NY State Senate Bill 2019-S2278

Senate Bill S2278

2019-2020 Legislative Session

Relates to orders of adjournment in contemplation of dismissal and sealing of defendant records

download bill text pdf

Archive: Last Bill Status - In Senate Committee Codes Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 08, 2020	referred to codes
Jan 23, 2019	referred to codes

2019-S2278 (ACTIVE) - Details

See Assembly Version of this Bill:: A1364
Current Committee:: Senate Codes
Law Section:: Criminal Procedure Law
Laws Affected:: Amd §§160.58, 170.55 & 170.56, CP L
Versions Introduced in Other Legislative Sessions:: 2017-2018: S7188, A8798
2021-2022: S479, A90
2023-2024: S5161, A3697

2019-S2278 (ACTIVE) - Summary

Relates to orders of adjournment in contemplation of dismissal by mandating that judges seal certain records of defendants rather than giving judges discretion for such an action; and limits the total period of adjournment to 90 days.

2019-S2278 (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S2278

SPONSOR: HOYLMAN
 
TITLE OF BILL:

An act to amend the criminal procedure law, in relation to orders of
adjournment in contemplation of dismissal and sealing of defendant
records

 
PURPOSE OR GENERAL IDEA OF BILL:

The purpose of this bill is to substantially reduce the probationary
period of an ACD, an to expand the sealing of records of criminal
defendants during the ACD probationary period.

 
SUMMARY OF SPECIFIC PROVISIONS:

Section 1 mandates the sealing of records for criminal defendants
charged with specific offenses who have successfully completed a judi-
cially sanctioned drug treatment program.

Section 2 expands the definition of records a court may seal for current
and prior criminal offenses.

Section 3 eliminates subjective criteria a court may rely upon in deter-
mining whether to seal a defendant's criminal record. This section
instructs the court to rely upon the defendant having completed a judi-
cially sanctioned treatment program and consider the employment benefit
to the defendant in having his or her records sealed.

Section 4 describes the circumstances under which a criminal defendant's
records are unsealed.

Section 5 reduces the probationary period for ACD's in non-family
offenses from up to 1 year to no more than 90 days.

Section 6 reduces the probationary period for ACD's in marihuana related
criminal offense from up to 1 year to no more than 90 days.  This
section also expands which records can be sealed in a marihuana related
criminal offense.

Section 7 notes the effective date to be sixty days after the bill's
passage.

 
JUSTIFICATION:

ACD's are a common place criminal sanction given to defendants for low-
level criminal offenses, such as public consumption of alcohol or mari-
huana related offenses. There is no public policy rationale for an up to
1 year probationary period for these low-level offenses. A shorter
probationary period of no more than 90 days is consistent with the mini-
mal nature of these type of criminal offenses. Also, by expanding which
records a court can seal and by eliminating subjective factors a court
may consider during a hearing to seal records, the legislation will
result in more defendants having their ACD record sealed. Given that ACD
violations can result in eviction from public housing, suspension or
loss of employment, and even discharge from military service, sealing of
records should occur in most of these low level offense cases.

 
PRIOR LEGISLATIVE HISTORY:

S.7188-A of 2018 (Hoylman): Died in Codes

A.8789-A of 2017-2018 (Quart): Died in Codes/Died on 3rd Reading

 
FISCAL IMPLICATIONS:

None to the state

 
EFFECTIVE DATE:
60 days

2019-S2278 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   2278
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                             January 23, 2019
                                ___________
 
 Introduced  by  Sen. HOYLMAN -- read twice and ordered printed, and when
   printed to be committed to the Committee on Codes
 
 AN ACT to amend the criminal procedure law, in  relation  to  orders  of
   adjournment  in  contemplation  of  dismissal and sealing of defendant
   records

   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  Subdivision 1 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, is amended to read as follows:
   1. A defendant convicted of any offense defined in article two hundred
 twenty or two hundred twenty-one of the penal law or a specified offense
 defined  in  subdivision  five of section 410.91 of this chapter who has
 successfully completed a judicial diversion program  under  article  two
 hundred sixteen of this chapter, or one of the programs heretofore known
 as drug treatment alternative to prison or another judicially sanctioned
 drug  treatment  program  of similar duration, requirements and level of
 supervision, and has completed the sentence imposed for the  offense  or
 offenses,  [is  eligible  to] SHALL have such offense or offenses sealed
 pursuant to this section.
   § 2. Subdivision 2 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,  is
 amended to read as follows:
   2.  The  court that sentenced the defendant to a judicially sanctioned
 drug treatment program [may on its own motion,  or  on  the  defendant's
 motion,]  SHALL  order  that all official records and papers relating to
 the arrest, prosecution and conviction which resulted in the defendant's
 participation in the judicially sanctioned  drug  treatment  program  be
 conditionally  sealed.  In  such  case, the court may also conditionally
 seal the arrest, prosecution and conviction records  for  no  more  than
 [three]  FIVE  of  the defendant's prior [eligible] misdemeanors, [which

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

                                                            LBD01432-01-9

 S. 2278                             2

 for purposes  of  this  subdivision  shall  be  limited  to  misdemeanor
 offenses defined in article two hundred twenty or two hundred twenty-one
 of  the  penal law.   The court may only seal the records of the defend-
 ant's arrests, prosecutions and convictions when] PROVIDED THAT A MISDE-
 MEANOR FOR WHICH REGISTRATION AS A SEX OFFENDER IS REQUIRED SHALL NOT BE
 SEALED PURSUANT TO THIS SECTION. THE COURT MAY SEAL SUCH RECORDS WHEN:
   (a)  the sentencing court has requested and received from the division
 of criminal justice services or the Federal Bureau  of  Investigation  a
 fingerprint  based  criminal  history record of the defendant, including
 any sealed or suppressed information. The division of  criminal  justice
 services  shall also include a criminal history report, if any, from the
 Federal Bureau of Investigation regarding any criminal history  informa-
 tion  that  occurred  in  other  jurisdictions.  The  division is hereby
 authorized to receive such information from the Federal Bureau of Inves-
 tigation for this purpose. The parties shall  be  permitted  to  examine
 these records;
   (b)  the  defendant or court has identified the misdemeanor conviction
 or convictions for which relief may be granted;
   (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 attor-
 ney 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.
   § 3. Subdivision 3 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,  is
 amended to read as follows:
   3. At the request of the defendant or the district attorney of a coun-
 ty  in  which the defendant committed a crime that is the subject of the
 sealing application, the court [may] SHALL conduct a hearing to consider
 and review any relevant evidence offered by either party that would  aid
 the court in its decision whether to seal the records of the defendant's
 arrests, prosecutions and convictions. In making such [a] determination,
 the court shall consider any relevant factors, including but not limited
 to THE FOLLOWING FACTORS: (i) the circumstances [and seriousness] of the
 offense or offenses that resulted in the conviction or convictions; (ii)
 [the  character  of the defendant, including his or her] THE DEFENDANT'S
 completion of the judicially sanctioned treatment program  as  described
 in  subdivision  one  of  this  section;  (iii) the defendant's criminal
 CONVICTION history TAKING INTO ACCOUNT THE TIME THAT HAS  ELAPSED  SINCE
 THE  OCCURRENCE  OF  ANY  CONVICTION AND THE AGE OF THE DEFENDANT AT THE
 TIME OF SUCH CONVICTION; and (iv) the impact of sealing the  defendant's
 records  upon  his  or  her rehabilitation and his or her successful and
 productive reentry and reintegration into society, and on public safety.
   § 4. Subdivision 2 of section 170.55 of the criminal procedure law, as
 amended by chapter 222 of the laws  of  1994,  is  amended  to  read  as
 follows:
   2.  An  adjournment in contemplation of dismissal is an adjournment of
 the action without date ordered [with a view to ultimate]  INTENDED  FOR
 THE  dismissal  of  the accusatory instrument in furtherance of justice.

 S. 2278                             3
 
 Upon issuing such an order, the court must release the defendant on  his
 own recognizance.  [Upon application of the people, made at any time not
 more  than  six months, or in the case of a family offense as defined in
 subdivision  one  of section 530.11 of this chapter, one year, after the
 issuance of such order, the court may restore the case to  the  calendar
 upon  a  determination that dismissal of the accusatory instrument would
 not be in furtherance of justice, and the action must thereupon proceed.
 If the case is not so restored within such six months or one year  peri-
 od,  the  accusatory  instrument  is,  at the expiration of such period,
 deemed to have been dismissed by the court in furtherance  of  justice.]
 AT  ANY  TIME  PRIOR TO DISMISSAL THE COURT MAY MODIFY THE CONDITIONS OR
 EXTEND OR REDUCE THE TERM OF ADJOURNMENT, EXCEPT THAT THE  TOTAL  PERIOD
 OF  ADJOURNMENT SHALL NOT EXCEED NINETY DAYS, OR IN THE CASE OF A FAMILY
 OFFENSE AS DEFINED IN SECTION 530.11 OF  THIS  CHAPTER,  THE  PERIOD  OF
 ADJOURNMENT  SHALL  NOT  BE  MORE  THAN  ONE YEAR. UPON VIOLATION OF ANY
 CONDITION FIXED BY THE COURT, THE COURT MAY REVOKE ITS ORDER AND RESTORE
 THE CASE TO THE CALENDAR AND THE PROSECUTION MAY PROCEED. IF THE CASE IS
 NOT SO RESTORED TO THE CALENDAR DURING THE PERIOD FIXED  BY  THE  COURT,
 THE  ACCUSATORY  INSTRUMENT IS, AT THE EXPIRATION OF SUCH PERIOD, DEEMED
 TO HAVE BEEN DISMISSED.
   § 5. Section 170.56 of the criminal procedure law, as added by chapter
 1042 of the laws of 1971, subdivision 1 as amended by chapter 360 of the
 laws of 1977 and subdivision 3 as amended by chapter 905 of the laws  of
 1977, is amended to read as follows:
 § 170.56 Adjournment  in  contemplation  of dismissal in cases involving
            marihuana.
   1.  Upon or after arraignment in a local criminal court upon an infor-
 mation, a prosecutor's information or a misdemeanor complaint, where the
 sole remaining count or counts  charge  a  violation  or  violations  of
 section  221.05,  221.10,  221.15, 221.35 or 221.40 of the penal law and
 before the entry of a plea of guilty thereto or commencement of  a trial
 thereof, the court, upon motion of  a  defendant,  may  order  that  all
 proceedings  be  suspended  and the action adjourned in contemplation of
 dismissal, or upon a finding that adjournment would not be necessary [or
 appropriate] and the setting forth in the record of the reasons for such
 findings, may dismiss in furtherance of justice the  accusatory  instru-
 ment[;  provided, however, that the court may not order such adjournment
 in contemplation of dismissal or dismiss the accusatory  instrument  if:
 (a)  the  defendant  has  previously  been  granted  such adjournment in
 contemplation of dismissal, or (b) the  defendant  has  previously  been
 granted  a dismissal under this section, or (c) the defendant has previ-
 ously been convicted of any offense involving controlled substances,  or
 (d)  the  defendant  has  previously  been  convicted of a crime and the
 district attorney does not consent or (e) the defendant  has  previously
 been  adjudicated  a  youthful  offender on the basis of any act or acts
 involving controlled substances  and  the  district  attorney  does  not
 consent].
   2.  [Upon ordering the action adjourned in contemplation of dismissal,
 the  court  must  set and specify such conditions for the adjournment as
 may be appropriate, and such conditions may include placing the  defend-
 ant  under  the supervision of any public or private agency. At any time
 prior to dismissal the court may modify  the  conditions  or  extend  or
 reduce  the  term  of  the  adjournment, except that the total period of
 adjournment shall not exceed twelve  months.    Upon  violation  of  any
 condition fixed by the court, the court may revoke its order and restore
 the case to the calendar and the prosecution thereupon must proceed.  If

 S. 2278                             4

 the  case  is not so restored to the calendar during the period fixed by
 the court, the accusatory instrument is, at the expiration of such peri-
 od, deemed to have been dismissed in the  furtherance  of  justice.]  AN
 ADJOURNMENT  IN  CONTEMPLATION  OF  DISMISSAL  IS  AN ADJOURNMENT OF THE
 ACTION WITHOUT DATE ORDERED INTENDED FOR THE DISMISSAL OF THE ACCUSATORY
 INSTRUMENT IN FURTHERANCE OF JUSTICE. UPON ISSUING SUCH  AN  ORDER,  THE
 COURT  MUST  RELEASE THE DEFENDANT ON HIS OWN RECOGNIZANCE.  AT ANY TIME
 PRIOR TO DISMISSAL THE COURT MAY MODIFY  THE  CONDITIONS  OR  EXTEND  OR
 REDUCE THE TERM OF ADJOURNMENT, EXCEPT THAT THE TOTAL PERIOD OF ADJOURN-
 MENT SHALL NOT EXCEED NINETY DAYS. UPON VIOLATION OF ANY CONDITION FIXED
 BY THE COURT, THE COURT MAY REVOKE ITS ORDER AND RESTORE THE CASE TO THE
 CALENDAR AND THE PROSECUTION MAY PROCEED. IF THE CASE IS NOT SO RESTORED
 TO  THE  CALENDAR  DURING  THE PERIOD FIXED BY THE COURT, THE ACCUSATORY
 INSTRUMENT IS, AT THE EXPIRATION OF SUCH PERIOD,  DEEMED  TO  HAVE  BEEN
 DISMISSED.
   3.  Upon  or  after dismissal of such charges against a defendant [not
 previously convicted of a crime,] the court shall order that  all  offi-
 cial  records  and papers, relating to the defendant's arrest and prose-
 cution, whether on file with the court, a police agency, or the New York
 state division of criminal justice services, be sealed  and,  except  as
 otherwise provided in paragraph (d) of subdivision one of section 160.50
 of  this  chapter, not made available to any person or public or private
 agency[; except, such records shall be made available under order  of  a
 court for the purpose of determining whether, in subsequent proceedings,
 such  person qualifies under this section for a dismissal or adjournment
 in contemplation of dismissal of the accusatory instrument].
   4. Upon the granting of an order pursuant to subdivision three OF THIS
 SECTION, the arrest and prosecution shall be deemed a  nullity  and  the
 defendant  shall  be restored, in contemplation of law, to the status he
 occupied before his arrest and prosecution.
   § 6. This act shall take effect on the sixtieth  day  after  it  shall
 have become a law.

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