S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    249
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                                (PREFILED)
 
                              January 6, 2021
                                ___________
 
 Introduced  by  Sen.  MYRIE  -- 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  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

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                       [ ] is old law to be omitted.
                                                            LBD02395-01-1

 S. 249                              2

 considered one eligible offense] FOR WHICH THEY WERE CHARGED IN SEPARATE
 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-

 S. 249                              3
 
 gation regarding any criminal history information that occurred in other
 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

 S. 249                              4

 PARTY THAT WOULD AID THE SENTENCING JUDGE IN THEIR  DECISION.  ONCE  THE
 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;

 S. 249                              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.