Requires the division of criminal justice services to send notice to certain agencies relating to warrants

Existing law

Under Subsection six of Executive Law §837, the Division of Criminal Justice Services (DCJS) is required to establish a repository to maintain a record of all arrests and prosecutions in New York State, creating the individual's rap sheet. The registry's data includes a record of all warrants issued as part of a criminal proceeding. Once these warrants are vacated by the court, this information should then be sent to DCJS and recorded in the individual's rap sheet.

Justification

Due to failures in communication among the various criminal justice agencies, the process outlined in the Executive Law is not always followed, resulting in many individuals having rap sheets that list warrants as active that have actually been recalled. These mistakes can cause an individual to be denied employment, housing or public benefits for which they are eligible. It could also potentially lead the individual to be mistakenly arrested. The proposed amendment offers an opportunity for individuals who have incorrect, outdated warrant information on their record to have that information removed.

Currently, in order to correct warrant-related mistakes of this sort, an individual must return to the court where their case was heard and ask the clerk of the court to forward information regarding vacatur of their warrant to DCJS so that this information may be correctly reflected on their criminal record. An individual must follow this process even when it is clear from the criminal record that further proceedings occurred and that the warrant in question must have been previously cleared.

This process becomes more complex, or even impossible, where the phantom warrant involves an old case. Under the Records Retention and Disposition Schedule issued by the Office of Court Administration (OCA), courts are ordered to destroy records of all returned warrants within five years of the date of return or recall. Court case files, which may also contain records concerning warrants, are also scheduled to be destroyed after a period of time. This period can be as short a six years where the case was terminated in favor of the defendant or resulted in a violation disposition. Even records of cases that ended in a felony conviction are only retained for 25 years before they are destroyed. As a result, once the courts no longer have any record of these warrants, these persons have no opportunity to have this inaccurate information removed from their record. This legislation proposes that DCJS establish a system so that:

* For all current and future cases, whenever DCJS has a record that a case contains an open warrant and then receives a notice of new proceedings in the case - which makes it nearly certain that the warrant has already been executed or vacated - but there has been no notification forwarded to the agency that the warrant has been vacated, DCJS will:

* Send an automatic notification to all relevant criminal justice agencies. * These agencies will have 30 days to establish whether or not the warrant remains open and respond to DCJS . If either a) DCJS hears the warrants have been vacated or b) if none of the agencies provide any information about the warrant at the end of the 60 days, DCJS will assume that the warrant has in fact been vacated, and will correct its records to reflect this.

* For older cases that contain an open warrant as well as a record of later proceedings within the same case, DCJS will follow the same procedure as above upon receipt of a written request from the person listed in their rap sheet or their representative.

In addition to the notification process described above, two other safeguards ensure that individuals whose warrants do in fact remain legitimately open will not have these warrants improperly vacated. First, under the OCA record retention policy set forth above, courts are required to keep records of any warrants that have not been vacated. Additionally, the court must also keep a record of any case that remains open for 50 years if the highest listed charge is a misdemeanor, and 75 years if the highest listed charge is a felony. One additional safeguard would also exist if the individual in question had been incarcerated in a New York State facility. According to regulations issued by the Department of Correctional Services (DOCS), the individual in question would only have been eligible for a temporary release program after DOCS contacted any relevant courts to make sure that any cases that appeared to remain open, according to their criminal record, had in fact been disposed of.

Legislative history

2008: S.8011-A/A.10858-A.

Fiscal implications

To be determined.

Effective date

January 1, 2012