BILL NUMBER: S4759

SPONSOR: BAILEY
 
TITLE OF BILL:

An act to amend the executive law and the judiciary law, in relation to
providing that criminal history records excludes unresolved cases

 
PURPOSE:

To require the Division of Criminal Justice Services (DCJS) and the
Office of Court Administration (OCA) to refrain from including undis-
posed case information on criminal history record reports except for law
enforcement and other specified purposes.

 
SUMMARY OF PROVISIONS:

Section one of the bill adds a new section to the Executive Law to
prohibit DCJS from including undisposed case information on criminal
history record reports (i.e., "rap sheets") where the report is produced
for a non-law enforcement or non-criminal justice purpose.  The bill
defines "undisposed case" as a criminal action or proceeding, or an
              

arrest incident, that appears on an individual's criminal history record
for which no conviction, sentence, or other final disposition (other
than an apparently unexecuted bench warrant) appears and with respect to
which no entry has been made on the DCJS record for a period of at least
five years. The prohibition would not apply to records produced by DCJS
solely for bona fide research or internal recordkeeping purposes.

Section two of the bill establishes a corresponding requirement for OCA.
It adds a new paragraph to the relevant provision of the Judiciary Law
to require OCA to refrain from reporting undisposed cases on criminal
history reports it produces except where the report is prepared for
internal recordkeeping or bona fide research purposes.

 
EXISTING LAW:

DCJS is the state repository for criminal history records and is permit-
ted, or required under law in certain circumstances, to search its
records and produce a report on an individual's criminal history record
(i.e., a "rap sheet"). Similarly, OCA is authorized under law to search
its criminal court case records and produce a criminal history record
report regarding the individual whose record is searched. Under Criminal
Procedure Law 160.50, records pertaining to criminal actions that have
been terminated in favor of the accused are to be sealed and, subject to
certain exceptions, are not to be released by DCJS or OCA. These include
cases that, following the transmission of arrest fingerprints to DCJS,
prosecutors elect not to prosecute and police elect not to pursue
further.

 
JUSTIFICATION:

Although the law provides for the sealing of certain records, in some
cases, administrative failures occur, leaving information about cases
that have ended in a person's favor, or have been filed in court but
never brought to any final disposition, unsealed on the person's perma-
nent criminal history record maintained by DCJS. Attempts to correct
these errors and eliminate undisposed case references often prove unsuc-
cessful because no information about the cases can be found, either
because the parties involved have destroyed their records, because no
records have been generated due to the preliminary nature of the case or
because the case in question has been deemed dismissed by another court
as a result of action taken in an entirely separate case. Examples of
this include cases where preliminary arrest information but no other
information, not even a docket number, appears on the criminal history
record. The absence of a docket number on a rap sheet where an arrest is
indicated may signify that, after the submission of arrest fingerprints
to DCJS, the prosecutor has elected not to prosecute the case, or the
police have elected not to pursue the arrest. Other examples include
cases where a court docket number appears but no furth er action on the
case is reflected. In cases actively moving through the court system,
actions taken in the case arraignments, transfers, removals, indict-
ments, bench warrants - usually appear on the person's criminal history
record. When an arrest incident appears or a case has been docketed but
no action has been taken for a period of five years, and no warrant has
been issued, the case should likely have either been dismissed (as stat-
utory speedy trial requirements would dictate that trial or some other
action take place within that time) or otherwise disposed of.

In an age where the criminal history background check is almost
universal, New York's sealing laws act as a guard against illegal work-
place discrimination by preventing the inappropriate disclosure or use
by employers or licensing agencies of records of, arrest that resulted
either in a violation (non-criminal) conviction or were terminated in
person's favor. However, the sealing laws are only effective if the
various entities in the criminal justice system effectively communicate
with each other.

According to the Criminal Procedural Law, the arresting agency, the
district attorney, the cleric of the court, and OCA are all responsible
for reporting to DCJS that certain criminal actions ended in a person's
favor. Administrative failures do occur, however, and sometimes these
agencies fail to update DC3S as required. Since there is no current
system for ensuring that agencies update DOS, many records at DCJS
remain inaccurate for an extended period without anyone's knowledge. As
DOS cannot currently at to correct or complete the records without
information from the relevant agency, these inaccuracies, in effect,
become permanent once enough time has passed for the criminal justice
agency involved to be able to destroy the original record according to
its own record retention schedule. In situations where the case has been
terminated in a person's favor, the original record may be destroyed
after only six years by the courts and OCA. Other agencies, including
the police and the District Attorneys' Offices, have their in-record
retention schedules. As a result, people with permanent inaccuracies on
their rap sheet are in limbo: they cannot contest inaccurate or incom-
plete information on their rap sheet or criminal history recor d if the
necessary correctives (the original records) nave been purged or are
otherwise unavailable or incomplete. Such people also lose the
protections they may be entitled to under New York State sealing laws
and the Federal and New York State Fair Credit Reporting Acts. The fail-
ure in communication among the various criminal justice agencies has
caused countless individuals to lose employment, benefit, and housing
opportunities.

To remedy the problem, this measure would prohibit DCJS and OCA from
including "undisposed case" information, as defined by the bill, in any
report of a criminal history search conducted by the agency except where
the report is produced by DC35 for a "qualified agency" (or a federal or
state laW enforcement agency) for a criminal justice purpose, or by DCJS
or OCA for a bona fide research or internal recordkeeping purpose. In so
doing, the bill will effectively address the administrative failures
described above and will help many New Yorkers lead productive, law-a-
biding lives.

 
LEGISLATIVE HISTORY:

2019-20: Referred to Finance

2021-22: Committed to Rules

2023-24:  Committed to Rules

 
FISCAL IMPLICATIONS:

To be determined.

 
EFFECTIVE DATE:
This act shall take effect one hundred eighty days after becoming a law,
with provisions regarding searches of criminal history records and
efforts by DCJS and OCA to update their criminal history records.