S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8161
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                               June 4, 2019
                                ___________
 
 Introduced by M. of A. LENTOL -- read once and referred to the Committee
   on Codes
 
 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-
 vision  two  of  section  40.10 of this chapter, those offenses shall be
 considered one eligible offense] FOR WHICH THEY WERE CHARGED IN SEPARATE
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD13177-01-9

 A. 8161                             2
 
 COUNTS OF ONE INDICTMENT, INFORMATION OR COMPLAINT, OR  FOR  WHICH  THEY
 WERE  CHARGED  IN  TWO  OR MORE INDICTMENTS, INFORMATIONS OR COMPLAINTS,
 FILED IN THE SAME COURT PRIOR TO ENTRY OF JUDGMENT UNDER  ANY  OF  THEM,
 THOSE 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] FOUR eligible CRIMINAL offenses  but  not  more  than  one  felony
 offense  may  apply  to  the  court  in  which [he or she was] THEY WERE
 convicted of [the] THEIR most serious  ELIGIBLE  offense  to  have  such
 conviction  or convictions sealed. If all offenses are offenses with the
 same classification, 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]  THEY
 HAVE  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 statement 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 WHICH
 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] THEY  OBJECT  to  the  application  for
 sealing.  IF THE PROSECUTOR HAS NOT NOTIFIED THE COURT WITHIN FORTY-FIVE
 DAYS  OF THEIR OBJECTION TO THE APPLICATION FOR SEALING, THE COURT SHALL
 PROCEED WITH DECISION ON 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

 A. 8161                             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 or more felo-
 nies or more than [two] FOUR 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] FOUR 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] FOUR eligible offenses but not more than one felony offense.
   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.
   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 THEIR RIGHT TO SUPPLEMENT THEIR APPLICATION WITH ADDITIONAL
 MATERIALS THAT WOULD AID THE SENTENCING JUDGE IN THEIR DECISION OR TO  A
 HEARING  ON  THE  APPLICATION  IN  ORDER TO CONSIDER ARGUMENTS BY EITHER
 PARTY THAT WOULD AID THE SENTENCING JUDGE IN THEIR  DECISION.  ONCE  THE

 A. 8161                             4
 
 APPLICANT  INDICATES  WHETHER  THEY  INTEND  TO  PROCEED WITH OR WITHOUT
 SUPPLEMENTATION OR A HEARING, THE SENTENCING JUDGE OR LOCAL,  COUNTY  OR
 SUPREME  COURT,  MAY PROCEED.  THE COURT MAY HOLD A HEARING UPON REQUEST
 OF THE PROSECUTOR.
   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 THAT
 EXCEPTIONAL CIRCUMSTANCES WEIGH  AGAINST  SUCH  RELIEF.  IN  DETERMINING
 WHETHER  EXCEPTIONAL CIRCUMSTANCES EXIST THE COURT SHALL CONSIDER IF THE
 SEALING WOULD CREATE AN UNREASONABLE RISK  TO  PUBLIC  SAFETY,  BALANCED
 AGAINST  THE BENEFIT OF SEALING THE RECORD UPON THE APPLICANT'S SUCCESS-
 FUL AND PRODUCTIVE REENTRY AND REINTEGRATION 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
 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] THEY HAVE filed or
 [intends] INTEND to file an application for sealing of any other  eligi-
 ble 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;

 A. 8161                             5
 
   (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.
   12. DENIAL UNDER THIS  SECTION  IS  WITHOUT  PREJUDICE  TO  SUBSEQUENT
 RELIEF UNDER THIS SECTION.
   13.  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 on the ninetieth day  after  it  shall
 have  become  a  law and shall apply to all offenses committed prior to,
 on, or after such date.