BILL NUMBER: S744

SPONSOR: MONTGOMERY
 
TITLE OF BILL:

An act to amend the executive law and the judiciary law, in relation to
providing that criminal history records excludes unresolved 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 (x) 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 meas-
ures 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 permit-
ted 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 crimi-
nal 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, prose-
cutors 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 perma-
nent criminal history record maintained by DCJS. Attempts to correct
these errors and eliminate undisposed case references often prove unsuc-
cessful 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, indict-
ments, 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 stat-
utory 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 work-
place 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 know-
ledge. 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 inaccura-
cies 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 fail-
ure 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-bid-
ing 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 neces-
sary 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.