Relates to an order upon termination of criminal action in favor of the accused

The new subdivision also requires DCJS to verify criminal record information where an accusatory instrument has been filed and the last action of the case is not the issuance of a bench warrant. Under these circumstances, one year after the last action in the case, where no action has been taken on the case and no disposition has been recorded, DCJS is required to contact various law enforcement entities and the courts in order to seek the missing information. In the event no information is forthcoming, the criminal action or proceeding will be deemed terminated in favor of the accused and the records sealed.

Section 2 of the bill is the effective date.

Existing law

Under Criminal Procedure Law § 160.50 records pertaining to criminal actions that have been terminated in favor of the accused are to be sealed. These include cases that prosecutors elect not to prosecute (CPL §160.5(3)(i)) and arrests that the police elect not to pursue (CPL § 160.50(3)(j)).

Justification

Although the law provides for the sealing of certain records, in many cases, administrative failures occur, leaving information about these and other cases that have ended in a person's favor unsealed on the person's permanent criminal record (also known as a rap sheet) maintained by the Division of Criminal Justice Services (DCJS).

Attempts to correct these errors often prove unsuccessful because no information about the cases can be found, either because the parties involved have destroyed their records or because no records have been generated because of the preliminary nature of the case. These permanent inaccuracies on a person's record often lead to a loss of employment and housing opportunities.

In order to remedy this problem, it is proposed that CPL §160.50 be amended and a process be put in place for correcting the errors and inaccurate information that appear on rap sheets.

Examples include: Cases where Arrest Information but No Docket Number Appears: In many cases, rap sheets only contain information about arrests. No other information, not even a docket number, appears. No docket number on a rap sheet most likely signifies either that the prosecutor has elected not to prosecute the case, or that the police have elected not to pursue the arrest.

In these instances, for cases generated after the effective date of this legislation, it is proposed that six months after the date of arrest, DCJS send an automatic notification to all relevant criminal justice agencies - the arresting agency, the district attorney, the clerk of the court, the local correctional facility, the State Department of Corrections (DOCS), and the Office of Court Administration (OCA) - asking whether the case remains open. If, after 60 days, the parties have not responded, the case shall be considered dismissed and will be sealed by DCJS. If any of the relevant agencies provide new information, the record will be updated to include this information.

For cases generated before the effective date of this legislation, the individual will have the right to petition DCJS to have their case sealed. DCJS will then follow the same procedure listed above. In each circumstance, DCJS will notify all relevant criminal justice agencies when the case has been sealed.

Cases Where a Docket Number Appears but No Action has been Taken on the Case: In cases actively moving through the court system, actions taken in the case - arraignments, transfers, indictments, bench warrants usually appear on the person's criminal record. When a case has been docketed but no action has been taken for a year, and no warrant exists, the case should have either been dismissed, as speedy trial requirements would dictate that some action take place within that time, or disposed of.

In these instances, for cases generated after the effective date of this legislation, it is proposed that after a year from the date of the last court proceeding, DCJS send an automatic notification to all relevant criminal justice agencies - the arresting agency, the district attorney, the clerk of the court, the local correctional facilities, DOCS, and OCA - asking whether the case remains open. If, after 60 days, the parties have not responded, the case shall be sealed by DCJS.

If any of the relevant agencies provide new information, the record will be updated to include this information.

For cases generated before the effective date of this legislation, the individual will have the right to petition DCJS to have the case sealed. DCJS will then follow the same procedure listed above. In each circumstance, DCJS will notify all relevant criminal justice agencies when the case has been sealed.

In an age where the criminal history background check is almost universal, New York's sealing laws act as a guard against illegal workplace 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 a person's favor.

However, the sealing laws are only effective if the various entities in the criminal justice system communicate with each other. According to Criminal Procedural Law, the arresting agency, the district attorney, the clerk 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 DCJS as required. Since there is no current system for ensuring that agencies update DCJS, many records at DCJS remain inaccurate for a long time without anyone's knowledge. As DCJS cannot currently act without information from the relevant agency, these inaccuracies 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 own record retention schedules.

As a result, people with permanent inaccuracies on their rap sheet are in limbo: they cannot contest inaccurate or incomplete information on their rap sheet if the necessary correctives (the original records) have been purged. Such people also lose the protection they are entitled to under New York State sealing laws and the Federal and New York State Fair Credit Reporting Acts.

To remedy this problem, a system is proposed that will identify these incomplete records and correct the error, either by entering the correct disposition or sealing the record, when appropriate. The amendment would require that DCJS contact affected agencies and the courts before sealing a record. DOCS currently retains the incarceration information of people with felony convictions for more than thirty years.

The failure in communication among the various criminal justice agencies has caused countless individuals to lose employment, benefits and housing opportunities. This proposal corrects these administrative failures and will help many New Yorkers lead productive, law-biding lives.

Legislative history

2008: S.8009-A/A.10859-A.

Fiscal implications

To be determined.

Effective date

January 1, 2011.