALL NOTIFY STATE AND LOCAL AGENCIES, INCLUDING,
 BUT  NOT  LIMITED  TO,  THE  DIVISION  OF CRIMINAL JUSTICE SERVICES, THE
 NATIONAL CRIME INFORMATION IDENTITY CENTER AND/OR  ANY  OTHER  STATE  OR
 FEDERAL AGENCY WHICH COMPILES, RETAINS OR COLLECTS ANY ARREST OR IDENTI-
 FYING  INFORMATION  OF  ARRESTEES,  OF  THE  COURT'S  ORDER AND THAT ALL
 RECORDS TRANSMITTED OR GENERATED SHALL BE EXPUNGED AS  PROVIDED  HEREIN.
 THE  COSTS OF EXPUNGING THE RECORDS SHALL NOT BE TAXED AGAINST THE PETI-
 TIONER.
   5. THE DEPARTMENT OF MOTOR VEHICLES SHALL  EXPUNGE  FROM  ITS  RECORDS
 ENTRIES  MADE  AS  A RESULT OF THE CHARGE OF CONVICTION ORDERED EXPUNGED
 UNDER THIS SECTION. THE DEPARTMENT OF MOTOR VEHICLES SHALL ALSO  REVERSE
 ANY  ADMINISTRATIVE  ACTIONS  TAKEN  AGAINST  A  PERSON  WHOSE RECORD IS
 EXPUNGED UNDER THIS SECTION AS A RESULT OF THE  CHARGES  OR  CONVICTIONS
 EXPUNGED,  INCLUDING THE ASSESSMENT OF DRIVER'S LICENSE POINTS AND DRIV-
 ER'S  LICENSE  SUSPENSION  OR  REVOCATION.  NOTWITHSTANDING  ANY   OTHER
 PROVISION  OF LAW, THE DEPARTMENT OF MOTOR VEHICLES SHALL PROVIDE TO THE
 PERSON WHOSE MOTOR VEHICLE RECORD  IS  EXPUNGED  UNDER  THIS  SECTION  A
 CERTIFIED  CORRECTED DRIVER HISTORY AT NO COST AND SHALL REINSTATE AT NO
 COST ANY DRIVER'S LICENSE SUSPENDED OR REVOKED AS A RESULT OF  A  CHARGE
 OR CONVICTION EXPUNGED UNDER THIS SECTION.
   6.  WHERE  A  CHARGE OR CONVICTION IS EXPUNGED UNDER THIS SECTION, THE
 DIVISION OF CRIMINAL JUSTICE SERVICES AND ANY OTHER APPLICABLE STATE  OR
 LOCAL  GOVERNMENT AGENCY SHALL EXPUNGE ITS RECORDS. THOSE AGENCIES SHALL
 ALSO REVERSE ANY ADMINISTRATIVE ACTIONS TAKEN  AGAINST  A  PERSON  WHOSE
 RECORD  IS  EXPUNGED  UNDER  THIS  SECTION.  NOTWITHSTANDING  ANY  OTHER
 PROVISION OF LAW, THE NORMAL FEE FOR ANY REINSTATEMENT OF A  LICENSE  OR
 PRIVILEGE RESULTING UNDER THIS SECTION SHALL BE WAIVED.
   7.  ANY INSURANCE COMPANY THAT CHARGED ANY ADDITIONAL PREMIUM BASED ON
 INSURANCE POINTS ASSESSED AGAINST A POLICYHOLDER AS A RESULT OF A CHARGE
 OR CONVICTION THAT WAS EXPUNGED UNDER THIS SECTION  SHALL  REFUND  THOSE
 ADDITIONAL  PREMIUMS  TO  THE  POLICYHOLDER  UPON  NOTIFICATION  OF  THE
 EXPUNGEMENT.
   8. ANY PERSON ARRESTED DETAINED OR OTHERWISE IDENTIFIED AS  A  SUSPECT
 AND  WHO  IS THEREAFTER EXONERATED CONSISTENT WITH THIS SECTION MAY DENY
 FOR ANY PURPOSE THAT THE ARREST EVER OCCURRED AND UNDER NO CIRCUMSTANCES
 SHALL SUCH AN ARRESTEE BE  REQUIRED  TO  DISCLOSE  THE  ARREST  FOR  ANY
 PURPOSES  INCLUDING, BUT NOT LIMITED TO, ANY APPLICATION FOR EMPLOYMENT,
 PROFESSIONAL LICENSE, CONCEALED WEAPONS PERMIT  OR  THE  PURCHASE  OF  A
 FIREARM  OR  OTHER  WEAPON.  NO PERSON AS TO WHOM SUCH AN ORDER HAS BEEN

 A. 2981                             3
 
 ENTERED UNDER THIS SECTION SHALL BE HELD THEREAFTER UNDER ANY  PROVISION
 OF  ANY LAW TO BE GUILTY OF PERJURY, OR TO BE GUILTY OF OTHERWISE GIVING
 A FALSE STATEMENT OR RESPONSE TO ANY INQUIRY MADE FOR  ANY  PURPOSE,  BY
 REASON  OF  THE  PERSON'S  FAILURE TO RECITE OR ACKNOWLEDGE ANY EXPUNGED
 ENTRIES CONCERNING APPREHENSION, CHARGE, OR TRIAL.
   9. ANY SUCH PERSON ARRESTED AND NOT CHARGED SHALL BE ENTITLED  TO  THE
 PROVISIONS  UNDER  THIS SECTION REGARDLESS OF ANY PRIOR RECORD OF ARREST
 OR CONVICTION THAT MAY OTHERWISE NOT BE ELIGIBLE FOR EXPUNGEMENT.
   § 2. This act shall take effect immediately.