NY State Senate Bill 2023-S5161

Senate Bill S5161

2023-2024 Legislative Session

Relates to orders of adjournment in contemplation of dismissal and sealing of defendant records

download bill text pdf

Current Bill Status - In Senate Committee Codes 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

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 03, 2024	referred to codes
Feb 23, 2023	referred to codes

2023-S5161 (ACTIVE) - Details

See Assembly Version of this Bill:: A3697
Current Committee:: Senate Codes
Law Section:: Criminal Procedure Law
Laws Affected:: Amd §§160.58, 170.55 & 170.56, CP L
Versions Introduced in Other Legislative Sessions:: 2017-2018: S7188, A8798
2019-2020: S2278, A1364
2021-2022: S479, A90

2023-S5161 (ACTIVE) - Summary

Relates to orders of adjournment in contemplation of dismissal by mandating that judges seal certain records of defendants rather than giving judge's discretion for such an action; limits the total period of adjournment to 90 days.

2023-S5161 (ACTIVE) - Sponsor Memo

                                 
BILL NUMBER: S5161

SPONSOR: HOYLMAN-SIGAL
 
TITLE OF BILL:

An act to amend the criminal procedure law, in relation to orders of
adjournment in contemplation of dismissal and sealing of defendant
records

 
PURPOSE OR GENERAL IDEA OF BILL:

The purpose of this bill is to substantially reduce the probationary
period of an ACD, an to expand the sealing of records of criminal
defendants during the ACD probationary period.

 
SUMMARY OF SPECIFIC PROVISIONS:

Section 1 mandates the sealing of records for criminal defendants
charged with specific offenses who have successfully completed a judi-
cially sanctioned drug treatment program.

Section 2 expands the definition of records a court may seal for current

and prior criminal offenses.

Section 3 eliminates subjective criteria a court may rely upon in deter-
mining whether to seal a defendant's criminal record. This section
instructs the court to rely upon the defendant having completed a judi-
cially sanctioned treatment program and consider the employment benefit
to the defendant in having his or her records sealed.

Section 4 describes the circumstances under which a criminal defendant's
records are unsealed.

Section 5 reduces the probationary period for ACD's in non-family
offenses from up to 1 year to no more than 90 days.

Section 6 reduces the probationary period for ACD's in marihuana related
criminal offense from up to 1 year to no more than 90 days.  This
section also expands which records can be sealed in a marihuana related
criminal offense.

Section 7 notes the effective date to be sixty days after the bill's
passage.

 
JUSTIFICATION:

ACD's are a common place criminal sanction given to defendants for low-
level criminal offenses, such as public consumption of alcohol or mari-
huana related offenses. There is no public policy rationale for an up to
1 year probationary period for these low-level offenses. A shorter
probationary period of no more than 90 days is consistent with the mini-
mal nature of these type of criminal offenses. Also, by expanding which
records a court can seal and by eliminating subjective factors a court
may consider during a hearing to seal records, the legislation will
result in more defendants having their ACD record sealed. Given that ACD
violations can result in eviction from public housing, suspension or
loss of employment, and even discharge from military service, sealing of
records should occur in most of these low level offense cases.

 
PRIOR LEGISLATIVE HISTORY:

S.0479 of 2021-2022 (Hoylman): Died in Codes

A.0090 of 2021-2022 (Quart): Died in Codes

S.2278 of 2019-2020 (Hoylman): Died in Codes

A.1364 of 2019-2020 (Quart): Died on 3rd Reading

S.7188-A of 2018 (Hoylman): Died in Codes

A.8789-A of 2017-2018 (Quart): Died in Codes/Died on 3rd Reading

 
FISCAL IMPLICATIONS:

None to the state

 
EFFECTIVE DATE:
60 days

2023-S5161 (ACTIVE) - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5161
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                             February 23, 2023
                                ___________
 
 Introduced  by Sen. HOYLMAN-SIGAL -- read twice and ordered printed, and
   when printed to be committed to the Committee on Codes
 
 AN ACT to amend the criminal procedure law, in  relation  to  orders  of
   adjournment  in  contemplation  of  dismissal and sealing of defendant
   records

   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  Subdivision 1 of section 160.58 of the criminal procedure
 law, as added by section 3 of part AAA of chapter  56  of  the  laws  of
 2009, is amended to read as follows:
   1. A defendant convicted of any offense defined in article two hundred
 twenty  [or  two  hundred  twenty-one]  of  the penal law or a specified
 offense defined in subdivision five of section 410.91  of  this  chapter
 who  has successfully completed a judicial diversion program under arti-
 cle two hundred sixteen of this chapter, or one of the programs  hereto-
 fore known as drug treatment alternative to prison or another judicially
 sanctioned  drug treatment program of similar duration, requirements and
 level of supervision, and has completed the  sentence  imposed  for  the
 offense  or  offenses,  [is  eligible  to]  SHALL  have  such offense or
 offenses sealed pursuant to this section.
   § 2. Subdivision 2 of section 160.58 of the criminal procedure law, as
 added by section 3 of part AAA of chapter 56 of the  laws  of  2009,  is
 amended to read as follows:
   2.  The  court that sentenced the defendant to a judicially sanctioned
 drug treatment program [may on its own motion,  or  on  the  defendant's
 motion,]  SHALL  order  that all official records and papers relating to
 the arrest, prosecution and conviction which resulted in the defendant's
 participation in the judicially sanctioned  drug  treatment  program  be
 conditionally  sealed.  In  such  case, the court may also conditionally
 seal the arrest, prosecution and conviction records  for  no  more  than
 [three]  FIVE  of  the defendant's prior [eligible] misdemeanors, [which

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD07176-01-3

 S. 5161                             2

 for purposes  of  this  subdivision  shall  be  limited  to  misdemeanor
 offenses defined in article two hundred twenty or two hundred twenty-one
 of  the  penal law.   The court may only seal the records of the defend-
 ant's arrests, prosecutions and convictions when] PROVIDED THAT A MISDE-
 MEANOR FOR WHICH REGISTRATION AS A SEX OFFENDER IS REQUIRED SHALL NOT BE
 SEALED PURSUANT TO THIS SECTION. THE COURT MAY SEAL SUCH RECORDS WHEN:
   (a)  the sentencing court has requested and received from the division
 of criminal justice services or the Federal Bureau  of  Investigation  a
 fingerprint  based  criminal  history record of the defendant, including
 any sealed or suppressed information. The division of  criminal  justice
 services  shall also include a criminal history report, if any, from the
 Federal Bureau of Investigation regarding any criminal history  informa-
 tion  that  occurred  in  other  jurisdictions.  The  division is hereby
 authorized to receive such information from the Federal Bureau of Inves-
 tigation for this purpose. The parties shall  be  permitted  to  examine
 these records;
   (b)  the  defendant or court has identified the misdemeanor conviction
 or convictions for which relief may be granted;
   (c) the court has received documentation that the sentences imposed on
 the [eligible] misdemeanor convictions have been  completed,  or  if  no
 such  documentation  is reasonably available, a sworn affidavit that the
 sentences imposed on the prior misdemeanors have been completed; and
   (d) the court has notified the district attorney of each  jurisdiction
 in  which the defendant has been convicted of an offense with respect to
 which sealing is sought, and the court or  courts  of  record  for  such
 offenses,  that  the  court  is  considering  sealing the records of the
 defendant's [eligible] misdemeanor convictions. Both the district attor-
 ney and the court shall be given a reasonable opportunity,  which  shall
 not  be  less than thirty days, in which to comment and submit materials
 to aid the court in making such a determination.
   § 3. Subdivision 3 of section 160.58 of the criminal procedure law, as
 added by section 3 of part AAA of chapter 56 of the  laws  of  2009,  is
 amended to read as follows:
   3. At the request of the defendant or the district attorney of a coun-
 ty  in  which the defendant committed a crime that is the subject of the
 sealing application, the court [may] SHALL conduct a hearing to consider
 and review any relevant evidence offered by either party that would  aid
 the court in its decision whether to seal the records of the defendant's
 arrests, prosecutions and convictions. In making such [a] determination,
 the court shall consider any relevant factors, including but not limited
 to THE FOLLOWING FACTORS: (i) the circumstances [and seriousness] of the
 offense or offenses that resulted in the conviction or convictions; (ii)
 [the  character  of the defendant, including his or her] THE DEFENDANT'S
 completion of the judicially sanctioned treatment program  as  described
 in  subdivision  one  of  this  section;  (iii) the defendant's criminal
 CONVICTION history TAKING INTO ACCOUNT THE TIME THAT HAS  ELAPSED  SINCE
 THE  OCCURRENCE  OF  ANY  CONVICTION AND THE AGE OF THE DEFENDANT AT THE
 TIME OF SUCH CONVICTION; and (iv) the impact of sealing the  defendant's
 records  upon  his  or  her rehabilitation and his or her successful and
 productive reentry and reintegration into society, and on public safety.
   § 4. Subdivision 2 of section 170.55 of the criminal procedure law, as
 amended by chapter 222 of the laws  of  1994,  is  amended  to  read  as
 follows:
   2.  An  adjournment in contemplation of dismissal is an adjournment of
 the action without date ordered [with a view to ultimate]  INTENDED  FOR
 THE  dismissal  of  the accusatory instrument in furtherance of justice.
 S. 5161                             3
 
 Upon issuing such an order, the court must release the defendant on  his
 own recognizance.  [Upon application of the people, made at any time not
 more  than  six months, or in the case of a family offense as defined in
 subdivision  one  of section 530.11 of this chapter, one year, after the
 issuance of such order, the court may restore the case to  the  calendar
 upon  a  determination that dismissal of the accusatory instrument would
 not be in furtherance of justice, and the action must thereupon proceed.
 If the case is not so restored within such six months or one year  peri-
 od,  the  accusatory  instrument  is,  at the expiration of such period,
 deemed to have been dismissed by the court in furtherance  of  justice.]
 AT  ANY  TIME  PRIOR TO DISMISSAL THE COURT MAY MODIFY THE CONDITIONS OR
 EXTEND OR REDUCE THE TERM OF ADJOURNMENT, EXCEPT THAT THE  TOTAL  PERIOD
 OF  ADJOURNMENT SHALL NOT EXCEED NINETY DAYS, OR IN THE CASE OF A FAMILY
 OFFENSE AS DEFINED IN SECTION 530.11 OF  THIS  CHAPTER,  THE  PERIOD  OF
 ADJOURNMENT  SHALL  NOT  BE  MORE  THAN  ONE YEAR. UPON VIOLATION OF ANY
 CONDITION FIXED BY THE COURT, THE COURT MAY REVOKE ITS ORDER AND RESTORE
 THE CASE TO THE CALENDAR AND THE PROSECUTION MAY PROCEED. IF THE CASE IS
 NOT SO RESTORED TO THE CALENDAR DURING THE PERIOD FIXED  BY  THE  COURT,
 THE  ACCUSATORY  INSTRUMENT IS, AT THE EXPIRATION OF SUCH PERIOD, DEEMED
 TO HAVE BEEN DISMISSED.
   § 5. Section 170.56 of the criminal procedure law, as added by chapter
 1042 of the laws of 1971, subdivision 1 as amended by chapter 92 of  the
 laws  of 2021 and subdivision 3 as amended by chapter 905 of the laws of
 1977, is amended to read as follows:
 § 170.56 Adjournment in contemplation of dismissal  in  cases  involving
            marihuana.
   1.  Upon or after arraignment in a local criminal court upon an infor-
 mation, a prosecutor's information or a misdemeanor complaint, where the
 sole remaining count or counts  charge  a  violation  or  violations  of
 FORMER  section  222.10, 222.15, 222.25, 222.30, 222.45 or 222.50 of the
 penal law, or upon summons for a nuisance offense under  section  sixty-
 five-c  of  the alcoholic beverage control law and before the entry of a
 plea of guilty thereto or commencement of a trial  thereof,  the  court,
 upon  motion of a defendant, may order that all proceedings be suspended
 and the action adjourned in contemplation of dismissal, or upon a  find-
 ing  that  adjournment  would  not be necessary [or appropriate] and the
 setting forth in the record  of  the  reasons  for  such  findings,  may
 dismiss  in furtherance of justice the accusatory instrument[; provided,
 however, that the court may not order such adjournment in  contemplation
 of  dismissal or dismiss the accusatory instrument if: (a) the defendant
 has  previously  been  granted  such  adjournment  in  contemplation  of
 dismissal,  or (b) the defendant has previously been granted a dismissal
 under this section, or (c) the defendant has previously  been  convicted
 of any offense involving controlled substances, or (d) the defendant has
 previously  been convicted of a crime and the district attorney does not
 consent or (e) the defendant has previously been adjudicated a  youthful
 offender on the basis of any act or acts involving controlled substances
 and  the district attorney does not consent. Notwithstanding the limita-
 tions set forth in this  subdivision,  the  court  may  order  that  all
 proceedings  be  suspended  and the action adjourned in contemplation of
 dismissal  based  upon  a  finding  of  exceptional  circumstances.  For
 purposes  of  this  subdivision,  exceptional  circumstances exist when,
 regardless of the ultimate disposition of the case, the entry of a  plea
 of guilty is likely to result in severe or ongoing consequences, includ-
 ing, but not limited to, potential or actual immigration consequences].
 S. 5161                             4
 
   2.  [Upon ordering the action adjourned in contemplation of dismissal,
 the  court  must  set and specify such conditions for the adjournment as
 may be appropriate, and such conditions may include placing the  defend-
 ant  under  the supervision of any public or private agency. At any time
 prior  to  dismissal  the  court  may modify the conditions or extend or
 reduce the term of the adjournment, except  that  the  total  period  of
 adjournment  shall  not  exceed  twelve  months.   Upon violation of any
 condition fixed by the court, the court may revoke its order and restore
 the case to the calendar and the prosecution thereupon must proceed.  If
 the case is not so restored to the calendar during the period  fixed  by
 the court, the accusatory instrument is, at the expiration of such peri-
 od,  deemed  to  have  been dismissed in the furtherance of justice.] AN
 ADJOURNMENT IN CONTEMPLATION OF  DISMISSAL  IS  AN  ADJOURNMENT  OF  THE
 ACTION WITHOUT DATE ORDERED INTENDED FOR THE DISMISSAL OF THE ACCUSATORY
 INSTRUMENT  IN  FURTHERANCE  OF JUSTICE. UPON ISSUING SUCH AN ORDER, THE
 COURT MUST RELEASE THE DEFENDANT ON HIS OWN RECOGNIZANCE.   AT ANY  TIME
 PRIOR  TO  DISMISSAL  THE  COURT  MAY MODIFY THE CONDITIONS OR EXTEND OR
 REDUCE THE TERM OF ADJOURNMENT, EXCEPT THAT THE TOTAL PERIOD OF ADJOURN-
 MENT SHALL NOT EXCEED NINETY DAYS. UPON VIOLATION OF ANY CONDITION FIXED
 BY THE COURT, THE COURT MAY REVOKE ITS ORDER AND RESTORE THE CASE TO THE
 CALENDAR AND THE PROSECUTION MAY PROCEED. IF THE CASE IS NOT SO RESTORED
 TO THE CALENDAR DURING THE PERIOD FIXED BY  THE  COURT,  THE  ACCUSATORY
 INSTRUMENT  IS,  AT  THE  EXPIRATION OF SUCH PERIOD, DEEMED TO HAVE BEEN
 DISMISSED.
   3. Upon or after dismissal of such charges against  a  defendant  [not
 previously  convicted  of a crime,] the court shall order that all offi-
 cial records and papers, relating to the defendant's arrest  and  prose-
 cution, whether on file with the court, a police agency, or the New York
 state  division  of  criminal justice services, be sealed and, except as
 otherwise provided in paragraph (d) of subdivision one of section 160.50
 of this chapter, not made available to any person or public  or  private
 agency[;  except,  such records shall be made available under order of a
 court for the purpose of determining whether, in subsequent proceedings,
 such person qualifies under this section for a dismissal or  adjournment
 in contemplation of dismissal of the accusatory instrument].
   4. Upon the granting of an order pursuant to subdivision three OF THIS
 SECTION,  the  arrest  and prosecution shall be deemed a nullity and the
 defendant shall be restored, in contemplation of law, to the  status  he
 occupied before his arrest and prosecution.
   §  6.  This  act  shall take effect on the sixtieth day after it shall
 have become a law.

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