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Assembly Actions -
Lowercase Senate Actions - UPPERCASE |
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|---|---|
| May 07, 2024 |
reported and committed to judiciary |
| Jan 03, 2024 |
referred to children and families |
| Jun 06, 2023 |
print number 3104a |
| Jun 06, 2023 |
amend and recommit to judiciary |
| May 16, 2023 |
reported and committed to judiciary |
| Jan 27, 2023 |
referred to children and families |
Senate Bill S3104A
2023-2024 Legislative Session
Relates to the confidentiality and expungement of records in juvenile delinquency cases in the family court
download bill text pdfSponsored By
(D, WF) 25th Senate District
Current Bill Status - In Senate Committee Judiciary 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
Actions
Votes
Bill Amendments
2023-S3104 - Details
- See Assembly Version of this Bill:
- A6289
- Current Committee:
- Senate Judiciary
- Law Section:
- Family Court Act
- Laws Affected:
- Add §301.5, amd §§354.1, 375.1, 375.2, 381.2 & 381.3, Fam Ct Act
- Versions Introduced in 2021-2022 Legislative Session:
-
S9228
2023-S3104 - Sponsor Memo
BILL NUMBER: S3104
SPONSOR: BRISPORT
TITLE OF BILL:
An act to amend the family court act, in relation to the confidentiality
and expungement of records in juvenile delinquency cases in the family
court
PURPOSE:
This bill makes several changes to the Family Court Act to clarify and
protect the record-related rights of children arrested as juvenile
delinquents or those arrested as juvenile offenders and adolescent
offenders whose cases are subsequently removed to family court.
Protecting children from collateral consequences related to juvenile
records is consistent with the rehabilitative purpose of the Family
Court Act. The bill requires confidentiality for all records created as
a result of juvenile arrests and family court cases. The bill further
defines which specific records would be considered juvenile delinquency
records and how such records should be maintained or expunged by the
court and other government entities.
SUMMARY OF PROVISIONS:
Section one amends the Family Court Act (FCA) by adding a new section,
301.5, to make clear that juvenile delinquency records shall be confi-
dential and shall not be released to any "person, department, agency, or
entity." The section defines "juvenile delinquency records" and enumer-
ates specific categories of records, such as: juvenile legal files, law
enforcement records, state criminal justice system records, and personal
social records. The section includes a mechanism for requesting access
to confidential records through notice and hearing. The section also
creates a civil cause of action for those aggrieved by a violation of
the outlined protections.
Section two amends FCA § 354.1(1) and (2) to account for recent legisla-
tive changes that raised the age of criminal prosecution ("Raise the
Age" law) and raised the minimum age of juvenile delinquency jurisdic-
tion ("Raise the Lower Age" law). The current statute governs the
retention and destruction of fingerprints and photographs of young
people arrested as delinquents or whose cases initiate as juvenile
offenders but are subsequently removed to family court pursuant to arti-
cle 735 or 722 of the criminal procedure law. The bill would extend
those provisions to cases that start as adolescent offenders but are
removed to family court. The bill also removes the age "eleven" from
both subsections (1) and (2).
Section two also adds subdivision (8) to FCA § 354.1. This section
requires the destruction of all fingerprints, palmprints, photographs,
and related information obtained pursuant to section 306.1 upon the
expungement of a juvenile delinquency adjudication pursuant to section
375.1 or 375.2.
Section two also adds subdivision (9) to FCA § 354.1. This amendment
prohibits retention of any juvenile DNA or other genetic material in any
database maintained by a government entity other than those used for
parentage, juvenile offender, or adolescent offender proceedings.
Section three amends FCA § 375.1 to require automatic expungement, not
merely sealing, for cases terminated in favor of the accused young
person, as well as for adjudications based upon the now-repealed mari-
juana and loitering for the purposes of prostitution crimes under former
sections 221.15, 221.20, 221.35, 221.40, 240.36, and 240.37 of the penal
law. This section also applies to individuals who were previously adju-
dicated delinquent for an act committed while under the age of twelve,
other than the acts enumerated in section 301.2. An agreement to forgo
the expungement may not be a condition of an adjournment in contem-
plation of dismissal. Section Three instructs those entities maintaining
records and those who are the subjects of juvenile records of the
effects of expungement. Recognizing that local probation departments
must check prior records of adjusted cases under Family Court Act §
308.1(4), local probation departments would be permitted to seal their
records from public view and access them solely for that purpose. The
proposal calls for automatic vacatur, dismissal, and expungement for
those previously adjudicated delinquent for acts that are no longer
considered crimes and automatic expungement for juvenile records of
respondents in whose favor delinquency proceedings were terminated prior
to the enactment of the bill.
Section four amends FCA § 375.2 to replace sealing with expungement,
clarify expungement by motion, and create automatic expungement for
juvenile delinquency adjudications. This section expands eligibility for
expungement to all delinquency adjudications, regardless of the offense.
It also amends the jurisdictional timing for filing a motion to expunge
from the age of eighteen to any time after the conclusion of the dispo-
sition. An agreement to forgo expungement may not be a condition of a
plea or admission to a reduced charge. This section adds explicit
factors that the court must weigh when deciding a motion for expunge-
ment, including, but not limited to, the best interest of the person,
nature of offense, and adverse consequences resulting from retention of
the record. Once a youth reaches the age of 21, all records relating to
a juvenile delinquency adjudication must automatically be expunged. The
section further requires all agencies involved in the adjudication of
the case, from arrest to disposition, to affirm to the court that all
paper and electronic copies of such records have been destroyed.
Section five amends FCA § 381.2 to replace sealing with expungement in
regard to the use of records in other courts.
Section six amends FCA § 381.3 to replace "police" with "law enforce-
ment" and defines law enforcement records. Subdivision 2 provides great-
er protection of juvenile delinquency records maintained by law enforce-
ment by requiring the destruction of records under specified
circumstances consistent with the provisions of sections 375.1 and
375.2. The section clarifies the prohibition against law enforcement's
use of its internal, confidential records without a court order pursuant
to the new § 306.1. The section creates a civil cause of action for
those aggrieved by violations of the outlined protections.
EXISTING LAW:
FCA Article 3 governs juvenile delinquency proceedings in New York
State. Article 3 provides for the automatic sealing of juvenile delin-
quency records whenever the case results in a termination that is favor-
able to the respondent, including cases that are dismissed or withdrawn.
See § 375.1. The automatic sealing of "favorable" records is purely
statutory and parallels similar criminal procedure law provisions. When
the respondent has been adjudicated delinquent, the court may, in its
discretion, order that the records be sealed after a motion has been
made. Such motion may not be made until after the respondent's eigh-
teenth birthday and so long as the adjudication was not for a designated
felony. See § 375.2. Last, the court may exercise its inherent power to
expunge a court record, though it arguably lacks the authority to order
the expungement of non-court files, including of law enforcement
records. See § 375.3. Discretionary sealing and expungement provisions
codify Court of Appeals case law; ergo, the court would possess the
power in the absence of a sealing statute.
If a record is not sealed or expunged, the relevant documents are
protected solely by the weak privacy provision found in FCA Section 166,
to wit, they "shall not be open to indiscriminate public inspection."
Section 166 applies indefinitely to cases which have yet to be dismissed
or withdrawn, even though many dispositions are "favorable" to the
respondent and will hence be ultimately sealed. The Section dates from
1922 and has not been significantly amended for close to a century.
FCA Article 3 also governs the retention of juvenile fingerprints,
photographs, and palmprints initially taken as a result of law enforce-
ment action. See § 306.1. This provision currently applies to only juve-
nile delinquencies and juvenile offender cases removed to family court.
Such fingerprints are forwarded to and maintained by the Division of
Criminal Justice Services (DCJS). If a case is disposed of in any manner
other than an adjudication of juvenile delinquency for a felony, all
fingerprints or information relating to the allegations obtained by DCJS
shall be destroyed upon notification by the terminating entity (family
court, department of probation, or presentment agency). See § 354.1. The
family court shall notify DJCS of felony adjudications of juvenile
delinquency, in which case the fingerprint profile will be maintained.
See § 354.1(1). If the young person has no criminal convictions or pend-
ing criminal actions, DCJS shall destroy all fingerprints upon their
21st birthday.
LEGISLATIVE HISTORY:
2021-22: 5.9228
JUSTIFICATION:
INTRODUCTION
Records are created the instant a child comes into contact with law
enforcement and the juvenile legal system. While records serve an impor-
tant and functional role in aiding the court during the pendency of a
case, this utility diminishes and is replaced with a prejudicial effect
over time. Despite misconceptions that existing state confidentiality
and sealing provisions provide adequate protections, young people face
continuing stigma and are excluded from housing, educational, employment
and other opportunities. See generally, J. Radice, "The Juvenile Record
Myth," 106 Geo. L.J. 365 (2018). In New York, juvenile arrest,
probation, prosecutorial, and court records follow youth into adulthood.
The collateral consequences of those juvenile records significantly
affect young people throughout their lives by impeding their ability to
achieve gainful employment, serve in the military, enroll in higher
education, obtain occupational licensing, or acquire citizenship. See,
e.g., U.S. Dept. of Justice Office of Juvenile Justice and Delinquency
Prevention, Expunging Juvenile Records: Misconceptions, Collateral
Consequences, and Emerging Practices (Dec. 2020); Juvenile Law Center,
Failed Policies, Forfeited Futures: Revisiting a Nationwide Scorecard
on Juvenile Records (July 2020); M. Sobie, "A Life Sentence for Chil-
dren: NY's Antiquated Prejudicial Juvenile Justice Record Provisions,"
N.Y.L.J. (Dec. 16, 2021).
It is well-settled that it would be "antithetical to the purpose of the
Family Court Act to maintain records which would not benefit society and
would result in bringing unwarranted discrimination to a child's
future." Dorothy D. v. New York City Prob. Dep't, 49 N.Y.2d 212, 215
(1980). The New York Court of Appeals clearly recognizes the myriad of
negative consequences that encumber youth for whom records are kept.
"That the very existence of (Family Court delinquency) records, despite
provisions for confidentiality, may constitute a substantial impediment
to entry into institutions of higher learning, government or private
employment, the armed services, or the professions, cannot be seriously
questioned." Id. at 213. The Court has repeatedly expressed that "(the)
overriding intent of the juvenile delinquency article is to empower the
Family Court to intervene and positively impact the lives of troubled
young people" and "to extinguish the causes of juvenile delinquency
through rehabilitation" rather than to punish. Matter of Robert J. 2
N.Y.3d 339, 346 (2004); Matter of Quinton A., 49 N.Y.2d 328, 335 (1980).
See also Matter of Emily P., 63 Misc. 3d 755, 833-34 (N.Y. Fam. Ct.
2019). Notwithstanding the rehabilitative intention of the Family Court
Act, the current record-related provisions harm, rather than protect,
young people long after the conclusion of their cases.
In 2015, the American Bar Association issued the "Model Act Governing
the Confidentiality and Expungement of Juvenile Delinquency Records."
The "Model Act" calls for comprehensive protection of juvenile records
by prioritizing confidentiality and the automatic expungement of all
records generated by juvenile system involvement, expanding beyond just
court files. Many states follow the Model Act by prioritizing expunge-
ment and ensuring confidentiality for all juvenile records. See, e.g.,
West's Colorado Revised Statutes § 19-1306; Illinois Compiled Statutes §
405/5-915; Ohio Revised Code §§ 2151.355, 2151.356, 2151.358; Revised
Code of Washington § 13.50.050; Delaware Code §§ 1014-1018; North Caro-
lina General Statutes §§ 7B3200, 3201; Arizona Revised Statutes §
13-921; Arkansas Code §§ 927-309(b)(1)(A), (b)(2); West's California
Code, Div. 2, C. 2, Art. 22, § 826(a); Connecticut General Statutes §§
46b133a,46b-146; West's Florida Statutes § 943.0582; Minnesota Statutes
§ 260B.235 9; Pennsylvania Consolidated Statutes § 9123; West's Code of
Virginia § 16-1-306.
This proposal adopts many of the provisions set forth in the "Model Act"
and is consistent with state and national trends to protect criminal
records through "ban the box" and "clean slate" reforms. Too often,
young people affected by the juvenile delinquency system are excluded
from such movements and may have fewer legal protections than adults and
"Youthful Offenders" in criminal court. This outcome runs counter to the
purpose of Family Court and modern developmental science. Youth have the
capacity for change and research confirms a significant majority of
arrested children are never again charged with criminal activity, before
or after attaining majority. See S. Shah, "Future Interrupted: The
Collateral Damage Caused by Proliferation of Juvenile Records," Juvenile
Law Center (Feb. 2016). As such, legislatures should consider measures
that "equalize the wide disparity between the Family Courts and the
criminal courts." M. Sobie, "A Life Sentence for Children: NY's Anti-
quated Prejudicial Juvenile Justice Record Provisions," supra. This
proposal aims to extend to New York's young people measures to alleviate
the collateral consequences and lifelong stigma resulting from system
involvement.
CONFIDENTIALITY
Expungement, sealing, and confidentiality are three legally distinct
record protections. Expungement requires permanent destruction of
records, sealing requires courts to make records available to specific
agencies but unavailable to the public, and confidentiality prevents
dissemination, access, or use of records.
This proposal incorporates a new confidentiality section, proposed Fami-
ly Court Act § 301.6, to address the significant weaknesses in current
law. See Schwawl v. Grant (2 Dept. 2008) 47 A.D.3d 698. In the absence
of sealing, FCA § 166 is the only provision governing access to juvenile
delinquency records. However, it does not ensure the confidentiality of
those records. Indeed, as explained in the Practice Commentary of
McKinney's Family Court Act:
"A common assumption is that Family Court records are confidential. For
better or for worse, that assumption is erroneous. The vague incomplete
confidentiality provision of Section 166, which dates from the Family
Court Act's predecessor code, the 1922 Children's Court Act, stops well
short of full confidentiality. Using the phrase 'shall not be open to
indiscriminate public inspection,' the section suggests that public
discriminate or discriminating inspection is permitted... Perhaps more
surprisingly, the section addresses "public" inspection, but is silent
concerning non-public access, although records are often sought by
employers, the government, or the respondent herself."
Prof. Merril Sobie, Practice Commentary, McKinney's Family Ct. Act §
166. Section 166 leaves the door open to the dissemination of juvenile
records by prosecution and police personnel, regardless of the case's
ultimate outcome. Ironically, the records of Youthful Offenders who are
prosecuted in the criminal courts are afforded a greater degree of
confidentiality. See Criminal Procedure Law Section 720.35.
Presently, young adults with juvenile records are unable to move about
the world freely, without fear of their records being shared. Confiden-
tiality should be a baseline protection for all juvenile delinquency
records. Section One of this proposal accomplishes that. Unlike the
current iteration of Family Court privacy provisions, "confidentiality"
is explicit in § 301.6. The proposal mirrors the ABA "Model Act" Section
IV(a), outlining the specific records that fall under the confidentiali-
ty umbrella, and requires that records "shall not be open to inspection
nor released to any person, department, agency, or entity."
With the understanding that records are useful for certain court or
government purposes, this proposal includes a mechanism for requesting
access to confidential information through notice and hearing. This
creates transparency regarding who is requesting access to what records
and curtails surreptitious sharing of information by agencies to both
internal and external parties. Finally, this proposal creates a civil
cause of action for the violation of confidentiality requirements. Sanc-
tions are necessary for enforcement, accountability and to redress
potential harm. As of 2020, 34 states impose either civil or criminal
sanctions for individual or agency failure to comply with confidentiali-
ty protections. Juvenile Law Center, Failed Policies, Forfeited Futures:
Revisiting a Nationwide Scorecard on Juvenile Records, supra.
DNA OR OTHER GENETIC MATERIAL
Law enforcement officers often obtain DNA samples by consent or surrep-
titiously, by offering arrested juveniles bottles of water, bubble gum,
or cigarettes for inclusion in a local DNA index indefinitely. This
practice has drawn significant concern from local and state legislators,
community groups and citizens throughout the state. This proposal
addresses the issue by prohibiting the retention of any juvenile DNA or
other genetic material in any database maintained by a government enti-
ty, other than those used for parentage, juvenile offender or adolescent
offender proceedings.
EXPUNGEMENT
Expungement is the only adequate and complete remedy to protect against
the lasting consequences and future stigma of a juvenile record. In the
twenty-first century, juvenile records are electronically stored, cata-
logued, and widely available.
While sealed records cannot ordinarily be obtained or reviewed, the
relevant records are nonetheless maintained. System-involved agencies,
such as prosecutorial offices and law enforcement entities, learn of
sealed arrests through instantaneous searches within their databases.
While these cases are labelled as "sealed" and individual public serv-
ants may not gain specific information about the facts of a case, the
knowledge of a preexisting history is enough for subconscious bias to
affect the myriad discretionary decisions made throughout the life of a
case. These records exist even for proceedings or actions that were
dismissed, declined, voided, and found to have no merit. As a result,
individuals with dismissed cases suffer equivalent consequences to those
with adjudications.
For example, a young adult with a case dismissed on the merits may be
denied a job in the public sector. Although the case would be sealed,
pursuant to the current FCA § 375.1, the case would likely appear on a
public agency's internal database. If the arrest and delinquency action
were expunged, no history of such record would exist, eliminating the
potential consequence and bias.
Access to juvenile records also contributes to cyclical system involve-
ment. Law enforcement agencies maintain identification information in
several internal databases, made accessible to officers when patrolling,
investigating, and making subsequent arrests. These databases include
juvenile arrests, regardless of how an arrest was resolved. Readily
available juvenile arrest information contributes to the long-term
policing of communities of color, who already face over-surveillance and
escalated police presence in schools and neighborhoods.
Expungement is also necessary to reduce social stigma and ensure records
are not available to future employers, schools, associates, law enforce-
ment, etc. This proposal clarifies the legal effect of expungement,
enabling the person who is subject of the record to treat the arrest or
case as if it never occurred, and ensuring that they are not penalized
for failing to acknowledge such record. Relieving affected individuals
from any obligation to identify a past, expunged case, truly removes the
burden of collateral consequences attached to such a case. Today, many
young people over-disclose their sealed or expunged juvenile delinquency
arrests or adjudications out of fear that an employer, law enforcement
agency, or immigration official might have knowledge of the record. The
proposed amendment allows counsel to explicitly advise their young
clients that if or when their record is expunged, they will never have
to disclose it.
Procedures for young people to petition to seal or expunge their juve-
nile records are historically cumbersome. Attorneys can assist young
people and adults with filing sealing and expungement motions; however,
the affected person must first know that their record is eligible for
relief. Current sealing and expungement statutes are confusing and
complicated. Often attorneys and their young clients lose connection
over years of separation and changes in circumstances that can occur
from adolescence to adulthood. As a result, Section 375.2 sealing
motions are rare and Section 375.3 expungement motions are virtually
non-existent. The burden of sealing and expungement should not fall on a
young person. Recent national legislative trends and the "Model Act"
make it easier for young people by providing for automatic destruction
without action on the part of the youth. See Anne Teigen, "Automatically
Sealing or Expunging Juvenile Records," 24 LegisBrief 27 (Nat'l Conf. of
St. Legislatures, Washington D.C.) (July 2016).
Consequently, expungement must be the minimum level of protection for
those whose delinquency action terminated in their favor. This proposal
requires automatic expungement, not merely sealing, of records for cases
terminated favorably to the accused, as well as adjudications of indi-
viduals based on the now-repealed marijuana and loitering for purposes
of prostitution charges. In addition, the proposal adds voided arrests
to the list of cases that are considered favorably terminated, in line
with CPL 160.50(3)(j).
Notwithstanding the clear benefits of automatic expungement, the
proposal maintains the mechanism of expungement by motion. However, the
proposal adds statutory factors for consideration by the court, modelled
after those put forth by the "Model Act." Rather than relying on overly
punitive factors or allowing for total discretion, this proposal
provides a more holistic approach-balancing the best interest of the
person, their rehabilitation, the nature of the offense, and adverse
consequences of retention of a record. Further, it was important for
this proposal to include enumerated factors to better unify courts'
decision-making. While there has been movement by some judges toward
consideration of more holistic factors, see Matter of Emily P., 63
Misc.3d 755 (Fam. Ct., N.Y. Co., 2019), some jurisdictions still main-
tain antiquated precedent for expungement, such as a need for "complete
innocence." Curtailing this wide ranging and varied analysis will not
only make it more efficient for practitioners but will better align the
relief with the rehabilitative intent of the Family Court Act.
The expungement by motion provision of this proposal will provide an
avenue of relief for all young people, regardless of age or offense,
including designated felonies. This approach is consistent with FCA §
375.3, as well as data and research which demonstrate the enormous
potential of young people for rehabilitation. Accordingly, no youth
should be automatically foreclosed from the complete relief of expunge-
ment. Additionally, the proposal amends the time when a respondent may
request expungement. This relief should be available to young people, in
appropriate circumstances, before automatic expungement is triggered on
their 21st birthday.
Finally, like all of the expungement provisions outlined in this
proposal, expungement by motion requires the destruction of all juvenile
delinquency records, not just the family court's own files.
PROTECTION FOR THE ENTIRE JUVENILE FILE
Currently, even if a young person obtains court-ordered expungement
through FCA § 375.3, an expungement order does not provide complete
relief. The practical application of an expungement results in the
destruction of court records only, leaving in place all other agency
records created through the life of a case (from arrest to disposition).
This proposal closes that loophole. To ensure that each child has an
opportunity for a productive future, and for rehabilitation to be effec-
tive, juvenile system involvement records should be eradicated so chil-
dren can start from a clean slate upon reaching adulthood. See "Model
Act"; Juvenile Law Center, Failed Policies, Forfeited Futures: Revisit-
ing a Nationwide Scorecard on Juvenile Records, supra.
Some system-involved youth express interest in serving their communities
as law enforcement officers or by enlisting in the military someday.
However, law enforcement agencies continue to utilize their internal
records of juvenile arrests to prejudice individuals both in the inves-
tigatory context and when individuals apply for employment with a law
enforcement agency. See R.C. v. City of New York, 2019 N.Y. Slip Op.
32624 (N.Y. Sup. Ct. 2019) (Ongoing case in New York City whereby the
plaintiffs seek redress from the NYPD policy and practice allowing the
use of information from records of arrest to target predominately Black
and Latinx people for investigation, arrest, and harsher penalties.)
This proposal calls for two remedies to address this issue. First, it
requires confidentiality of all juvenile records, protecting against
internal access to records without due process. Second, it provides for
the destruction of law enforcement records at various points in a case.
This new provision will trigger destruction of all law enforcement
records relating to an arrest when other records are required to be
destroyed, such as when a matter is terminated in favor of the youth.
FISCAL IMPLICATIONS:
To be determined.
EFFECTIVE DATE:
This act shall take effect on the ninetieth day after it shall have
become a law.
2023-S3104 - Bill Text download pdf
S T A T E O F N E W Y O R K
________________________________________________________________________
3104
2023-2024 Regular Sessions
I N S E N A T E
January 27, 2023
___________
Introduced by Sen. BRISPORT -- read twice and ordered printed, and when
printed to be committed to the Committee on Children and Families
AN ACT to amend the family court act, in relation to the confidentiality
and expungement of records in juvenile delinquency cases in the family
court
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The family court act is amended by adding a new section
301.5 to read as follows:
§ 301.5. CONFIDENTIALITY OF JUVENILE DELINQUENCY RECORDS. 1. "JUVENILE
DELINQUENCY RECORD" REFERS TO THE RECORDS, REPORTS AND INFORMATION MAIN-
TAINED IN ANY FORM, INCLUDING ELECTRONIC, BY THE FAMILY COURT, JUVENILE
PROBATION, THE PRESENTMENT AGENCY, STATE CRIMINAL JUSTICE INFORMATION
SYSTEMS, LAW ENFORCEMENT AGENCIES OR ANY OTHER PUBLIC SERVANT DOCUMENT-
ING THE JUVENILE'S CONTACT WITH THE JUVENILE JUSTICE SYSTEM FROM THE
TIME OF INVESTIGATION AND ARREST.
2. THE FOLLOWING RECORDS, REPORTS, AND INFORMATION ACQUIRED OR GENER-
ATED IN FAMILY COURT, JUVENILE PROBATION OR BY ARRESTS CONCERNING JUVE-
NILES SHALL BE CONFIDENTIAL AND SHALL NOT BE OPEN TO INSPECTION NOR
RELEASED TO ANY PERSON, DEPARTMENT, AGENCY, OR ENTITY:
(A) JUVENILE LEGAL FILES, INCLUDING BUT NOT LIMITED TO:
(I) JUVENILE DELINQUENCY PETITIONS;
(II) ADOLESCENT OFFENDER PETITIONS IF THE ACTION IS TRANSFERRED OR
REMOVED TO FAMILY COURT PURSUANT TO ARTICLE SEVEN HUNDRED TWENTY-TWO OF
THE CRIMINAL PROCEDURE LAW;
(III) JUVENILE OFFENDER PETITIONS IF THE ACTION IS REMOVED TO FAMILY
COURT PURSUANT TO ARTICLE SEVEN HUNDRED TWENTY-FIVE OF THE CRIMINAL
PROCEDURE LAW;
(IV) PREDISPOSITION REPORTS, INCLUDING PROBATION INVESTIGATIONS AND
DIAGNOSTIC ASSESSMENTS;
(V) RISK ASSESSMENT INSTRUMENTS;
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD05815-01-3
S. 3104 2 (VI) NOTICES; (VII) MOTIONS; (VIII) LEGAL MEMORANDA; AND (IX) ORDERS. (B) LAW ENFORCEMENT RECORDS, INCLUDING BUT NOT LIMITED TO: (I) FINGERPRINTS, PHOTOGRAPHS, PALMPRINTS; (II) DNA SAMPLES; (III) ARREST RECORDS; (IV) DEMOGRAPHIC INFORMATION THAT IDENTIFIES A JUVENILE OR THE FAMILY OF A JUVENILE; AND (V) STATE CRIMINAL JUSTICE INFORMATION SYSTEM RECORDS. (C) PERSONAL SOCIAL RECORDS, INCLUDING BUT NOT LIMITED TO: (I) RECORDS OF JUVENILE PROBATION OFFICERS; (II) MEDICAL RECORDS; (III) PSYCHIATRIC OR PSYCHOLOGICAL RECORDS; (IV) REPORTS OF PRELIMINARY INQUIRIES AND PREDISPOSITION REPORTS; (V) SUPERVISION RECORDS; (VI) BIRTH CERTIFICATES; (VII) INDIVIDUALIZED SERVICE PLANS; (VIII) DETENTION RECORDS; AND (IX) DEMOGRAPHIC INFORMATION THAT IDENTIFIES A JUVENILE OR THE FAMILY OF A JUVENILE. 3. UPON A WRITTEN PETITION AND A FINDING OF COMPELLING INTEREST, AND IN ACCORDANCE WITH THE CONDITIONS BELOW, THE JUVENILE COURT MAY ORDER RELEASE OF THE JUVENILE NAME AND DESIGNATED PORTIONS OF THE RECORDS, REPORTS, AND INFORMATION DESCRIBED IN PARAGRAPHS (A) THROUGH (C) OF SUBDIVISION TWO OF THIS SECTION TO ANOTHER PERSON, DEPARTMENT, ENTITY, OR AGENCY. (A) THE REQUESTING PARTY SHALL PROVIDE NOTICE TO THE JUVENILE AND HIS OR HER ATTORNEY OF THE PETITION AND AN OPPORTUNITY TO OBJECT. (B) THE COURT SHALL HOLD A HEARING ON THE PETITION IF REQUESTED BY THE PETITIONER OR JUVENILE. (C) THE PETITION FILED WITH THE COURT AND SERVED ON THE JUVENILE AND HIS OR HER ATTORNEY SHALL STATE THE FOLLOWING: (I) THE REASON THE PERSON, DEPARTMENT, ENTITY, OR AGENCY IS REQUESTING THE INFORMATION; (II) THE USE TO BE MADE OF THE INFORMATION, INCLUDING ANY INTENDED RE-DISCLOSURE; AND (III) THE NAMES OF THOSE PERSONS WITHIN THE DEPARTMENT, ENTITY, OR AGENCY WHO WILL HAVE ACCESS TO THE INFORMATION. (D) IN RULING ON THE PETITION, THE COURT SHALL CONSIDER THE PRIVACY INTERESTS OF THE JUVENILE AND POTENTIAL RISK OF HARM TO THE JUVENILE, WHETHER A COMPELLING REASON EXISTS FOR RELEASE OF THE INFORMATION, AND WHETHER THE RELEASE IS NECESSARY FOR THE PROTECTION OF AN IMPORTANT INTEREST. (E) THE COURT MAY IMPOSE RESTRICTIONS ON THE USE AND RE-DISCLOSURE OF THE RELEASED INFORMATION. 4. AN OFFICER OF THE COURT WITH WHOM THE PROCEEDINGS PURSUANT TO THIS ARTICLE ARE FILED, OR HIS OR HER CLERK, EITHER BEFORE OR AFTER THE CONCLUSION OF SUCH PROCEEDINGS, SHALL NOT PERMIT A COPY OF ANY OF THE DOCUMENTS RELATING TO SUCH PROCEEDINGS TO BE TAKEN OR SEEN BY ANY PERSON OTHER THAN THE RESPONDENT, THE ATTORNEY FOR THE CHILD, AN ATTORNEY EMPLOYED BY THE PRESENTMENT AGENCY, OR AN OFFICIAL EMPLOYED BY THE PROBATION SERVICE, EXCEPT BY ORDER OF THE COURT. 5. NOTWITHSTANDING THE PROVISIONS OF SUBDIVISION THREE OF THIS SECTION, AN OFFICER OF THE COURT, OR HIS OR HER CLERK, SHALL NOT PERMIT S. 3104 3 ACCESS OF ANY PERSON TO A RECORD WHICH HAS BEEN EXPUNGED PURSUANT TO SECTION 375.1 OR SECTION 375.2 OF THIS ARTICLE. 6. A VIOLATION OF THIS SECTION SHALL CREATE A CAUSE OF ACTION FOR CIVIL DAMAGES OF UP TO ONE THOUSAND DOLLARS. § 2. The section heading and subdivisions 1 and 2 of section 354.1 of the family court act, the section heading as added by chapter 920 of the laws of 1982 and subdivisions 1 and 2 as amended by chapter 810 of the laws of 2021, are amended and two new subdivisions 8 and 9 are added to read as follows: Retention and destruction of fingerprints; DNA AND OTHER GENETIC MATE- RIAL of persons alleged to be juvenile delinquents. 1. If a person whose fingerprints, palmprints or photographs were taken pursuant to section 306.1 OF THIS ARTICLE or WHO was initially fingerprinted as a juvenile OR ADOLESCENT offender and the action is subsequently removed to a family court pursuant to article seven hundred twenty-five OR ARTICLE SEVEN HUNDRED TWENTY-TWO of the criminal proce- dure law is adjudicated to be a juvenile delinquent for a felony, the family court shall forward or cause to be forwarded to the division of criminal justice services notification of such adjudication and such related information as may be required by such division, provided, however, in the case of a person twelve years of age such notification shall be provided only if the act upon which the adjudication is based would constitute a class A or B felony. 2. If a person whose fingerprints, palmprints or photographs were taken pursuant to section 306.1 OF THIS ARTICLE or WHO was initially fingerprinted as a juvenile OR ADOLESCENT offender and the action is subsequently removed to family court pursuant to article seven hundred twenty-five OR ARTICLE SEVEN HUNDRED TWENTY-TWO of the criminal proce- dure law has had all petitions disposed of by the family court in any manner other than an adjudication of juvenile delinquency for a felony, but in the case of acts committed when such person was twelve years of age [which would constitute] OTHER THAN AN ADJUDICATION OF JUVENILE DELINQUENCY FOR a class A or B felony [only], all such fingerprints, palmprints, photographs, and copies thereof, and all information relat- ing to such allegations obtained by the division of criminal justice services pursuant to section 306.1 OF THIS ARTICLE shall be destroyed forthwith. The clerk of the court shall notify the commissioner of the division of criminal justice services and the heads of all police departments and law enforcement agencies having copies of such records, who shall destroy such records without unnecessary delay. 8. WHEN A PERSON WHOSE FINGERPRINTS, PALMPRINTS OR PHOTOGRAPHS WERE TAKEN PURSUANT TO SECTION 306.1 OF THIS ARTICLE AND WHO IS SUBSEQUENTLY ADJUDICATED A JUVENILE DELINQUENT FOR A FELONY, BUT IN THE CASE OF ACTS COMMITTED WHEN SUCH PERSON WAS TWELVE YEARS OF AGE OTHER THAN AN ADJUDI- CATION OF JUVENILE DELINQUENCY FOR A CLASS A OR B FELONY, AND THE CASE IS EXPUNGED PURSUANT TO SECTION 375.1 OR SECTION 375.2 OF THIS ARTICLE, ALL FINGERPRINTS, PALMPRINTS, PHOTOGRAPHS, AND RELATED INFORMATION AND COPIES THEREOF OBTAINED PURSUANT TO SECTION 306.1 OF THIS ARTICLE IN THE POSSESSION OF THE DIVISION OF CRIMINAL JUSTICE SERVICES, ANY POLICE DEPARTMENT, LAW ENFORCEMENT AGENCY OR ANY OTHER AGENCY SHALL BE DESTROYED FORTHWITH. THE DIVISION OF CRIMINAL JUSTICE SERVICES SHALL NOTIFY THE AGENCY OR AGENCIES WHICH FORWARDED FINGERPRINTS TO SUCH DIVI- SION PURSUANT TO SECTION 306.1 OF THIS ARTICLE OF THEIR OBLIGATION TO DESTROY THOSE RECORDS IN THEIR POSSESSION. 9. IF ANY DNA OR OTHER GENETIC MATERIAL WAS OBTAINED FROM A JUVENILE BY ANY LAW ENFORCEMENT OFFICER OR OTHER PUBLIC SERVANT ACTING IN THE S. 3104 4 COURSE OF HIS OR HER OFFICIAL DUTIES OR BY A STATE OR LOCAL GOVERNMENT ENTITY, OTHER THAN DNA OR OTHER GENETIC MATERIAL OBTAINED IN CONNECTION WITH A PARENTAGE OR RELATED PROCEEDING OR A JUVENILE OFFENDER OR ADOLES- CENT OFFENDER PROCEEDING NOT REMOVED TO THE FAMILY COURT, SUCH MATERIAL AND ANY ANALYSES OR REPORTS REGARDING SUCH MATERIAL, AS WELL AS ANY RECORD INCLUDED IN ANY DNA IDENTIFICATION INDEX MAINTAINED BY ANY GOVERNMENT ENTITY, SHALL BE EXPUNGED FORTHWITH. ANY DNA OR OTHER GENETIC MATERIAL OBTAINED IN CONNECTION WITH A PARENTAGE PROCEEDING RELATED THERETO OR ANY JUVENILE OFFENDER OR ADOLESCENT OFFENDER PROCEEDING MAY BE USED ONLY IN CONNECTION WITH SUCH PROCEEDING AND MAY NOT BE DISCLOSED TO OR UTILIZED BY ANY LAW ENFORCEMENT AGENCY OR ADMITTED INTO EVIDENCE IN ANY PROCEEDING UNDER THIS ARTICLE. § 3. Section 375.1 of the family court act, as added by chapter 920 of the laws of 1982, subdivision 1 as amended by chapter 41 of the laws of 2010, paragraphs (d), (f) and (h) of subdivision 2 and subdivision 3 as amended and paragraph (i) of subdivision 2 as added by chapter 398 of the laws of 1983, is amended to read as follows: § 375.1. Order upon termination of a delinquency action in favor of the respondent. 1. Upon termination of a delinquency proceeding against a respondent in favor of such respondent, unless the presentment agency upon written motion with not less than eight days notice to such respondent demonstrates to the satisfaction of the court that the inter- ests of justice require otherwise or the court on its own motion with not less than eight days notice to such respondent determines that the interest of justice require otherwise and states the reason for such determination on the record, the clerk of the court shall immediately notify the counsel for the child, the director of the appropriate presentment agency, and the heads of the appropriate probation depart- ment and police department or other law enforcement agency, that the proceeding has terminated in favor of the respondent and, unless the court has directed otherwise, that the records of such action or proceeding, other than those destroyed pursuant to section 354.1 of this act, shall be [sealed] EXPUNGED. Upon receipt of such notification all official records and papers, including judgments and orders of the court, but not including public court decisions or opinions or records and briefs on appeal, relating to the arrest, the prosecution and the probation service proceedings, including all duplicates or copies there- of, on file with the court, police agency, probation service and presentment agency shall be [sealed] EXPUNGED, and not made available to any person or public or private agency; PROVIDED, HOWEVER, THAT THE PROBATION SERVICE MAY RETAIN A COPY OF THE RECORD UNDER SEAL SOLELY IN ORDER TO COMPLY WITH SUBDIVISION FOUR OF SECTION 308.1 OF THIS ARTICLE UNTIL THE RESPONDENT'S EIGHTEENTH BIRTHDAY OR THE CONCLUSION OF THEIR PROBATION SUPERVISION, AT WHICH TIME ALL RECORDS SHALL BE EXPUNGED. Such records shall remain sealed during the pendency of any motion made pursuant to this subdivision. 2. THE EFFECT OF HAVING A RECORD EXPUNGED, WHETHER PURSUANT TO SUBDI- VISION ONE OF THIS SECTION OR PURSUANT TO SECTION 375.2 OF THIS PART, SHALL BE THAT ALL JUVENILE RECORDS SHALL BE DESTROYED AND THEREAFTER NO PERSON OR AGENCY SHALL BE ALLOWED TO RELEASE ANY INFORMATION CONCERNING SUCH RECORD, EXCEPT AS PROVIDED BY THIS SECTION. THE COURT, JUVENILE PROBATION OFFICE, LAW ENFORCEMENT OFFICES, PRESENTMENT AGENCY AND ANY OTHER RELEVANT AGENCY SHALL REPLY TO AN INQUIRY THAT NO JUVENILE RECORD EXISTS WITH RESPECT TO THE PERSON WHOSE RECORD WAS EXPUNGED. 3. WITH RESPECT TO THE MATTER IN WHICH THE RECORD WAS EXPUNGED AND ANY PRECEDING ACTION RESULTING FROM THE SAME ALLEGED CONDUCT, THE PERSON WHO S. 3104 5 IS THE SUBJECT OF THE RECORD AND THE PERSON'S PARENT SHALL NOT BE HELD THEREAFTER UNDER ANY PROVISION OF LAW TO BE GUILTY OF PERJURY OR OTHER- WISE GIVING A FALSE STATEMENT BY REASON OF THE PERSON'S FAILURE TO RECITE OR ACKNOWLEDGE SUCH RECORD. 4. For the purposes of subdivision one OF THIS SECTION, a delinquency proceeding shall be considered terminated in favor of a respondent where: (a) the petition is withdrawn; or (b) the petition is dismissed under section 315.1 or 315.2 OF THIS ARTICLE and the presentment agency has not appealed from such order or the determination of an appeal or appeals from such order has been against the presentment agency; or (c) the petition has been deemed to have been dismissed under section 315.3 and the presentment agency has not appealed from such order or the determination of an appeal or appeals from such order has been against the presentment agency; PROVIDED, HOWEVER, THAT AN AGREEMENT TO PREVENT EXPUNGEMENT UNDER THIS SECTION MAY NOT BE REQUIRED AS A CONDITION OF AN ADJOURNMENT IN CONTEMPLATION OF DISMISSAL UNDER SECTION 315.3 OF THIS ARTICLE; or (d) the petition is dismissed without prejudice under subdivision four of section 325.3 OF THIS ARTICLE and the presentment agency has not appealed from such order or the determination of an appeal or appeals from such order has been against the presentment agency; or (e) the entire petition has been dismissed under subdivision two of section 345.1 OF THIS ARTICLE; or (f) the petition is dismissed under subdivision two of section 352.1 OF THIS PART; or (g) prior to the filing of a petition, the probation department has adjusted the case or terminated the case without adjustment; or (h) prior to the filing of a petition the presentment agency chooses not to proceed to petition; or (i) the petition is dismissed pursuant to a motion made in accordance with subdivision eight, nine or ten of section 332.1 OF THIS ARTICLE; OR (J) FOLLOWING AN ARREST, THE ARRESTING POLICE AGENCY, PRIOR TO THE FILING OF AN ACCUSATORY INSTRUMENT IN COURT, ELECTS NOT TO PROCEED FURTHER; OR (K) THE RESPONDENT WAS ADJUDICATED FOR AN ACT THAT IF COMMITTED BY AN ADULT WOULD CONSTITUTE A CRIME UNDER FORMER SECTIONS 221.15, 221.20, 221.35, 221.40 OR 240.37 OR SECTION 240.36 OF THE PENAL LAW; OR (L) THE RESPONDENT WAS ADJUDICATED FOR AN ACT THAT WAS COMMITTED WHEN THE RESPONDENT WAS UNDER THE AGE OF TWELVE, OTHER THAN THE ACTS ENUMER- ATED IN SUBPARAGRAPH (III) OF PARAGRAPH (A) OF SUBDIVISION ONE OF SECTION 301.2 OF THIS ARTICLE. 5. WHEN A PERSON WAS PREVIOUSLY ADJUDICATED DELINQUENT AS DESCRIBED IN PARAGRAPH (K) OR (L) OF SUBDIVISION FOUR OF THIS SECTION, THE CHIEF ADMINISTRATIVE JUDGE OF THE STATE OF NEW YORK SHALL, IN ACCORDANCE WITH THIS SECTION, AUTOMATICALLY VACATE, DISMISS, AND EXPUNGE SUCH ADJUDI- CATION, AND THE OFFICE OF COURT ADMINISTRATION SHALL IMMEDIATELY NOTIFY THE STATE DIVISION OF CRIMINAL JUSTICE SERVICES, DIRECTING THAT SUCH AGENCY NOTIFY ALL RELEVANT POLICE AND LAW ENFORCEMENT AGENCIES OF THEIR DUTY TO DESTROY ALL RECORDS RELATED TO SUCH CASE. [3.] 6. Records sealed pursuant to subdivision one shall be made available to the respondent or his designated agent and the records and papers of a probation service shall be available to any probation service for the purpose of complying with subdivision four of section 308.1 OF THIS ARTICLE. S. 3104 6 [4.] 7. If prior to the filing of a petition the presentment agency elects not to commence a delinquency action it shall serve a certif- ication of such disposition upon the appropriate probation service and the appropriate police department or law enforcement agency, which, upon receipt [thereto] THEREOF, shall comply with the provision of subdivi- sion one OF THIS SECTION in the same manner as is required with respect to an order of the court. [5.] 8. If the probation service adjusts a delinquency case it shall serve a certification of such disposition upon the appropriate police department or law enforcement agency which, upon receipt thereof, shall comply with the provisions of subdivision one OF THIS SECTION in the same manner as is required thereunder with respect to an order of a court. [6.] 9. A respondent in whose favor a delinquency proceeding was terminated prior to the effective date of this section may upon motion apply to the court, upon not less than twenty days notice to the presentment agency, for an order granting him the relief set forth in subdivision one, and such order shall be granted unless the presentment agency demonstrates to the satisfaction of the court that the interests of justice require otherwise. A respondent in whose favor a delinquency action or proceeding was terminated as defined by subdivisions four and five, prior to the effective date of this section, may apply to the appropriate presentment agency or probation service for a certification as described in such subdivisions granting him the relief set forth therein and such certification shall be granted by such presentment agency or probation service. 10. THE CHIEF ADMINISTRATIVE JUDGE OF THE STATE OF NEW YORK SHALL, IN ACCORDANCE WITH THIS SECTION, AUTOMATICALLY EXPUNGE THE JUVENILE RECORD OF A RESPONDENT IN WHOSE FAVOR A DELINQUENCY PROCEEDING WAS TERMINATED PRIOR TO THE EFFECTIVE DATE OF THIS SUBDIVISION, AND THE OFFICE OF COURT ADMINISTRATION SHALL IMMEDIATELY NOTIFY THE STATE DIVISION OF CRIMINAL JUSTICE SERVICES, DIRECTING THAT SUCH AGENCY NOTIFY ALL RELEVANT POLICE AND LAW ENFORCEMENT AGENCIES OF THEIR DUTY TO DESTROY ALL RECORDS RELATED TO SUCH CASE. § 4. Section 375.2 of the family court act, as added by chapter 920 of the laws of 1982, subdivision 6 as amended by section 77 of part WWW of chapter 59 of the laws of 2017, and subdivision 7 as added by chapter 813 of the laws of 2021, is amended to read as follows: § 375.2. Motion to [seal] EXPUNGE AND AUTOMATIC EXPUNGEMENT after a finding. 1. If an action has resulted in a finding of delinquency pursu- ant to subdivision one of section 352.1 OF THIS ARTICLE, [other than a finding that the respondent committed a designated felony act,] the court may, in the interest of justice and upon motion of the respondent, order the [sealing] EXPUNGEMENT of appropriate records pursuant to subdivision one of section 375.1 OF THIS PART. 2. Such motion must be in writing and may be filed at any time subse- quent to the [entering of such finding] CONCLUSION OF THE PERIOD OF ANY DISPOSITION, INCLUDING, BUT NOT LIMITED TO, THE EXPIRATION OF THE PERIOD OF PLACEMENT, CONDITIONAL DISCHARGE, ORDER OF PROTECTION, ORDER OF RESTITUTION, ORDER OF PROBATION OR ANY EXTENSION THEREOF. Notice of such motion shall be served upon the presentment agency not less than eight days prior to the return date of the motion. Answering affidavits shall be served at least two days before such time. THE COURT SHALL RULE ON THE EXPUNGEMENT AFTER CONSIDERING THE FOLLOWING: (A) THE BEST INTERESTS OF THE PERSON; S. 3104 7 (B) THE AGE OF THE PERSON DURING HIS OR HER CONTACT WITH THE FAMILY COURT OR LAW ENFORCEMENT AGENCY; (C) THE NATURE OF THE OFFENSE; (D) THE DISPOSITION OF THE CASE; (E) THE MANNER IN WHICH THE PERSON PARTICIPATED IN ANY COURT ORDERED REHABILITATIVE PROGRAMMING OR SUPERVISED SERVICES; (F) THE TIME DURING WHICH THE PERSON HAS BEEN WITHOUT CONTACT WITH THE JUVENILE COURT; (G) WHETHER THE PERSON HAS ANY SUBSEQUENT CRIMINAL CONVICTIONS; AND (H) THE ADVERSE CONSEQUENCES THE PERSON WILL SUFFER AS A RESULT OF RETENTION OF HIS OR HER RECORD. 3. The court shall state on the record its reasons for granting or denying the motion. 4. [If such motion is denied, it may not be renewed for a period of one year, unless the order of denial permits renewal at an earlier time. 5.] The court shall not order the [sealing] EXPUNGEMENT of any record except as prescribed by this section or section 375.1 OF THIS PART. [6. Such a motion cannot be filed until the respondent's sixteenth birthday, or, commencing October first, two thousand eighteen, the respondent's seventeenth birthday, or commencing October first, two thousand nineteen, the respondent's eighteenth birthday. 7.] 5. Where an order of fact-finding has been issued pursuant to subdivision one of section 345.1 of this article that includes solely a violation as defined in subdivision three of section 10.00 of the penal law committed by a juvenile sixteen years of age or, commencing on Octo- ber first, two thousand nineteen, seventeen years of age, the records shall be [sealed] EXPUNGED automatically at the expiration, as applica- ble, of a successful period of an adjustment, adjournment in contem- plation of dismissal or conditional discharge. 6. IF AN ACTION HAS RESULTED IN A FINDING OF DELINQUENCY PURSUANT TO SUBDIVISION ONE OF SECTION 352.1 OF THIS ARTICLE, ALL RECORDS OF SUCH ACTION OR PROCEEDING NOT ALREADY EXPUNGED SHALL BE AUTOMATICALLY EXPUNGED BY THE COURT UPON THE ATTAINMENT OF THE RESPONDENT'S TWENTY- FIRST BIRTHDAY. 7. IF EXPUNGEMENT IS OBTAINED AUTOMATICALLY OR BY MOTION, THE COURT SHALL ORDER ALL AGENCIES NAMED IN THE JUVENILE COURT AND PROBATION FILES, INCLUDING EACH LAW ENFORCEMENT AGENCY, OTHER STATE AGENCIES WHICH MAY HAVE RECORDS OF THE JUVENILE'S ADJUDICATION, DETENTION AND TREATMENT FACILITIES, TO SEND THAT PERSON'S JUVENILE RECORD TO THE COURT. THE COURT SHALL THEN DESTROY THE PAPER AND ELECTRONIC RECORDS AND MAIL AN AFFIDAVIT OF EXPUNGEMENT TO THE AGENCY. EACH AGENCY SHALL AFFIRM IN AN AFFIDAVIT OF EXPUNGEMENT TO THE COURT THAT IT DESTROYED ALL PAPER AND ELECTRONIC COPIES OF THE EXPUNGED RECORDS. 8. AN AGREEMENT BY THE RESPONDENT TO PREVENT EXPUNGEMENT UNDER THIS SECTION MAY NOT BE A CONDITION FOR THE RESPONDENT TO ENTER AN ADMISSION TO A REDUCED CHARGE PURSUANT TO SECTION 321.3 OF THIS ARTICLE. § 5. Section 381.2 of the family court act, as added by chapter 920 of the laws of 1982, subdivision 2 as amended by chapter 926 of the laws of 1982, is amended to read as follows: § 381.2. Use of records in other courts. 1. Neither the fact that a person was before the family court under this article for a hearing nor any confession, admission or statement made by him OR HER to the court or to any officer thereof in any stage of the proceeding is admissible as evidence against him OR HER or his OR HER interests, in any other court. S. 3104 8 2. Notwithstanding the provisions of subdivision one OF THIS SECTION, another court, in imposing sentence upon an adult after conviction may receive and consider the records and information on file with the family court, unless such records and information have been [sealed] EXPUNGED pursuant to section 375.1 OR SECTION 375.2 OF THIS ARTICLE. § 6. Section 381.3 of the family court act, as added by chapter 920 of the laws of 1982, paragraph (b) of subdivision 2 as amended by chapter 926 of the laws of 1982, is amended to read as follows: § 381.3. Use of [police] LAW ENFORCEMENT records. 1. All [police] LAW ENFORCEMENT records relating to the arrest, DETENTION, APPREHENSION, and disposition of any person under this article shall be kept in files separate and apart from the arrests of adults and shall be withheld from public inspection. 2. ALL LAW ENFORCEMENT RECORDS RELATING TO THE ARREST, DETENTION, APPREHENSION, AND DISPOSITION OF ANY JUVENILES SHALL BE DESTROYED FORTH- WITH UPON THE OCCURRENCE OF ONE OF THE FOLLOWING: (A) AFTER THE ARREST OF SUCH PERSON, THE ARRESTING LAW ENFORCEMENT AGENCY, PRIOR TO THE FILING OF AN ACCUSATORY INSTRUMENT IN COURT, ELECTS NOT TO PROCEED FURTHER; (B) PRIOR TO THE FILING OF A PETITION, THE PRESENTMENT AGENCY ELECTS NOT TO COMMENCE A DELINQUENCY ACTION; (C) PRIOR TO THE FILING OF A PETITION, THE PROBATION DEPARTMENT HAS ADJUSTED THE CASE OR TERMINATED THE CASE WITHOUT ADJUSTMENT; (D) TERMINATION OF THE DELINQUENCY ACTION IN FAVOR OF A RESPONDENT PURSUANT TO SECTION 375.1 OF THIS ARTICLE; OR (E) FOLLOWING A FINDING OF DELINQUENCY, SEALING OR EXPUNGEMENT IS ORDERED PURSUANT TO SECTION 375.1 OR 375.2 OF THIS ARTICLE. 3. LAW ENFORCEMENT OR OTHER PUBLIC OFFICIALS MAY NOT ACCESS OR DISCLOSE CONFIDENTIAL JUVENILE RECORDS WITHOUT A COURT ORDER FOLLOWING NOTICE AND A HEARING PURSUANT TO SUBDIVISION FOUR OF SECTION 306.1 OF THIS ARTICLE. 4. Notwithstanding the provisions of subdivision [one] THREE OF THIS SECTION, the family court in the county in which the petition was adju- dicated may, upon motion and for good cause shown, order such records open: (a) to the respondent or his OR HER parent or person responsible for his OR HER care; or (b) if the respondent is subsequently convicted of a crime, to a judge of the court in which he was convicted, unless such record has been [sealed] EXPUNGED pursuant to section 375.1 OR SECTION 375.2 OF THIS ARTICLE. [3.] 5. An order issued under subdivision [two] FOUR OF THIS SECTION must be in writing. 6. FOR THE PURPOSES OF THIS SECTION, "RECORDS" SHALL INCLUDE LAW ENFORCEMENT FILES, REPORTS, EXHIBITS OR OTHER MATERIAL WHICH CONTAINS INFORMATION RELATING TO CONTACT WITH ANY LAW ENFORCEMENT AGENCY AND ALSO INCLUDES ELECTRONIC INFORMATION RECORDED AND STORED STEMMING FROM AN ARREST OR SUBSEQUENT INTERROGATIONS AND INTERVIEWS, AND SHALL ALSO APPLY TO ANY INFORMATION THAT IS KEPT MANUALLY, THROUGH THE USE OF ELECTRONIC DATA PROCESSING EQUIPMENT, THROUGH ELECTRONIC RECORDING OR BY ANY OTHER MEANS BY A LAW ENFORCEMENT AGENCY OF THE STATE OF NEW YORK. 7. VIOLATION OF THIS SECTION SHALL CREATE A CAUSE OF ACTION FOR CIVIL DAMAGES UP TO ONE THOUSAND DOLLARS. § 7. This act shall take effect on the ninetieth day after it shall have become a law.
co-Sponsors
(D) 30th Senate District
(D) 34th Senate District
(D, WF) 40th Senate District
(D, WF) 47th Senate District
(D, WF) 31st Senate District
(D, WF) 21st Senate District
(D, WF) 33rd Senate District
(D, WF) 18th Senate District
(D, WF) 29th Senate District
2023-S3104A (ACTIVE) - Details
- See Assembly Version of this Bill:
- A6289
- Current Committee:
- Senate Judiciary
- Law Section:
- Family Court Act
- Laws Affected:
- Add §301.5, amd §§354.1, 375.1, 375.2, 381.2 & 381.3, Fam Ct Act
- Versions Introduced in 2021-2022 Legislative Session:
-
S9228
2023-S3104A (ACTIVE) - Sponsor Memo
BILL NUMBER: S3104A
SPONSOR: BRISPORT
TITLE OF BILL:
An act to amend the family court act, in relation to the confidentiality
and expungement of records in juvenile delinquency cases in the family
court
PURPOSE:
This bill makes several changes to the Family Court Act to clarify and
protect the record-related rights of children arrested as juvenile
delinquents or those arrested as juvenile offenders and adolescent
offenders whose cases are subsequently removed to family court.
Protecting children from collateral consequences related to juvenile
records is consistent with the rehabilitative purpose of the Family
Court Act. The bill requires confidentiality for all records created as
a result of juvenile arrests and family court cases. The bill further
defines which specific records would be considered juvenile delinquency
records and how such records should be maintained or expunged by the
court and other government entities.
SUMMARY OF PROVISIONS:
Section one amends the Family Court Act (FCA) by adding a new section,
301.5, to make clear that juvenile delinquency records shall be confi-
dential and shall not be released to any "person, department, agency, or
entity." The section defines "juvenile delinquency records" and enumer-
ates specific categories of records, such as: juvenile legal files, law
enforcement records, state criminal justice system records, and personal
social records. The section includes a mechanism for requesting access
to confidential records through notice and hearing. The section also
creates a civil cause of action for those aggrieved by a violation of
the outlined protections.
Section two amends FCA § 354.1(1) and (2) to account for recent legisla-
tive changes that raised the age of criminal prosecution ("Raise the
Age" law) and raised the minimum age of juvenile delinquency jurisdic-
tion ("Raise the Lower Age" law). The current statute governs the
retention and destruction of fingerprints and photographs of young
people arrested as delinquents or whose cases initiate as juvenile
offenders but are subsequently removed to family court pursuant to arti-
cle 735 or 722 of the criminal procedure law. The bill would extend
those provisions to cases that start as adolescent offenders but are
removed to family court. The bill also removes the age "eleven" from
both subsections (1) and (2).
Section two also adds subdivision (8) to FCA § 354.1. This section
requires the destruction of all fingerprints, palmprints, photographs,
and related information obtained pursuant to section 306.1 upon the
expungement of a juvenile delinquency adjudication pursuant to section
375.1 or 375.2.
Section two also adds subdivision (9) to FCA § 354.1. This amendment
prohibits retention of any juvenile DNA or other genetic material in any
database maintained by a government entity other than those used for
parentage, juvenile offender, or adolescent offender proceedings.
Section three amends FCA § 375.1 to require automatic expungement, not
merely sealing, for cases terminated in favor of the accused young
person, as well as for adjudications based upon the now-repealed mari-
juana and loitering for the purposes of prostitution crimes under former
sections 221.15, 221.20, 221.35, 221.40, 240.36, and 240.37 of the penal
law. This section also applies to individuals who were previously adju-
dicated delinquent for an act committed while under the age of twelve,
other than the acts enumerated in section 301.2. An agreement to forgo
the expungement may not be a condition of an adjournment in contem-
plation of dismissal. Section Three instructs those entities maintaining
records and those who are the subjects of juvenile records of the
effects of expungement. Recognizing that local probation departments
must check prior records of adjusted cases under Family Court Act §
308.1(4), local probation departments would be permitted to seal their
records from public view and access them solely for that purpose. The
proposal calls for automatic vacatur, dismissal, and expungement for
those previously adjudicated delinquent for acts that are no longer
considered crimes and automatic expungement for juvenile records of
respondents in whose favor delinquency proceedings were terminated prior
to the enactment of the bill.
Section four amends FCA § 375.2 to replace sealing with expungement,
clarify expungement by motion, and create automatic expungement for
juvenile delinquency adjudications. This section expands eligibility for
expungement to all delinquency adjudications, regardless of the offense.
It also amends the jurisdictional timing for filing a motion to expunge
from the age of eighteen to any time after the conclusion of the dispo-
sition. An agreement to forgo expungement may not be a condition of a
plea or admission to a reduced charge. This section adds explicit
factors that the court must weigh when deciding a motion for expunge-
ment, including, but not limited to, the best interest of the person,
nature of offense, and adverse consequences resulting from retention of
the record. Once a youth reaches the age of 21, all records relating to
a juvenile delinquency adjudication must automatically be expunged. The
section further requires all agencies involved in the adjudication of
the case, from arrest to disposition, to affirm to the court that all
paper and electronic copies of such records have been destroyed.
Section five amends FCA § 381.2 to replace sealing with expungement in
regard to the use of records in other courts.
Section six amends FCA § 381.3 to replace "police" with "law enforce-
ment" and defines law enforcement records. Subdivision 2 provides great-
er protection of juvenile delinquency records maintained by law enforce-
ment by requiring the destruction of records under specified
circumstances consistent with the provisions of sections 375.1 and
375.2. The section clarifies the prohibition against law enforcement's
use of its internal, confidential records without a court order pursuant
to the new § 306.1. The section creates a civil cause of action for
those aggrieved by violations of the outlined protections.
EXISTING LAW:
FCA Article 3 governs juvenile delinquency proceedings in New York
State. Article 3 provides for the automatic sealing of juvenile delin-
quency records whenever the case results in a termination that is favor-
able to the respondent, including cases that are dismissed or withdrawn.
See § 375.1. The automatic sealing of "favorable" records is purely
statutory and parallels similar criminal procedure law provisions. When
the respondent has been adjudicated delinquent, the court may, in its
discretion, order that the records be sealed after a motion has been
made. Such motion may not be made until after the respondent's eigh-
teenth birthday and so long as the adjudication was not for a designated
felony. See § 375.2. Last, the court may exercise its inherent power to
expunge a court record, though it arguably lacks the authority to order
the expungement of non-court files, including of law enforcement
records. See § 375.3. Discretionary sealing and expungement provisions
codify Court of Appeals case law; ergo, the court would possess the
power in the absence of a sealing statute.
If a record is not sealed or expunged, the relevant documents are
protected solely by the weak privacy provision found in FCA Section 166,
to wit, they "shall not be open to indiscriminate public inspection."
Section 166 applies indefinitely to cases which have yet to be dismissed
or withdrawn, even though many dispositions are "favorable" to the
respondent and will hence be ultimately sealed. The Section dates from
1922 and has not been significantly amended for close to a century.
FCA Article 3 also governs the retention of juvenile fingerprints,
photographs, and palmprints initially taken as a result of law enforce-
ment action. See § 306.1. This provision currently applies to only juve-
nile delinquencies and juvenile offender cases removed to family court.
Such fingerprints are forwarded to and maintained by the Division of
Criminal Justice Services (DCJS). If a case is disposed of in any manner
other than an adjudication of juvenile delinquency for a felony, all
fingerprints or information relating to the allegations obtained by DCJS
shall be destroyed upon notification by the terminating entity (family
court, department of probation, or presentment agency). See § 354.1. The
family court shall notify DJCS of felony adjudications of juvenile
delinquency, in which case the fingerprint profile will be maintained.
See § 354.1(1). If the young person has no criminal convictions or pend-
ing criminal actions, DCJS shall destroy all fingerprints upon their
21st birthday.
LEGISLATIVE HISTORY:
2021-22: 5.9228
JUSTIFICATION:
INTRODUCTION
Records are created the instant a child comes into contact with law
enforcement and the juvenile legal system. While records serve an impor-
tant and functional role in aiding the court during the pendency of a
case, this utility diminishes and is replaced with a prejudicial effect
over time. Despite misconceptions that existing state confidentiality
and sealing provisions provide adequate protections, young people face
continuing stigma and are excluded from housing, educational, employment
and other opportunities. See generally, J. Radice, "The Juvenile Record
Myth," 106 Geo. L.J. 365 (2018). In New York, juvenile arrest,
probation, prosecutorial, and court records follow youth into adulthood.
The collateral consequences of those juvenile records significantly
affect young people throughout their lives by impeding their ability to
achieve gainful employment, serve in the military, enroll in higher
education, obtain occupational licensing, or acquire citizenship. See,
e.g., U.S. Dept. of Justice Office of Juvenile Justice and Delinquency
Prevention, Expunging Juvenile Records: Misconceptions, Collateral
Consequences, and Emerging Practices (Dec. 2020); Juvenile Law Center,
Failed Policies, Forfeited Futures: Revisiting a Nationwide Scorecard on
Juvenile Records (July 2020); M. Sobie, "A Life Sentence for Children:
NY's Antiquated Prejudicial Juvenile Justice Record Provisions,"
N.Y.L.J. (Dec. 16, 2021).
It is well-settled that it would be "antithetical to the purpose of the
Family Court Act to maintain records which would not benefit society and
would result in bringing unwarranted discrimination to a child's
future." Dorothy D. v. New York City Prob. Dep't, 49 N.Y.2d 212, 215
(1980). The New York Court of Appeals clearly recognizes the myriad of
negative consequences that encumber youth for whom records are kept.
"That the very existence of (Family Court delinquency) records, despite
provisions for confidentiality, may constitute a substantial impediment
to entry into institutions of higher learning, government or private
employment, the armed services, or the professions, cannot be seriously
questioned." Id. at 213. The Court has repeatedly expressed that "(t)he
overriding intent of the juvenile delinquency article is to empower the
Family Court to intervene and positively impact the lives of troubled
young people" and "to extinguish the causes of juvenile delinquency
through rehabilitation" rather than to punish. Matter of Robert J. 2
N.Y.3d 339, 346 (2004); Matter of Quinton A., 49 N.Y.2d 328, 335 (1980).
See also Matter of Emily P., 63 Misc. 3d 755, 833-34 (N.Y. Fain. Ct.
2019). Notwithstanding the rehabilitative intention of the Family Court
Act, the current record -related provisions hann, rather than protect,
young people long after the conclusion of their cases.
In 2015, the American Bar Association issued the "Model Act Governing
the Confidentiality and Expungement of Juvenile Delinquency Records."
The "Model Act" calls for comprehensive protection of juvenile records
by prioritizing confidentiality and the automatic expungement of all
records generated by juvenile system involvement, expanding beyond just
court files. Many states follow the Model Act by prioritizing expunge-
ment and ensuring confidentiality for all juvenile records. See, e.g.,
West's Colorado Revised Statutes § 19-1306; Illinois Compiled Statutes §
405/5-915; Ohio Revised Code §§ 2151.355, 2151.356, 2151.358; Revised
Code of Washington § 13.50.050; Delaware Code §§ 1014-1018; North Caro-
lina General Statutes §§ 7B3200, 3201; Arizona Revised Statutes §
13-921; Arkansas Code §§ 927-309(b)(1)(A), (b)(2); West's California
Code, Div. 2, C. 2, Art. 22, § 826(a); Connecticut General Statutes §§
46b133a,46b-146; West's Florida Statutes § 943.0582; Minnesota Statutes
§ 260B.235(9); Pennsylvania Consolidated Statutes § 9123; West's Code of
Virginia § 16-1-306.
This proposal adopts many of the provisions set forth in the "Model Act"
and is consistent with state and national trends to protect criminal
records through "ban the box" and "clean slate" reforms. Too often,
young people affected by the juvenile delinquency system are excluded
from such movements and may have fewer legal protections than adults and
"Youthful Offenders" in criminal court. This outcome runs counter to the
purpose of Family Court and modern developmental science. Youth have the
capacity for change and research confirms a significant majority of
arrested children are never again charged with criminal activity, before
or after attaining majority. See S. Shah, "Future Interrupted: The
Collateral Damage Caused by Proliferation of Juvenile Records," Juvenile
Law Center (Feb. 2016). As such, legislatures should consider measures
that "equalize the wide disparity between the Family Courts and the
criminal courts." M. Sobie, "A Life Sentence for Children: NY's Anti-
quated Prejudicial Juvenile Justice Record Provisions," supra. This
proposal aims to extend to New York's young people measures to alleviate
the collateral consequences and lifelong stigma resulting from system
involvement.
CONFIDENTIALITY
Expungement, sealing, and confidentiality are three legally distinct
record protections. Expungement requires permanent destruction of
records, sealing requires courts to make records available to specific
agencies but unavailable to the public, and confidentiality prevents
dissemination, access, or use of records.
This proposal incorporates a new confidentiality section, proposed Fami-
ly Court Act § 301.6, to address the significant weaknesses in current
law. See Schwawl v. Grant (2 Dept. 2008) 47 A.D.3d 698. In the absence
of sealing, FCA § 166 is the only provision governing access to juvenile
delinquency records. However, it does not ensure the confidentiality of
those records. Indeed, as explained in the Practice Commentary of
McKinney's Family Court Act:
"A common assumption is that Family Court records are confidential. For
better or for worse, that assumption is erroneous. The vague incomplete
confidentiality provision of Section 166, which dates from the Family
Court Act's predecessor code, the 1922 Children's Court Act, stops well
short of full confidentiality. Using the phrase 'shall not be open to
indiscriminate public inspection,' the section suggests that public
discriminate or discriminating inspection is permitted... Perhaps more
surprisingly, the section addresses "public" inspection, but is silent
concerning non-public access, although records are often sought by
employers, the government, or the respondent herself."
Prof. Merril Sobie, Practice Commentary, McKinney's Family Ct. Act §
166. Section 166 leaves the door open to the dissemination of juvenile
records by prosecution and police personnel, regardless of the case's
ultimate outcome. Ironically, the records of Youthful Offenders who are
prosecuted in the criminal courts are afforded a greater degree of
confidentiality. See Criminal Procedure Law Section 720.35.
Presently, young adults with juvenile records are unable to move about
the world freely, without fear of their records being shared. Confiden-
tiality should be a baseline protection for all juvenile delinquency
records. Section One of this proposal accomplishes that. Unlike the
current iteration of Family Court privacy provisions, "confidentiality"
is explicit in § 301.6. The proposal mirrors the ABA "Model Act" Section
IV(a), outlining the specific records that fall under the confidentiali-
ty umbrella, and requires that records "shall not be open to inspection
nor released to any person, department, agency, or entity."
With the understanding that records are useful for certain court or
government purposes, this proposal includes a mechanism for requesting
access to confidential information through notice and hearing. This
creates transparency regarding who is requesting access to what records
and curtails surreptitious sharing of information by agencies to both
internal and external parties. Finally, this proposal creates a civil
cause of action for the violation of confidentiality requirements. Sanc-
tions are necessary for enforcement, accountability and to redress
potential harm. As of 2020, 34 states impose either civil or criminal
sanctions for individual or agency failure to comply with confidentiali-
ty protections. Juvenile Law Center, Failed Policies, Forfeited Futures:
Revisiting a Nationwide Scorecard on Juvenile Records, supra.
DNA OR OTHER GENETIC MATERIAL
Law enforcement officers often obtain DNA samples by consent or surrep-
titiously, by offering arrested juveniles bottles of water, bubble gum,
or cigarettes for inclusion in a local DNA index indefinitely. This
practice has drawn significant concern from local and state legislators,
community groups and citizens throughout the state. This proposal
addresses the issue by prohibiting the retention of any juvenile DNA or
other genetic material in any database maintained by a government enti-
ty, other than those used for parentage, juvenile offender or adolescent
offender proceedings.
EXPUNGEMENT
Expungement is the only adequate and complete remedy to protect against
the lasting consequences and future stigma of a juvenile record. In the
twenty-first century, juvenile records are electronically stored, cata-
logued, and widely available.
While sealed records cannot ordinarily be obtained or reviewed, the
relevant records are nonetheless maintained. System-involved agencies,
such as prosecutorial offices and law enforcement entities, learn of
sealed arrests through instantaneous searches within their databases.
While these cases are labelled as "sealed" and individual public serv-
ants may not gain specific information about the facts of a case, the
knowledge of a preexisting history is enough for subconscious bias to
affect the myriad discretionary decisions made throughout the life of a
case. These records exist even for proceedings or actions that were
dismissed, declined, voided, and found to have no merit. As a result,
individuals with dismissed cases suffer equivalent consequences to those
with adjudications.
For example, a young adult with a case dismissed on the merits may be
denied a job in the public sector. Although the case would be sealed,
pursuant to the current FCA § 375.1, the case would likely appear on a
public agency's internal database. If the arrest and delinquency action
were expunged, no history of such record would exist, eliminating the
potential consequence and bias.
Access to juvenile records also contributes to cyclical system involve-
ment. Law enforcement agencies maintain identification information in
several internal databases, made accessible to officers when patrolling,
investigating, and making subsequent arrests. These databases include
juvenile arrests, regardless of how an arrest was resolved. Readily
available juvenile arrest information contributes to the long-term
policing of communities of color, who already face over-surveillance and
escalated police presence in schools and neighborhoods.
Expungement is also necessary to reduce social stigma and ensure records
are not available to future employers, schools, associates, law enforce-
ment, etc. This proposal clarifies the legal effect of expungement,
enabling the person who is subject of the record to treat the arrest or
case as if it never occurred, and ensuring that they are not penalized
for failing to acknowledge such record. Relieving affected individuals
from any obligation to identify a past, expunged case, truly removes the
burden of collateral consequences attached to such a case. Today, many
young people over-disclose their sealed or expunged juvenile delinquency
arrests or adjudications out of fear that an employer, law enforcement
agency, or immigration official might have knowledge of the record. The
proposed amendment allows counsel to explicitly advise their young
clients that if or when their record is expunged, they will never have
to disclose it.
Procedures for young people to petition to seal or expunge their juve-
nile records are historically cumbersome. Attorneys can assist young
people and adults with filing sealing and expungement motions; however,
the affected person must first know that their record is eligible for
relief. Current sealing and expungement statutes are confusing and
complicated. Often attorneys and their young clients lose connection
over years of separation and changes in circumstances that can occur
from adolescence to adulthood. As a result, Section 375.2 sealing
motions are rare and Section 375.3 expungement motions are virtually
non-existent. The burden of sealing and expungement should not fall on a
young person. Recent national legislative trends and the "Model Act"
make it easier for young people by providing for automatic destruction
without action on the part of the youth. See Anne Teigen, "Automatically
Sealing or Expunging Juvenile Records," 24 LegisBrief 27 (Nat'l Conf. of
St. Legislatures, Washington D.C.) (July 2016).
Consequently, expungement must be the minimum level of protection for
those whose delinquency action terminated in their favor. This proposal
requires automatic expungement, not merely sealing, of records for cases
terminated favorably to the accused, as well as adjudications of indi-
viduals based on the now-repealed marijuana and loitering for purposes
of prostitution charges. In addition, the proposal adds voided arrests
to the list of cases that are considered favorably terminated, in line
with CPL 160.50(3)(j).
Notwithstanding the clear benefits of automatic expungement, the
proposal maintains the mechanism of expungement by motion. However, the
proposal adds statutory factors for consideration by the court, modelled
after those put forth by the "Model Act." Rather than relying on overly
punitive factors or allowing for total discretion, this proposal
provides a more holistic approach-balancing the best interest of the
person, their rehabilitation, the nature of the offense, and adverse
consequences of retention of a record. Further, it was important for
this proposal to include enumerated factors to better unify courts'
decision-making. While there has been movement by some judges toward
consideration of more holistic factors, see Matter of Emily P., 63
Misc.3d 755 (Fam. Ct., N.Y. Co., 2019), some jurisdictions still main-
tain antiquated precedent for expungement, such as a need for "complete
innocence." Curtailing this wide ranging and varied analysis will not
only make it more efficient for practitioners but will better align the
relief with the rehabilitative intent of the Family Court Act.
The expungement by motion provision of this proposal will provide an
avenue of relief for all young people, regardless of age or offense,
including designated felonies. This approach is consistent with FCA §
375.3, as well as data and research which demonstrate the enormous
potential of young people for rehabilitation. Accordingly, no youth
should be automatically foreclosed from the complete relief of expunge-
ment. Additionally, the proposal amends the time when a respondent may
request expungement. This relief should be available to young people, in
appropriate circumstances, before automatic expungement is triggered on
their 21st birthday.
Finally, like all of the expungement provisions outlined in this
proposal, expungement by motion requires the destruction of all juvenile
delinquency records, not just the family court's own files.
PROTECTION FOR THE ENTIRE JUVENILE FILE
Currently, even if a young person obtains court-ordered expungement
through FCA § 375.3, an expungement order does not provide complete
relief. The practical application of an expungement results in the
destruction of court records only, leaving in place all other agency
records created through the life of a case (from arrest to disposition).
This proposal closes that loophole. To ensure that each child has an
opportunity for a productive future, and for rehabilitation to be effec-
tive, juvenile system involvement records should be eradicated so chil-
dren can start from a clean slate upon reaching adulthood. See "Model
Act"; Juvenile Law Center, Failed Policies, Forfeited Futures: Revisit-
ing a Nationwide Scorecard on Juvenile Records, supra.
Some system-involved youth express interest in serving their communities
as law enforcement officers or by enlisting in the military someday.
However, law enforcement agencies continue to utilize their internal
records of juvenile arrests to prejudice individuals both in the inves-
tigatory context and when individuals apply for employment with a law
enforcement agency. See R.C. v. City of New York, 2019 N.Y. Slip Op.
32624 (N.Y. Sup. Ct. 2019) (Ongoing case in New York City whereby the
plaintiffs seek redress from the NYPD policy and practice allowing the
use of information from records of arrest to target predominately Black
and Latinx people for investigation, arrest, and harsher penalties.)
This proposal calls for two remedies to address this issue. First, it
requires confidentiality of all juvenile records, protecting against
internal access to records without due process. Second, it provides for
the destruction of law enforcement records at various points in a case.
This new provision will trigger destruction of all law enforcement
records relating to an arrest when other records are required to be
destroyed, such as when a matter is terminated in favor of the youth.
FISCAL IMPLICATIONS:
To be determined.
EFFECTIVE DATE:
This act shall take effect on the ninetieth day after it shall have
become a law.
2023-S3104A (ACTIVE) - Bill Text download pdf
S T A T E O F N E W Y O R K
________________________________________________________________________
3104--A
2023-2024 Regular Sessions
I N S E N A T E
January 27, 2023
___________
Introduced by Sen. BRISPORT -- read twice and ordered printed, and when
printed to be committed to the Committee on Children and Families --
reported favorably from said committee and committed to the Committee
on Judiciary -- committee discharged, bill amended, ordered reprinted
as amended and recommitted to said committee
AN ACT to amend the family court act, in relation to the confidentiality
and expungement of records in juvenile delinquency cases in the family
court
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The family court act is amended by adding a new section
301.5 to read as follows:
§ 301.5. CONFIDENTIALITY OF JUVENILE DELINQUENCY RECORDS. 1. "JUVENILE
DELINQUENCY RECORD" REFERS TO THE RECORDS, REPORTS AND INFORMATION MAIN-
TAINED IN ANY FORM, INCLUDING ELECTRONIC, BY THE FAMILY COURT, JUVENILE
PROBATION, THE PRESENTMENT AGENCY, STATE CRIMINAL JUSTICE INFORMATION
SYSTEMS, LAW ENFORCEMENT AGENCIES OR ANY OTHER PUBLIC SERVANT DOCUMENT-
ING THE JUVENILE'S CONTACT WITH THE JUVENILE JUSTICE SYSTEM FROM THE
TIME OF INVESTIGATION AND ARREST.
2. THE FOLLOWING RECORDS, REPORTS, AND INFORMATION ACQUIRED OR GENER-
ATED IN FAMILY COURT, JUVENILE PROBATION OR BY ARRESTS CONCERNING JUVE-
NILES SHALL BE CONFIDENTIAL AND SHALL NOT BE OPEN TO INSPECTION NOR
RELEASED TO ANY PERSON, DEPARTMENT, AGENCY, OR ENTITY:
(A) JUVENILE LEGAL FILES, INCLUDING BUT NOT LIMITED TO:
(I) JUVENILE DELINQUENCY PETITIONS;
(II) ADOLESCENT OFFENDER PETITIONS IF THE ACTION IS TRANSFERRED OR
REMOVED TO FAMILY COURT PURSUANT TO ARTICLE SEVEN HUNDRED TWENTY-TWO OF
THE CRIMINAL PROCEDURE LAW;
(III) JUVENILE OFFENDER PETITIONS IF THE ACTION IS REMOVED TO FAMILY
COURT PURSUANT TO ARTICLE SEVEN HUNDRED TWENTY-FIVE OF THE CRIMINAL
PROCEDURE LAW;
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD05815-05-3
S. 3104--A 2 (IV) PREDISPOSITION REPORTS, INCLUDING PROBATION INVESTIGATIONS AND DIAGNOSTIC ASSESSMENTS; (V) RISK ASSESSMENT INSTRUMENTS; (VI) NOTICES; (VII) MOTIONS; (VIII) LEGAL MEMORANDA; AND (IX) ORDERS. (B) LAW ENFORCEMENT RECORDS, INCLUDING BUT NOT LIMITED TO: (I) FINGERPRINTS, PHOTOGRAPHS, PALMPRINTS; (II) DNA SAMPLES; (III) ARREST RECORDS; (IV) DEMOGRAPHIC INFORMATION THAT IDENTIFIES A JUVENILE OR THE FAMILY OF A JUVENILE; AND (V) STATE CRIMINAL JUSTICE INFORMATION SYSTEM RECORDS. (C) PERSONAL SOCIAL RECORDS, INCLUDING BUT NOT LIMITED TO: (I) RECORDS OF JUVENILE PROBATION OFFICERS; (II) MEDICAL RECORDS; (III) PSYCHIATRIC OR PSYCHOLOGICAL RECORDS; (IV) REPORTS OF PRELIMINARY INQUIRIES AND PREDISPOSITION REPORTS; (V) SUPERVISION RECORDS; (VI) BIRTH CERTIFICATES; (VII) INDIVIDUALIZED SERVICE PLANS; (VIII) DETENTION RECORDS; AND (IX) DEMOGRAPHIC INFORMATION THAT IDENTIFIES A JUVENILE OR THE FAMILY OF A JUVENILE. 3. UPON A WRITTEN PETITION AND A FINDING OF COMPELLING INTEREST, AND IN ACCORDANCE WITH THE CONDITIONS BELOW, THE JUVENILE COURT MAY ORDER RELEASE OF THE JUVENILE NAME AND DESIGNATED PORTIONS OF THE RECORDS, REPORTS, AND INFORMATION DESCRIBED IN PARAGRAPHS (A) THROUGH (C) OF SUBDIVISION TWO OF THIS SECTION TO ANOTHER PERSON, DEPARTMENT, ENTITY, OR AGENCY. (A) THE REQUESTING PARTY SHALL PROVIDE NOTICE TO THE JUVENILE AND HIS OR HER ATTORNEY OF THE PETITION AND AN OPPORTUNITY TO OBJECT. (B) THE COURT SHALL HOLD A HEARING ON THE PETITION IF REQUESTED BY THE PETITIONER OR JUVENILE. (C) THE PETITION FILED WITH THE COURT AND SERVED ON THE JUVENILE AND HIS OR HER ATTORNEY SHALL STATE THE FOLLOWING: (I) THE REASON THE PERSON, DEPARTMENT, ENTITY, OR AGENCY IS REQUESTING THE INFORMATION; (II) THE USE TO BE MADE OF THE INFORMATION, INCLUDING ANY INTENDED RE-DISCLOSURE; AND (III) THE NAMES OF THOSE PERSONS WITHIN THE DEPARTMENT, ENTITY, OR AGENCY WHO WILL HAVE ACCESS TO THE INFORMATION. (D) IN RULING ON THE PETITION, THE COURT SHALL CONSIDER THE PRIVACY INTERESTS OF THE JUVENILE AND POTENTIAL RISK OF HARM TO THE JUVENILE, WHETHER A COMPELLING REASON EXISTS FOR RELEASE OF THE INFORMATION, AND WHETHER THE RELEASE IS NECESSARY FOR THE PROTECTION OF AN IMPORTANT INTEREST. (E) THE COURT MAY IMPOSE RESTRICTIONS ON THE USE AND RE-DISCLOSURE OF THE RELEASED INFORMATION. 4. AN OFFICER OF THE COURT WITH WHOM THE PROCEEDINGS PURSUANT TO THIS ARTICLE ARE FILED, OR HIS OR HER CLERK, EITHER BEFORE OR AFTER THE CONCLUSION OF SUCH PROCEEDINGS, SHALL NOT PERMIT A COPY OF ANY OF THE DOCUMENTS RELATING TO SUCH PROCEEDINGS TO BE TAKEN OR SEEN BY ANY PERSON OTHER THAN THE RESPONDENT, THE ATTORNEY FOR THE CHILD, AN ATTORNEY S. 3104--A 3 EMPLOYED BY THE PRESENTMENT AGENCY, OR AN OFFICIAL EMPLOYED BY THE PROBATION SERVICE, EXCEPT BY ORDER OF THE COURT. 5. NOTWITHSTANDING THE PROVISIONS OF SUBDIVISION THREE OF THIS SECTION, AN OFFICER OF THE COURT, OR HIS OR HER CLERK, SHALL NOT PERMIT ACCESS OF ANY PERSON TO A RECORD WHICH HAS BEEN EXPUNGED PURSUANT TO SECTION 375.1 OR SECTION 375.2 OF THIS ARTICLE. 6. A VIOLATION OF THIS SECTION SHALL CREATE A CAUSE OF ACTION FOR CIVIL DAMAGES OF UP TO ONE THOUSAND DOLLARS. § 2. The section heading and subdivisions 1 and 2 of section 354.1 of the family court act, the section heading as added by chapter 920 of the laws of 1982 and subdivisions 1 and 2 as amended by chapter 810 of the laws of 2021, are amended and two new subdivisions 8 and 9 are added to read as follows: Retention and destruction of fingerprints; DNA AND OTHER GENETIC MATE- RIAL of persons alleged to be juvenile delinquents. 1. If a person whose fingerprints, palmprints or photographs were taken pursuant to section 306.1 OF THIS ARTICLE or WHO was initially fingerprinted as a juvenile OR ADOLESCENT offender and the action is subsequently removed to a family court pursuant to article seven hundred twenty-five OR ARTI- CLE SEVEN HUNDRED TWENTY-TWO of the criminal procedure law is adjudi- cated to be a juvenile delinquent for a felony, the family court shall forward or cause to be forwarded to the division of criminal justice services notification of such adjudication and such related information as may be required by such division, provided, however, in the case of a person twelve years of age such notification shall be provided only if the act upon which the adjudication is based would constitute a class A or B felony. 2. If a person whose fingerprints, palmprints or photographs were taken pursuant to section 306.1 OF THIS ARTICLE or WHO was initially fingerprinted as a juvenile OR ADOLESCENT offender and the action is subsequently removed to family court pursuant to article seven hundred twenty-five OR ARTICLE SEVEN HUNDRED TWENTY-TWO of the criminal proce- dure law has had all petitions disposed of by the family court in any manner other than an adjudication of juvenile delinquency for a felony, but in the case of acts committed when such person was twelve years of age [which would constitute] OTHER THAN AN ADJUDICATION OF JUVENILE DELINQUENCY FOR a class A or B felony [only], all such fingerprints, palmprints, photographs, and copies thereof, and all information relat- ing to such allegations obtained by the division of criminal justice services pursuant to section 306.1 OF THIS ARTICLE shall be destroyed forthwith. The clerk of the court shall notify the commissioner of the division of criminal justice services and the heads of all police departments and law enforcement agencies having copies of such records, who shall destroy such records without unnecessary delay. 8. WHEN A PERSON WHOSE FINGERPRINTS, PALMPRINTS OR PHOTOGRAPHS WERE TAKEN PURSUANT TO SECTION 306.1 OF THIS ARTICLE AND WHO IS SUBSEQUENTLY ADJUDICATED A JUVENILE DELINQUENT FOR A FELONY, BUT IN THE CASE OF ACTS COMMITTED WHEN SUCH PERSON WAS TWELVE YEARS OF AGE OTHER THAN AN ADJUDI- CATION OF JUVENILE DELINQUENCY FOR A CLASS A OR B FELONY, AND THE CASE IS EXPUNGED PURSUANT TO SECTION 375.1 OR SECTION 375.2 OF THIS ARTICLE, ALL FINGERPRINTS, PALMPRINTS, PHOTOGRAPHS, AND RELATED INFORMATION AND COPIES THEREOF OBTAINED PURSUANT TO SECTION 306.1 OF THIS ARTICLE IN THE POSSESSION OF THE DIVISION OF CRIMINAL JUSTICE SERVICES, ANY POLICE DEPARTMENT, LAW ENFORCEMENT AGENCY OR ANY OTHER AGENCY SHALL BE DESTROYED FORTHWITH. THE DIVISION OF CRIMINAL JUSTICE SERVICES SHALL NOTIFY THE AGENCY OR AGENCIES WHICH FORWARDED FINGERPRINTS TO SUCH DIVI- S. 3104--A 4 SION PURSUANT TO SECTION 306.1 OF THIS ARTICLE OF THEIR OBLIGATION TO DESTROY THOSE RECORDS IN THEIR POSSESSION. 9. IF ANY DNA OR OTHER GENETIC MATERIAL WAS OBTAINED FROM A JUVENILE BY ANY LAW ENFORCEMENT OFFICER OR OTHER PUBLIC SERVANT ACTING IN THE COURSE OF HIS OR HER OFFICIAL DUTIES OR BY A STATE OR LOCAL GOVERNMENT ENTITY, OTHER THAN DNA OR OTHER GENETIC MATERIAL OBTAINED IN CONNECTION WITH A PARENTAGE OR RELATED PROCEEDING OR A JUVENILE OFFENDER OR ADOLES- CENT OFFENDER PROCEEDING NOT REMOVED TO THE FAMILY COURT, SUCH MATERIAL AND ANY ANALYSES OR REPORTS REGARDING SUCH MATERIAL, AS WELL AS ANY RECORD INCLUDED IN ANY DNA IDENTIFICATION INDEX MAINTAINED BY ANY GOVERNMENT ENTITY, SHALL BE EXPUNGED FORTHWITH. ANY DNA OR OTHER GENETIC MATERIAL OBTAINED IN CONNECTION WITH A PARENTAGE PROCEEDING RELATED THERETO OR ANY JUVENILE OFFENDER OR ADOLESCENT OFFENDER PROCEEDING MAY BE USED ONLY IN CONNECTION WITH SUCH PROCEEDING AND MAY NOT BE DISCLOSED TO OR UTILIZED BY ANY LAW ENFORCEMENT AGENCY OR ADMITTED INTO EVIDENCE IN ANY PROCEEDING UNDER THIS ARTICLE. § 3. Section 375.1 of the family court act, as added by chapter 920 of the laws of 1982, subdivision 1 as amended by chapter 41 of the laws of 2010, paragraphs (d), (f) and (h) of subdivision 2 and subdivision 3 as amended and paragraph (i) of subdivision 2 as added by chapter 398 of the laws of 1983, is amended to read as follows: § 375.1. Order upon termination of a delinquency action in favor of the respondent. 1. Upon termination of a delinquency proceeding against a respondent in favor of such respondent, unless the presentment agency upon written motion with not less than eight days notice to such respondent demonstrates to the satisfaction of the court that the inter- ests of justice require otherwise or the court on its own motion with not less than eight days notice to such respondent determines that the interest of justice require otherwise and states the reason for such determination on the record, the clerk of the court shall immediately notify the counsel for the child, the director of the appropriate presentment agency, and the heads of the appropriate probation depart- ment and police department or other law enforcement agency, that the proceeding has terminated in favor of the respondent and, unless the court has directed otherwise, that the records of such action or proceeding, other than those destroyed pursuant to section 354.1 of this act, shall be [sealed] EXPUNGED. Upon receipt of such notification all official records and papers, including judgments and orders of the court, but not including public court decisions or opinions or records and briefs on appeal, relating to the arrest, the prosecution and the probation service proceedings, including all duplicates or copies there- of, on file with the court, police agency, probation service and presentment agency shall be [sealed] EXPUNGED, and not made available to any person or public or private agency; PROVIDED, HOWEVER, THAT THE PROBATION SERVICE MAY RETAIN A COPY OF THE RECORD UNDER SEAL SOLELY IN ORDER TO COMPLY WITH SUBDIVISION FOUR OF SECTION 308.1 OF THIS ARTICLE UNTIL THE RESPONDENT'S EIGHTEENTH BIRTHDAY OR THE CONCLUSION OF THEIR PROBATION SUPERVISION, AT WHICH TIME ALL RECORDS SHALL BE EXPUNGED. Such records shall remain sealed during the pendency of any motion made pursuant to this subdivision. 2. THE EFFECT OF HAVING A RECORD EXPUNGED, WHETHER PURSUANT TO SUBDI- VISION ONE OF THIS SECTION OR PURSUANT TO SECTION 375.2 OF THIS PART, SHALL BE THAT ALL JUVENILE RECORDS SHALL BE DESTROYED AND THEREAFTER NO PERSON OR AGENCY SHALL BE ALLOWED TO RELEASE ANY INFORMATION CONCERNING SUCH RECORD, EXCEPT AS PROVIDED BY THIS SECTION. THE COURT, JUVENILE PROBATION OFFICE, LAW ENFORCEMENT OFFICES, PRESENTMENT AGENCY AND ANY S. 3104--A 5 OTHER RELEVANT AGENCY SHALL REPLY TO AN INQUIRY THAT NO JUVENILE RECORD EXISTS WITH RESPECT TO THE PERSON WHOSE RECORD WAS EXPUNGED. 3. WITH RESPECT TO THE MATTER IN WHICH THE RECORD WAS EXPUNGED AND ANY PRECEDING ACTION RESULTING FROM THE SAME ALLEGED CONDUCT, THE PERSON WHO IS THE SUBJECT OF THE RECORD AND THE PERSON'S PARENT SHALL NOT BE HELD THEREAFTER UNDER ANY PROVISION OF LAW TO BE GUILTY OF PERJURY OR OTHER- WISE GIVING A FALSE STATEMENT BY REASON OF THE PERSON'S FAILURE TO RECITE OR ACKNOWLEDGE SUCH RECORD. 4. For the purposes of subdivision one OF THIS SECTION, a delinquency proceeding shall be considered terminated in favor of a respondent where: (a) the petition is withdrawn; or (b) the petition is dismissed under section 315.1 or 315.2 OF THIS ARTICLE and the presentment agency has not appealed from such order or the determination of an appeal or appeals from such order has been against the presentment agency; or (c) the petition has been deemed to have been dismissed under section 315.3 and the presentment agency has not appealed from such order or the determination of an appeal or appeals from such order has been against the presentment agency; PROVIDED, HOWEVER, THAT AN AGREEMENT TO PREVENT EXPUNGEMENT UNDER THIS SECTION MAY NOT BE REQUIRED AS A CONDITION OF AN ADJOURNMENT IN CONTEMPLATION OF DISMISSAL UNDER SECTION 315.3 OF THIS ARTICLE; or (d) the petition is dismissed without prejudice under subdivision four of section 325.3 OF THIS ARTICLE and the presentment agency has not appealed from such order or the determination of an appeal or appeals from such order has been against the presentment agency; or (e) the entire petition has been dismissed under subdivision two of section 345.1 OF THIS ARTICLE; or (f) the petition is dismissed under subdivision two of section 352.1 OF THIS PART; or (g) prior to the filing of a petition, the probation department has adjusted the case or terminated the case without adjustment; or (h) prior to the filing of a petition the presentment agency chooses not to proceed to petition; or (i) the petition is dismissed pursuant to a motion made in accordance with subdivision eight, nine or ten of section 332.1 OF THIS ARTICLE; OR (J) FOLLOWING AN ARREST, THE ARRESTING POLICE AGENCY, PRIOR TO THE FILING OF AN ACCUSATORY INSTRUMENT IN COURT, ELECTS NOT TO PROCEED FURTHER; OR (K) THE RESPONDENT WAS ADJUDICATED FOR AN ACT THAT IF COMMITTED BY AN ADULT WOULD CONSTITUTE A CRIME UNDER FORMER SECTIONS 221.15, 221.20, 221.35, 221.40 OR 240.37 OR SECTION 240.36 OF THE PENAL LAW; OR (L) THE RESPONDENT WAS ADJUDICATED FOR AN ACT THAT WAS COMMITTED WHEN THE RESPONDENT WAS UNDER THE AGE OF TWELVE, OTHER THAN THE ACTS ENUMER- ATED IN SUBPARAGRAPH (III) OF PARAGRAPH (A) OF SUBDIVISION ONE OF SECTION 301.2 OF THIS ARTICLE. 5. WHEN A PERSON WAS PREVIOUSLY ADJUDICATED DELINQUENT AS DESCRIBED IN PARAGRAPH (K) OR (L) OF SUBDIVISION FOUR OF THIS SECTION, THE CHIEF ADMINISTRATIVE JUDGE OF THE STATE OF NEW YORK SHALL, IN ACCORDANCE WITH THIS SECTION, AUTOMATICALLY VACATE, DISMISS, AND EXPUNGE SUCH ADJUDI- CATION, AND THE OFFICE OF COURT ADMINISTRATION SHALL IMMEDIATELY NOTIFY THE STATE DIVISION OF CRIMINAL JUSTICE SERVICES, DIRECTING THAT SUCH AGENCY NOTIFY ALL RELEVANT POLICE AND LAW ENFORCEMENT AGENCIES OF THEIR DUTY TO DESTROY ALL RECORDS RELATED TO SUCH CASE. S. 3104--A 6 [3.] 6. Records sealed pursuant to subdivision one shall be made available to the respondent or his designated agent and the records and papers of a probation service shall be available to any probation service for the purpose of complying with subdivision four of section 308.1 OF THIS ARTICLE. [4.] 7. If prior to the filing of a petition the presentment agency elects not to commence a delinquency action it shall serve a certif- ication of such disposition upon the appropriate probation service and the appropriate police department or law enforcement agency, which, upon receipt [thereto] THEREOF, shall comply with the provision of subdivi- sion one OF THIS SECTION in the same manner as is required with respect to an order of the court. [5.] 8. If the probation service adjusts a delinquency case it shall serve a certification of such disposition upon the appropriate police department or law enforcement agency which, upon receipt thereof, shall comply with the provisions of subdivision one OF THIS SECTION in the same manner as is required thereunder with respect to an order of a court. [6.] 9. A respondent in whose favor a delinquency proceeding was terminated prior to the effective date of this section may upon motion apply to the court, upon not less than twenty days notice to the presentment agency, for an order granting him the relief set forth in subdivision one, and such order shall be granted unless the presentment agency demonstrates to the satisfaction of the court that the interests of justice require otherwise. A respondent in whose favor a delinquency action or proceeding was terminated as defined by subdivisions four and five, prior to the effective date of this section, may apply to the appropriate presentment agency or probation service for a certification as described in such subdivisions granting him the relief set forth therein and such certification shall be granted by such presentment agency or probation service. 10. THE CHIEF ADMINISTRATIVE JUDGE OF THE STATE OF NEW YORK SHALL, IN ACCORDANCE WITH THIS SECTION, AUTOMATICALLY EXPUNGE THE JUVENILE RECORD OF A RESPONDENT IN WHOSE FAVOR A DELINQUENCY PROCEEDING WAS TERMINATED PRIOR TO THE EFFECTIVE DATE OF THIS SUBDIVISION, AND THE OFFICE OF COURT ADMINISTRATION SHALL IMMEDIATELY NOTIFY THE STATE DIVISION OF CRIMINAL JUSTICE SERVICES, DIRECTING THAT SUCH AGENCY NOTIFY ALL RELEVANT POLICE AND LAW ENFORCEMENT AGENCIES OF THEIR DUTY TO DESTROY ALL RECORDS RELATED TO SUCH CASE. § 4. Section 375.2 of the family court act, as added by chapter 920 of the laws of 1982, subdivision 6 as amended by section 77 of part WWW of chapter 59 of the laws of 2017, and subdivision 7 as added by chapter 813 of the laws of 2021, is amended to read as follows: § 375.2. Motion to [seal] EXPUNGE AND AUTOMATIC EXPUNGEMENT after a finding. 1. If an action has resulted in a finding of delinquency pursu- ant to subdivision one of section 352.1 OF THIS ARTICLE, [other than a finding that the respondent committed a designated felony act,] the court may, in the interest of justice and upon motion of the respondent, order the [sealing] EXPUNGEMENT of appropriate records pursuant to subdivision one of section 375.1 OF THIS PART. 2. Such motion must be in writing and may be filed at any time subse- quent to the [entering of such finding] CONCLUSION OF THE PERIOD OF ANY DISPOSITION, INCLUDING, BUT NOT LIMITED TO, THE EXPIRATION OF THE PERIOD OF PLACEMENT, CONDITIONAL DISCHARGE, ORDER OF PROTECTION, ORDER OF RESTITUTION, ORDER OF PROBATION OR ANY EXTENSION THEREOF. Notice of such motion shall be served upon the presentment agency not less than eight S. 3104--A 7 days prior to the return date of the motion. Answering affidavits shall be served at least two days before such time. THE COURT SHALL RULE ON THE EXPUNGEMENT AFTER CONSIDERING THE FOLLOWING: (A) THE BEST INTERESTS OF THE PERSON; (B) THE AGE OF THE PERSON DURING HIS OR HER CONTACT WITH THE FAMILY COURT OR LAW ENFORCEMENT AGENCY; (C) THE NATURE OF THE OFFENSE; (D) THE DISPOSITION OF THE CASE; (E) THE MANNER IN WHICH THE PERSON PARTICIPATED IN ANY COURT ORDERED REHABILITATIVE PROGRAMMING OR SUPERVISED SERVICES; (F) THE TIME DURING WHICH THE PERSON HAS BEEN WITHOUT CONTACT WITH THE JUVENILE COURT; (G) WHETHER THE PERSON HAS ANY SUBSEQUENT CRIMINAL CONVICTIONS; AND (H) THE ADVERSE CONSEQUENCES THE PERSON WILL SUFFER AS A RESULT OF RETENTION OF HIS OR HER RECORD. 3. The court shall state on the record its reasons for granting or denying the motion. 4. [If such motion is denied, it may not be renewed for a period of one year, unless the order of denial permits renewal at an earlier time. 5.] The court shall not order the [sealing] EXPUNGEMENT of any record except as prescribed by this section or section 375.1 OF THIS PART. [6. Such a motion cannot be filed until the respondent's sixteenth birthday, or, commencing October first, two thousand eighteen, the respondent's seventeenth birthday, or commencing October first, two thousand nineteen, the respondent's eighteenth birthday. 7.] 5. Where an order of fact-finding has been issued pursuant to subdivision one of section 345.1 of this article that includes solely a violation as defined in subdivision three of section 10.00 of the penal law committed by a juvenile sixteen years of age or, commencing on Octo- ber first, two thousand nineteen, seventeen years of age, the records shall be [sealed] EXPUNGED automatically at the expiration, as applica- ble, of a successful period of an adjustment, adjournment in contem- plation of dismissal or conditional discharge. 6. IF AN ACTION HAS RESULTED IN A FINDING OF DELINQUENCY PURSUANT TO SUBDIVISION ONE OF SECTION 352.1 OF THIS ARTICLE, ALL RECORDS OF SUCH ACTION OR PROCEEDING NOT ALREADY EXPUNGED SHALL BE AUTOMATICALLY EXPUNGED BY THE COURT UPON THE ATTAINMENT OF THE RESPONDENT'S TWENTY- FIRST BIRTHDAY. 7. IF EXPUNGEMENT IS OBTAINED AUTOMATICALLY OR BY MOTION, THE CLERK OF THE COURT SHALL NOTIFY THE COMMISSIONER OF THE DIVISION OF CRIMINAL JUSTICE SERVICES, THE ATTORNEY FOR THE CHILD, THE DIRECTOR OF THE APPRO- PRIATE PRESENTMENT AGENCY, THE HEAD OF THE APPROPRIATE PROBATION DEPART- MENT, THE HEADS OF ALL POLICE DEPARTMENTS AND LAW ENFORCEMENT AGENCIES AND ALL OTHER AGENCIES NAMED IN THE COURT FILES, INCLUDING OTHER STATE AGENCIES WHICH MAY HAVE RECORDS OF THE JUVENILE'S ADJUDICATION, DETENTION, AND TREATMENT FACILITIES, WHO SHALL DESTROY SUCH RECORDS WITHOUT UNNECESSARY DELAY. EACH AGENCY SHALL AFFIRM IN AN AFFIDAVIT OF EXPUNGEMENT TO THE COURT THAT IT DESTROYED ALL PAPER AND ELECTRONIC COPIES OF THE EXPUNGED RECORDS. THE DIVISION OF CRIMINAL JUSTICE SERVICES SHALL NOTIFY THE AGENCY OR AGENCIES WHICH FORWARDED ANY JUVE- NILE RECORDS OF THEIR OBLIGATION TO DESTROY THOSE RECORDS IN THEIR POSSESSION. 8. AN AGREEMENT BY THE RESPONDENT TO PREVENT EXPUNGEMENT UNDER THIS SECTION MAY NOT BE A CONDITION FOR THE RESPONDENT TO ENTER AN ADMISSION TO A REDUCED CHARGE PURSUANT TO SECTION 321.3 OF THIS ARTICLE. S. 3104--A 8 § 5. Section 381.2 of the family court act, as added by chapter 920 of the laws of 1982, subdivision 2 as amended by chapter 926 of the laws of 1982, is amended to read as follows: § 381.2. Use of records in other courts. 1. Neither the fact that a person was before the family court under this article for a hearing nor any confession, admission or statement made by him OR HER to the court or to any officer thereof in any stage of the proceeding is admissible as evidence against him OR HER or his OR HER interests, in any other court. 2. Notwithstanding the provisions of subdivision one OF THIS SECTION, another court, in imposing sentence upon an adult after conviction may receive and consider the records and information on file with the family court, unless such records and information have been [sealed] EXPUNGED pursuant to section 375.1 OR SECTION 375.2 OF THIS ARTICLE. § 6. Section 381.3 of the family court act, as added by chapter 920 of the laws of 1982, paragraph (b) of subdivision 2 as amended by chapter 926 of the laws of 1982, is amended to read as follows: § 381.3. Use of [police] LAW ENFORCEMENT records. 1. All [police] LAW ENFORCEMENT records relating to the arrest, DETENTION, APPREHENSION, and disposition of any person under this article shall be kept in files separate and apart from the arrests of adults and shall be withheld from public inspection. 2. ALL LAW ENFORCEMENT RECORDS RELATING TO THE ARREST, DETENTION, APPREHENSION, AND DISPOSITION OF ANY JUVENILES SHALL BE DESTROYED FORTH- WITH UPON THE OCCURRENCE OF ONE OF THE FOLLOWING: (A) AFTER THE ARREST OF SUCH PERSON, THE ARRESTING LAW ENFORCEMENT AGENCY, PRIOR TO THE FILING OF AN ACCUSATORY INSTRUMENT IN COURT, ELECTS NOT TO PROCEED FURTHER; (B) PRIOR TO THE FILING OF A PETITION, THE PRESENTMENT AGENCY ELECTS NOT TO COMMENCE A DELINQUENCY ACTION; (C) PRIOR TO THE FILING OF A PETITION, THE PROBATION DEPARTMENT HAS ADJUSTED THE CASE OR TERMINATED THE CASE WITHOUT ADJUSTMENT; (D) TERMINATION OF THE DELINQUENCY ACTION IN FAVOR OF A RESPONDENT PURSUANT TO SECTION 375.1 OF THIS ARTICLE; OR (E) FOLLOWING A FINDING OF DELINQUENCY, SEALING OR EXPUNGEMENT IS ORDERED PURSUANT TO SECTION 375.1 OR 375.2 OF THIS ARTICLE. 3. LAW ENFORCEMENT OR OTHER PUBLIC OFFICIALS MAY NOT ACCESS OR DISCLOSE CONFIDENTIAL JUVENILE RECORDS WITHOUT A COURT ORDER FOLLOWING NOTICE AND A HEARING PURSUANT TO SUBDIVISION FOUR OF SECTION 306.1 OF THIS ARTICLE. 4. Notwithstanding the provisions of subdivision [one] THREE OF THIS SECTION, the family court in the county in which the petition was adju- dicated may, upon motion and for good cause shown, order such records open: (a) to the respondent or his OR HER parent or person responsible for his OR HER care; or (b) if the respondent is subsequently convicted of a crime, to a judge of the court in which he was convicted, unless such record has been [sealed] EXPUNGED pursuant to section 375.1 OR SECTION 375.2 OF THIS ARTICLE. [3.] 5. An order issued under subdivision [two] FOUR OF THIS SECTION must be in writing. 6. FOR THE PURPOSES OF THIS SECTION, "RECORDS" SHALL INCLUDE LAW ENFORCEMENT FILES, REPORTS, EXHIBITS OR OTHER MATERIAL WHICH CONTAINS INFORMATION RELATING TO CONTACT WITH ANY LAW ENFORCEMENT AGENCY AND ALSO INCLUDES ELECTRONIC INFORMATION RECORDED AND STORED STEMMING FROM AN S. 3104--A 9 ARREST OR SUBSEQUENT INTERROGATIONS AND INTERVIEWS, AND SHALL ALSO APPLY TO ANY INFORMATION THAT IS KEPT MANUALLY, THROUGH THE USE OF ELECTRONIC DATA PROCESSING EQUIPMENT, THROUGH ELECTRONIC RECORDING OR BY ANY OTHER MEANS BY A LAW ENFORCEMENT AGENCY OF THE STATE OF NEW YORK. 7. VIOLATION OF THIS SECTION SHALL CREATE A CAUSE OF ACTION FOR CIVIL DAMAGES UP TO ONE THOUSAND DOLLARS. § 7. This act shall take effect on the ninetieth day after it shall have become a law.
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