S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   9087
 
                           I N  A S S E M B L Y
 
                             January 17, 2020
                                ___________
 
 Introduced by M. of A. LENTOL -- read once and referred to the Committee
   on Children and Families
 
 AN  ACT  to amend the family court act, in relation to providing for the
   confidentiality, sealing,  and  expungement  of  juvenile  delinquency
   records;  and to repeal section 375.3 of the family court act relating
   thereto

   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  The  family  court act is amended by adding a new section
 301.6 to read as follows:
   § 301.6. JUVENILE DELINQUENCY RECORDS. 1. AN OFFICER OF THE COURT WITH
 WHOM THE PROCEEDINGS PURSUANT TO THIS ARTICLE ARE FILED, OR HIS  OR  HER
 CLERK,  EITHER  BEFORE OR AFTER THE CONCLUSION OF SAID PROCEEDING, SHALL
 NOT PERMIT A COPY OF ANY OF THE DOCUMENTS RELATING TO SUCH PROCEEDING TO
 BE TAKEN OR SEEN BY ANY PERSON OTHER THAN THE RESPONDENT,  THE  ATTORNEY
 FOR  THE  CHILD,  AN  ATTORNEY EMPLOYED BY THE PRESENTMENT AGENCY, OR AN
 OFFICIAL EMPLOYED BY THE PROBATION  SERVICE,  EXCEPT  BY  ORDER  OF  THE
 COURT.
   2.  NOTWITHSTANDING THE PROVISIONS OF SUBDIVISION ONE OF THIS SECTION,
 AN OFFICER OF THE COURT, OR HIS OR HER CLERK, SHALL NOT PERMIT ACCESS OF
 ANY PERSON TO A RECORD WHICH HAS BEEN SEALED PURSUANT TO SECTION  375.1,
 375.2, OR 375.3.
   § 2. Section 375.1 of the family court act, as added by chapter 920 of
 the  laws of 1982, subdivision 1 as amended by chapter 41 of the laws of
 2010, paragraphs (d), (f) and (h) of subdivision 2 and subdivision 3  as
 amended  and  paragraph  (i) of subdivision 2 as added by chapter 398 of
 the laws of 1983, is amended to read as follows:
   § 375.1. Order upon termination of a delinquency action  in  favor  of
 the respondent.  1. Upon termination of a delinquency proceeding against
 a  respondent in favor of such respondent, PURSUANT TO SUBDIVISION THREE
 OF THIS SECTION EXCEPT PARAGRAPHS  (G)  AND  (H)  OF  SUCH  SUBDIVISION,
 unless  the  presentment  agency  upon written motion with not less than
 eight days notice to such respondent demonstrates to the satisfaction of
 the court that the interests of justice require otherwise or  the  court
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                       [ ] is old law to be omitted.
                                                            LBD14736-02-0

 A. 9087                             2
 
 on  its own motion with not less than eight days notice to such respond-
 ent determines that the interest of justice require otherwise and states
 the reason for such determination on the  record,  [the  clerk  of]  the
 court  shall [immediately notify the counsel for the child, the director
 of the appropriate presentment agency, and the heads of the  appropriate
 probation  department  and  police  department  or other law enforcement
 agency, that the proceeding has terminated in favor  of  the  respondent
 and,  unless  the court has directed otherwise, that the records of such
 action or proceeding, other than those  destroyed  pursuant  to  section
 354.1  of  this  act, shall be sealed. Upon receipt of such notification
 all official records and papers, including judgments and orders  of  the
 court,  but  not including public court decisions or opinions or records
 and briefs on appeal, relating to the arrest, the  prosecution  and  the
 probation service proceedings, including all duplicates or copies there-
 of,  on  file  with  the  court,  police  agency,  probation service and
 presentment agency shall be sealed and not made available to any  person
 or public or private agency. Such records shall remain sealed during the
 pendency of any motion made pursuant to this subdivision] ENTER AN ORDER
 SEALING THE APPROPRIATE RECORDS.
   2.  UPON  ENTRY OF AN ORDER PURSUANT TO SUBDIVISION ONE OR PURSUANT TO
 SECTION 375.2 OR 375.3 THE CLERK OF COURT  SHALL  IMMEDIATELY  SEAL  THE
 RELEVANT  COURT RECORDS AND SHALL IMMEDIATELY NOTIFY THE DIRECTOR OF THE
 APPROPRIATE  PRESENTMENT  AGENCY,  AND  THE  HEADS  OF  THE  APPROPRIATE
 PROBATION DEPARTMENT, DETENTION FACILITY, POLICE DEPARTMENT OR OTHER LAW
 ENFORCEMENT  AGENCY  THAT,  UNLESS THE COURT HAS DIRECTED OTHERWISE, THE
 RECORDS OF SUCH ACTION OR PROCEEDING, OTHER THAN THOSE DESTROYED  PURSU-
 ANT TO SECTION 354.1, SHALL BE SEALED.
   3. For the purposes of subdivision one, a delinquency proceeding shall
 be considered terminated in favor of a respondent where:
   (a) the petition is withdrawn; or
   (b)  the  petition  is  dismissed under section 315.1 or 315.2 and the
 presentment agency has not appealed from such order or the determination
 of an appeal or appeals from such order has been against the presentment
 agency; or
   (c) the petition has been deemed to have been dismissed under  section
 315.3 and the presentment agency has not appealed from such order or the
 determination  of  an appeal or appeals from such order has been against
 the presentment agency; or
   (d) the petition is dismissed without prejudice under subdivision four
 of section 325.3 and the presentment agency has not appealed  from  such
 order  or  the determination of an appeal or appeals from such order has
 been against the presentment agency; or
   (e) the entire petition has been dismissed under  subdivision  two  of
 section 345.1; or
   (f)  the petition is dismissed under subdivision two of section 352.1;
 or
   (g) prior to the filing of a petition, the  probation  department  has
 adjusted the case or terminated the case without adjustment; or
   (h)  prior  to the filing of a petition the presentment agency chooses
 not to proceed to petition; or
   (i) the petition is dismissed pursuant to a motion made in  accordance
 with subdivision eight, nine or ten of section 332.1.
   [3.]  4.  Records  sealed  pursuant  to  subdivision one shall be made
 available to the respondent or his designated agent and the records  and
 papers  of  a  probation  service  shall  be  available to any probation

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 service for the purpose of complying with subdivision  four  of  section
 308.1.
   [4.]  5.  If  prior to the filing of a petition the presentment agency
 elects not to commence a delinquency action it  shall  serve  a  certif-
 ication  of  such disposition upon the appropriate probation service and
 the appropriate police department or law enforcement agency, which, upon
 receipt thereto, shall comply with the provision of subdivision  one  in
 the same manner as is required with respect to an order of the court.
   [5.]  6.  If the probation service adjusts a delinquency case it shall
 serve a certification of such disposition upon  the  appropriate  police
 department  or law enforcement agency which, upon receipt thereof, shall
 comply with the provisions of subdivision one in the same manner  as  is
 required thereunder with respect to an order of a court.
   [6.]  7.  A  respondent  in  whose  favor a delinquency proceeding was
 terminated prior to the effective date of this section may  upon  motion
 apply  to  the  court,  upon  not  less  than  twenty days notice to the
 presentment agency, for an order granting him the relief  set  forth  in
 subdivision  one, and such order shall be granted unless the presentment
 agency demonstrates to the satisfaction of the court that the  interests
 of  justice require otherwise. A respondent in whose favor a delinquency
 action or proceeding was terminated as defined by subdivisions four  and
 five,  prior  to  the  effective  date of this section, may apply to the
 appropriate presentment agency or probation service for a  certification
 as  described  in  such  subdivisions  granting him the relief set forth
 therein and such certification shall  be  granted  by  such  presentment
 agency or probation service.
   § 3. Subdivisions 1, 5 and 6 of section 375.2 of the family court act,
 subdivisions  1  and  5 as added by chapter 920 of the laws of 1982, and
 subdivision 6 as amended by section 77 of part WWW of chapter 59 of  the
 laws of 2017, are amended to read as follows:
   1.  If  an action has resulted in a finding of delinquency pursuant to
 subdivision one of  section  352.1,  [other  than  a  finding  that  the
 respondent  committed a designated felony act,] AND THE RECORDS HAVE NOT
 BEEN SEALED PURSUANT TO SECTION 375.1 OR 375.3, the court  may,  in  the
 interest of justice and upon motion of the respondent, order the sealing
 of appropriate records pursuant to subdivision one of section 375.1.
   5.  The  court  shall  not  order  the sealing of any record except as
 prescribed by this section or section 375.1 OR 375.3.
   6. [Such a motion cannot be filed  until  the  respondent's  sixteenth
 birthday,  or,  commencing  October  first,  two  thousand eighteen, the
 respondent's seventeenth birthday,  or  commencing  October  first,  two
 thousand  nineteen, the respondent's eighteenth birthday] IF THE FINDING
 RELATES TO AN ACT COMMITTED BEFORE THE RESPONDENT ATTAINED  AGE  SIXTEEN
 SUCH A MOTION CANNOT BE FILED UNTIL THE RESPONDENT'S SIXTEENTH BIRTHDAY.
 IF  THE  FINDING  RELATED TO AN ACT COMMITTED SUBSEQUENT TO THE RESPOND-
 ENT'S SIXTEENTH BIRTHDAY, SUCH MOTION CANNOT BE FILED UNTIL THE RESPOND-
 ENT HAS ATTAINED AGE EIGHTEEN.
   § 4. Section 375.3 of the family court  act  is  REPEALED  and  a  new
 section 375.3 is added to read as follows:
   § 375.3. POST-FINDING SEALING. 1. IF AN ACTION HAS RESULTED IN A FIND-
 ING  OF  DELINQUENCY  PURSUANT  TO  SUBDIVISION ONE OF SECTION 352.1 AND
 EVERY SPECIFIC COUNT OF THE PETITION UPON WHICH THE  FACT-FINDING  ORDER
 ENTERED PURSUANT TO SECTION 345.1 CONSTITUTES A MISDEMEANOR IF COMMITTED
 BY  AN ADULT, AND FOUR YEARS HAVE ELAPSED SINCE THE FINDING WAS ENTERED,
 THE COURT SHALL ENTER AN ORDER SEALING THE APPROPRIATE RECORDS  PURSUANT
 TO  SUBDIVISION  ONE  OF  SECTION  375.1 AND THE CLERK SHALL IMMEDIATELY

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 TRANSMIT THE NOTIFICATIONS PURSUANT TO SUBDIVISION TWO OF SECTION 375.1,
 AND SECTION 375.4.
   2.  IF AFTER AN ACTION HAS RESULTED IN A FINDING OF DELINQUENCY PURSU-
 ANT TO SUBDIVISION ONE OF SECTION 352.1  AND  EVERY  SPECIFIC  COUNT  OR
 COUNTS  OF THE PETITION UPON WHICH THE ORDER ENTERED PURSUANT TO SECTION
 345.1 CONSTITUTE A MISDEMEANOR OR A NON-VIOLENT FELONY IF  COMMITTED  BY
 AN  ADULT,  AND:    (A)  FIVE  YEARS  HAVE ELAPSED SINCE THE FINDING WAS
 ENTERED; (B) THE RESPONDENT HAS HAD NO SUBSEQUENT ADJUDICATION OF  JUVE-
 NILE  DELINQUENCY  OR  A CRIMINAL CONVICTION; AND (C) NO JUVENILE DELIN-
 QUENCY OR CRIMINAL PROCEEDING IS THEN PENDING,  THE  COURT  SHALL,  UPON
 MOTION  OF  THE  RESPONDENT,  ORDER  THE  SEALING OF APPROPRIATE RECORDS
 PURSUANT TO SUBDIVISION ONE OF SECTION 375.1  AND  THE  CLERK  OF  COURT
 SHALL IMMEDIATELY TRANSMIT THE NOTIFICATIONS PURSUANT TO SUBDIVISION TWO
 OF SECTION 375.1, AND SECTION 375.4.
   §  5. The family court act is amended by adding a new section 375.4 to
 read as follows:
   § 375.4. NOTICE OF SEALING. UPON ENTERING AN ORDER SEALING APPROPRIATE
 RECORDS PURSUANT TO SECTIONS 375.1, 375.2 AND 375.3 THE CLERK  OF  COURT
 SHALL SERVE THE RESPONDENT AND THE ATTORNEY FOR THE CHILD WITH A COPY OF
 SUCH  ORDER  BY  ORDINARY  MAIL  SENT  TO  THE LAST KNOWN ADDRESS OF THE
 RESPONDENT AND THE ATTORNEY FOR THE CHILD.
   § 6. The family court act is amended by adding a new section 375.5  to
 read as follows:
   §  375.5.  EXPUNGEMENT.  1.  THE  COURT SHALL ORDER THE EXPUNGEMENT OF
 COURT RECORDS, AND THE RECORDS OF THE APPROPRIATE PRESENTMENT AGENCY AND
 PROBATION DEPARTMENT, WHEN THE ENTIRE PETITION HAS BEEN DISMISSED  UNDER
 SUBDIVISION TWO OF SECTION 345.1.
   2.  UPON  EXPIRATION  OF  ONE  YEAR AFTER TERMINATION OF A DELINQUENCY
 PROCEEDING IN FAVOR OF A CHILD UNDER PARAGRAPH (G) OR (H) OF SUBDIVISION
 THREE OF SECTION 375.1 THE DIRECTOR OF THE APPROPRIATE PRESENTMENT AGEN-
 CY, AND/OR THE HEAD  OF  THE  APPROPRIATE  PROBATION  DEPARTMENT,  SHALL
 DESTROY  THE AGENCY'S RECORDS OF SUCH PROCEEDING WHEN THE HIGHEST CHARGE
 MADE BY THE POLICE DEPARTMENT IS A CLASS E FELONY OR A MISDEMEANOR,  AND
 THE  CHILD  WAS  LESS  THAN  THIRTEEN  YEARS OF AGE WHEN THE ALLEGED ACT
 OCCURRED.  AS APPROPRIATE, THE PRESENTMENT AGENCY SHALL SERVE A  CERTIF-
 ICATION  OF  DISPOSITION  UPON  THE APPROPRIATE PROBATION SERVICE, WHICH
 SHALL DESTROY  THE  PROBATION  SERVICE'S  RECORDS  IN  THE  SAME  MANNER
 REQUIRED WITH RESPECT TO AN ORDER FOR THE COURT.
   3.  UPON THE FILING OF A WRITTEN MOTION BY THE RESPONDENT ON NOTICE TO
 THE APPROPRIATE PRESENTMENT AGENCY, THE COURT SHALL ORDER  THE  EXPUNGE-
 MENT OF COURT RECORDS, AND/OR THE RECORDS OF THE APPROPRIATE PRESENTMENT
 AGENCY OR PROBATION DEPARTMENT, WHEN:
   (A)  THE  RESPONDENT  HAS  NO JUVENILE DELINQUENCY OR CRIMINAL HISTORY
 ASIDE FROM THE PROCEEDING IN WHICH THE MOTION IS MADE;
   (B) THE PROCEEDING DID NOT RESULT IN A FELONY FINDING; AND
   (C) RESPONDENT HAS REACHED THE AGE OF TWENTY-ONE.
   4. IN ALL OTHER CASES EXCEPT THOSE IN WHICH A DESIGNATED FELONY  FIND-
 ING  WAS  MADE,  THE  COURT,  UPON THE FILING OF A WRITTEN MOTION BY THE
 RESPONDENT ON NOTICE TO THE  APPROPRIATE  PRESENTMENT  AGENCY,  HAS  THE
 AUTHORITY  TO  ORDER  IN ITS DISCRETION AND IN THE INTERESTS OF JUSTICE,
 THE EXPUNGEMENT OF COURT RECORDS, AND/OR THE RECORDS OF THE  APPROPRIATE
 PRESENTMENT AGENCY OR PROBATION DEPARTMENT.
   §  7.  This  act shall take effect on the ninetieth day after it shall
 have become a law.