S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  6183--A
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                               May 21, 2019
                                ___________
 
 Introduced  by  Sen.  MYRIE  -- read twice and ordered printed, and when
   printed to be  committed  to  the  Committee  on  Codes  --  committee
   discharged, bill amended, ordered reprinted as amended and recommitted
   to said committee
 
 AN  ACT  to amend the criminal procedure law, in relation to eligibility
   for conviction sealing for certain applicants
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  Section 160.59 of the criminal procedure law, as added by
 section 48 of part WWW of chapter 59 of the laws of 2017  and  paragraph
 (a)  of subdivision 2 and subdivision 11 as amended by chapter 60 of the
 laws of 2017, is amended to read as follows:
 § 160.59 Sealing of certain convictions.
   1. Definitions: As used in this section,  the  following  terms  shall
 have the following meanings:
   (a)  "Eligible  offense"  shall mean A VIOLATION OF SUBDIVISION ONE OF
 SECTION ELEVEN HUNDRED NINETY-TWO OF THE VEHICLE AND TRAFFIC  LAW  OR  A
 VIOLATION  OF  SUBDIVISION TWO OF SECTION 240.37 OF THE PENAL LAW OR any
 crime defined in the laws of this state other than a sex offense defined
 in article one hundred thirty of the penal law, an  offense  defined  in
 article  two  hundred  sixty-three  of  the  penal law, a felony offense
 defined in article one hundred twenty-five of the penal law,  a  violent
 felony  offense  defined  in  section  70.02 of the penal law, a class A
 felony offense defined in the penal law, a  felony  offense  defined  in
 article  one  hundred five of the penal law where the underlying offense
 is not an eligible offense, an attempt to commit an offense that is  not
 an  eligible offense if the attempt is a felony, or an offense for which
 registration as a sex offender is required pursuant to article six-C  of
 the  correction  law.    For  the  purposes  of  this section, where the
 [defendant] APPLICANT is convicted of more than  one  eligible  offense,
 [committed as part of the same criminal transaction as defined in subdi-

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

                                                            LBD11910-05-9

 S. 6183--A                          2

 vision  two  of  section  40.10 of this chapter, those offenses shall be
 considered one eligible offense] CHARGED IN MORE THAN ONE COUNT  IN  THE
 SAME  INDICTMENT,  INFORMATION  OR COMPLAINT, OR WHERE THE APPLICANT WAS
 CONVICTED  OF MORE THAN ONE ELIGIBLE OFFENSE CHARGED IN MULTIPLE INDICT-
 MENTS, INFORMATIONS OR COMPLAINTS FILED IN THE SAME COURT PRIOR  TO  THE
 ENTRY   OF   JUDGMENT  ON  ANY  OF  SUCH  INDICTMENTS,  INFORMATIONS  OR
 COMPLAINTS, ALL SUCH OFFENSES SHALL BE CONSIDERED ONE ELIGIBLE OFFENSE.
   (b) "Sentencing judge" shall mean the judge  who  pronounced  sentence
 upon  the  conviction under consideration, or if that judge is no longer
 sitting in a court in the  jurisdiction  in  which  the  conviction  was
 obtained, any other judge who is sitting in the criminal court where the
 judgment of conviction was entered.
   (C)  "PROSECUTOR"  SHALL  MEAN THE PROSECUTOR'S OFFICE THAT PROSECUTED
 THE ELIGIBLE OFFENSE.
   1-a. The chief administrator of the courts shall, pursuant to  section
 10.40 of this chapter, prescribe a form application which may be used by
 a  defendant  to  apply  for sealing pursuant to this section. Such form
 application shall include all the essential elements  required  by  this
 section  to  be  included in an application for sealing. Nothing in this
 subdivision shall be read to require a defendant to use such form appli-
 cation to apply for sealing.
   2. (a) [A defendant] AN INDIVIDUAL who has been  convicted  of  up  to
 [two] FIVE eligible CRIMINAL offenses but not more than [one] TWO felony
 [offense]  OFFENSES  may  apply  to  the  court  in  which he or she was
 convicted of the most serious ELIGIBLE offense to have  such  conviction
 or  convictions sealed. If all offenses are offenses with the same clas-
 sification, the application shall be made to  the  court  in  which  the
 [defendant] APPLICANT was last convicted.
   (b) An application shall contain (i) a copy of a certificate of dispo-
 sition  or  other  similar  documentation  for any offense for which the
 [defendant] APPLICANT has been convicted, or an explanation of why  such
 certificate or other documentation is not available; (ii) a sworn state-
 ment  of the [defendant] APPLICANT as to whether he or she has filed, or
 then intends to file, any application for sealing of any other  eligible
 offense; (iii) a copy of any other such application that has been filed;
 AND (iv) a sworn statement as to the conviction or convictions for which
 relief  is being sought[; and (v)]. APPLICANTS MAY SUBMIT a sworn state-
 ment of the reason or reasons why the court should, in  its  discretion,
 grant such sealing, along with any supporting documentation.
   (c)  A  copy  of any application for such sealing shall be served upon
 the [district attorney of the county in which  the  conviction,  or,  if
 more  than  one,  the convictions, was or were obtained] PROSECUTOR THAT
 PROSECUTED THE ELIGIBLE OFFENSE FOR WHICH  A  CONVICTION  WAS  OBTAINED.
 The  [district attorney] PROSECUTOR shall notify the court within forty-
 five days if he or she objects to the application for  sealing.  FAILURE
 TO OBJECT WITHIN THIS PERIOD SHALL INDICATE CONSENT TO THE APPLICATION.
   (d)  When  such  application  is  filed  with  the  court, it shall be
 assigned to the sentencing judge unless more  than  one  application  is
 filed  in  which  case  the  application  shall be assigned to the LOCAL
 COURT, county court or the supreme court of  the  county  in  which  the
 criminal  court is located, who shall request and receive from the divi-
 sion of criminal justice services a fingerprint based  criminal  history
 record  of the [defendant] APPLICANT, including any sealed or suppressed
 records. The division of criminal justice services also shall include  a
 criminal  history  report,  if  any, from the federal bureau of investi-
 gation regarding any criminal history information that occurred in other

 S. 6183--A                          3
 
 jurisdictions. The division is hereby authorized to receive such  infor-
 mation from the federal bureau of investigation for this purpose, and to
 make such information available to the court, which may make this infor-
 mation available to the district attorney and the [defendant] APPLICANT.
   3.  The  sentencing  judge,  or  LOCAL,  county or supreme court shall
 summarily deny the [defendant's] APPLICANT'S application when:
   (a) the [defendant] APPLICANT is required to register as a sex  offen-
 der pursuant to article six-C of the correction law; or
   (b)  the  [defendant] APPLICANT has previously obtained sealing of the
 maximum number of convictions allowable under  section  160.58  of  [the
 criminal procedure law] THIS ARTICLE; or
   (c)  the  [defendant] APPLICANT has previously obtained sealing of the
 maximum number of convictions allowable under subdivision four  of  this
 section; or
   (d)  the time period specified in subdivision five of this section has
 not yet been satisfied; or
   (e) the [defendant] APPLICANT has an undisposed arrest or charge pend-
 ing; or
   (f) the [defendant] APPLICANT was convicted of any crime THAT  IS  NOT
 ELIGIBLE  FOR  SEALING UNDER THIS SECTION after the date of the entry of
 [judgement] JUDGMENT of the last conviction for which sealing is sought;
 or
   (g) [the defendant has failed to provide the court with  the  required
 sworn  statement  of  the  reasons why the court should grant the relief
 requested; or
   (h)] the [defendant] APPLICANT has been convicted of  [two]  THREE  or
 more felonies or more than [two] FIVE crimes.
   4.  Provided  that  the  application  is  not summarily denied for the
 reasons set forth in subdivision three of this section, [a defendant] AN
 APPLICANT who stands convicted of up to  [two]  FIVE  eligible  CRIMINAL
 offenses[,]  may  obtain  sealing  of  VIOLATIONS  OF SUBDIVISION ONE OF
 SECTION ELEVEN HUNDRED NINETY-TWO OF THE VEHICLE  AND  TRAFFIC  LAW  AND
 SUBDIVISION  TWO  OF  SECTION  240.37 OF THE PENAL LAW, AND no more than
 [two] FIVE  eligible  offenses  but  not  more  than  [one]  TWO  felony
 [offense] OFFENSES.
   5.  Any  eligible offense may be sealed only after [at least ten years
 have passed since the imposition of  the  sentence  on  the  defendant's
 latest  conviction  or,  if  the  defendant was sentenced to a period of
 incarceration, including a period of incarceration imposed  in  conjunc-
 tion  with  a sentence of probation, the defendant's latest release from
 incarceration. In calculating the ten year period  under  this  subdivi-
 sion,  any  period  of  time  the defendant spent incarcerated after the
 conviction for which the application for sealing  is  sought,  shall  be
 excluded and such ten year period shall be extended by a period or peri-
 ods equal to the time served under such incarceration.]:
   (A)  AT LEAST ONE YEAR HAS PASSED SINCE THE DATE OF APPLICANT'S LATEST
 CONVICTION IF THE APPLICANT WAS  LAST  CONVICTED  OF  A  MISDEMEANOR  OR
 VIOLATION  OFFENSE.   IN CALCULATING THIS PERIOD, ANY PERIOD OF TIME THE
 APPLICANT SPENT INCARCERATED FOR THIS CONVICTION, INCLUDING A PERIOD  OF
 INCARCERATION IMPOSED IN CONJUNCTION WITH A SENTENCE OF PROBATION, SHALL
 BE EXCLUDED AND SUCH ONE YEAR PERIOD SHALL BE EXTENDED BY A PERIOD EQUAL
 TO THE TIME SERVED UNDER SUCH INCARCERATION; OR
   (B)  AT  LEAST  THREE  YEARS HAVE PASSED SINCE THE DATE OF APPLICANT'S
 LATEST CONVICTION IF THE  APPLICANT  WAS  LAST  CONVICTED  OF  A  FELONY
 OFFENSE.    IN CALCULATING THIS PERIOD, ANY PERIOD OF TIME THE APPLICANT
 SPENT INCARCERATED FOR THIS CONVICTION, INCLUDING A PERIOD OF INCARCERA-

 S. 6183--A                          4
 
 TION IMPOSED IN CONJUNCTION WITH  A  SENTENCE  OF  PROBATION,  SHALL  BE
 EXCLUDED  AND SUCH THREE YEAR PERIOD SHALL BE EXTENDED BY A PERIOD EQUAL
 TO THE TIME SERVED UNDER SUCH INCARCERATION.
   6.  Upon  determining that the application is not subject to mandatory
 denial pursuant to subdivision three of this section and that the appli-
 cation is opposed by the [district attorney] PROSECUTOR, the  sentencing
 judge  or LOCAL, county or supreme court shall [conduct a hearing on the
 application in order to consider any evidence offered  by  either  party
 that  would  aid  the sentencing judge in his or her decision whether to
 seal the records of the defendant's convictions. No hearing is  required
 if  the  district  attorney  does not oppose the application] INFORM THE
 APPLICANT OF HIS OR HER RIGHT TO SUPPLEMENT THEIR APPLICATION WITH ADDI-
 TIONAL MATERIALS THAT WOULD AID THE SENTENCING JUDGE IN HIS OR HER DECI-
 SION OR TO A HEARING ON THE APPLICATION IN ORDER TO  CONSIDER  ARGUMENTS
 BY  EITHER PARTY THAT WOULD AID THE SENTENCING JUDGE IN HIS OR HER DECI-
 SION. ONCE THE APPLICANT INDICATES WHETHER HE OR SHE INTENDS TO  PROCEED
 WITH  OR  WITHOUT  SUPPLEMENTATION OR A HEARING, THE SENTENCING JUDGE OR
 LOCAL, COUNTY OR SUPREME COURT, MAY PROCEED.
   7. [In considering any such application, the sentencing judge or coun-
 ty or supreme court shall consider any relevant factors,  including  but
 not limited to:
   (a)  the  amount  of  time that has elapsed since the defendant's last
 conviction;
   (b) the circumstances and seriousness of the  offense  for  which  the
 defendant is seeking relief, including whether the arrest charge was not
 an eligible offense;
   (c)  the circumstances and seriousness of any other offenses for which
 the defendant stands convicted;
   (d) the character of the defendant, including any  measures  that  the
 defendant  has  taken  toward  rehabilitation,  such as participating in
 treatment programs, work, or schooling, and participating  in  community
 service or other volunteer programs;
   (e)  any  statements  made  by the victim of the offense for which the
 defendant is seeking relief;
   (f) the impact of sealing the defendant's record upon his or her reha-
 bilitation and upon his or her successful  and  productive  reentry  and
 reintegration into society; and
   (g)  the impact of sealing the defendant's record on public safety and
 upon the public's confidence in and respect for the law] UPON  DETERMIN-
 ING  THAT THE APPLICATION IS NOT SUBJECT TO MANDATORY DENIAL PURSUANT TO
 SUBDIVISION THREE OF THIS SECTION, THE SENTENCING JUDGE OR LOCAL, COUNTY
 OR SUPREME COURT SHALL ORDER SEALING, UNLESS  THE  PROSECUTOR  SHOWS  BY
 CLEAR  AND  CONVINCING  EVIDENCE  THAT  EXCEPTIONAL  CIRCUMSTANCES WEIGH
 AGAINST SUCH RELIEF. IN DETERMINING  WHETHER  EXCEPTIONAL  CIRCUMSTANCES
 EXIST  THE COURT SHALL CONSIDER IF THE SEALING WOULD CREATE AN UNREASON-
 ABLE RISK TO PUBLIC SAFETY, BALANCED AGAINST THE BENEFIT OF SEALING  THE
 RECORD  UPON THE APPLICANT'S SUCCESSFUL AND PRODUCTIVE REENTRY AND REIN-
 TEGRATION INTO SOCIETY.
   8. When a sentencing judge or LOCAL, county or  supreme  court  orders
 sealing  pursuant  to  this  section,  all  official records and papers,
 INCLUDING JUDGMENTS AND ORDERS OF A COURT BUT  NOT  INCLUDING  PUBLISHED
 COURT DECISIONS OR OPINIONS OR RECORDS AND BRIEFS ON APPEAL, relating to
 the arrests, prosecutions, and convictions, including all duplicates and
 copies  thereof,  on file with the division of criminal justice services
 or any court, POLICE AGENCY OR PROSECUTOR'S OFFICE shall be  sealed  and
 not  made  available to any person or public or private agency except as

 S. 6183--A                          5
 
 provided for in subdivision nine of this section; provided, however, the
 division shall retain any fingerprints, palmprints and  photographs,  or
 digital  images  of the same.  The clerk of such court shall immediately
 notify  the  commissioner  of the division of criminal justice services,
 THE HEADS OF ALL APPROPRIATE POLICE DEPARTMENTS AND OTHER  LAW  ENFORCE-
 MENT  AGENCIES,  regarding  the records that shall be sealed pursuant to
 this section. The clerk  also  shall  notify  any  court  in  which  the
 [defendant]  APPLICANT has stated, pursuant to paragraph (b) of subdivi-
 sion two of this section, that he or she has filed or intends to file an
 application for sealing of any other eligible offense.
   9. Records sealed pursuant to this section shall be made available to:
   (a) the [defendant] APPLICANT or the [defendant's] APPLICANT'S  desig-
 nated agent;
   (b)  qualified  agencies,  as  defined  in subdivision nine of section
 eight hundred thirty-five of the executive law, and  federal  and  state
 law  enforcement  agencies,  when  acting  within the scope of their law
 enforcement duties; or
   (c) any state or local officer or agency with responsibility  for  the
 issuance  of licenses to possess guns, when the person has made applica-
 tion for such a license; or
   (d) 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 application for  employ-
 ment 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  records  obtained  under
 this paragraph and afforded an opportunity to make an explanation there-
 to; or
   (e)  the criminal justice information services division of the federal
 bureau of investigation, for the purposes of responding  to  queries  to
 the national instant criminal background check system regarding attempts
 to  purchase  or otherwise take possession of firearms, as defined in 18
 USC 921 (a) (3).
   10. [A conviction which is sealed pursuant to this section is included
 within the definition of a conviction for the purposes of  any  criminal
 proceeding  in  which  the  fact  of  a prior conviction would enhance a
 penalty or is an element of the offense charged.
   11.] No [defendant] PERSON shall be required  or  permitted  to  waive
 eligibility  for  sealing  pursuant to this section as part of a plea of
 guilty, sentence or any agreement related to a conviction for an  eligi-
 ble  offense  and  any such waiver shall be deemed void and wholly unen-
 forceable.
   11. DENIAL UNDER THIS  SECTION  IS  WITHOUT  PREJUDICE  TO  SUBSEQUENT
 RELIEF UNDER THIS SECTION.
   12.  AN  APPLICATION  UNDER THIS SECTION, AND ALL PERTINENT PAPERS AND
 DOCUMENTS, SHALL BE CONFIDENTIAL AND MAY NOT BE MADE  AVAILABLE  TO  ANY
 PERSON  OR PUBLIC OR PRIVATE AGENCY EXCEPT WHERE SPECIFICALLY AUTHORIZED
 BY THE COURT.
   § 2. This act shall take effect immediately.