Relates to the sealing of certain court records for noncriminal offenses

Section two of this bill adds two new paragraphs lettered (e) and (D to subdivision 1 of CPL section 160.55 and re-letters existing paragraph (e) as paragraph (g). The two new paragraphs generally give the court, prosecutor and defense access to the sealed court records under specific circumstances and add re-disclosure limitations that apply when sealed records are made available under section 160.55( 1) (d) or (e). More specifically, new paragraph (e) makes sealed court records available to a prosecutor in furtherance of a pending criminal investigation and also to the court, the prosecution and the defense when a case is reopened, when the former defendant is charged with a new crime, and when the former defendant becomes a witness. New paragraph (f) limits the use of unsealed records and prohibits re-disclosure by those who have obtained lawful access. It also provides that after the proceeding has been concluded, the records shall be resealed.

Section 3 of the bill amends subdivision 3 of CPL section 160.55 by substituting a reference to the convictions described in the opening paragraph of subdivision 1 for language specifically describing those convictions.

Section 4 of the bill is the effective date. It also provides that the court system shall implement record-sealing for cases completed prior to the effective date, without the need for individual motions for relief

Justification

This law will amend the criminal procedure law, in relation to the sealing of court records of persons who were convicted of non-criminal charges. Because court records are both publicly available and now computerized, and because licensed investigative agencies can access those records, potential employers, potential creditors and others who use investigative agencies to investigate their applicants can now use court records, instead of requesting criminal history records (rap sheets) from the Division of Criminal Justice Services. This bill ensures that court records, except for published opinions and records on appeal, will be sealed in the same manner as records on file with the Division of Criminal Justice Services.

The fact that under existing law, court records, unlike fingerprint and associated police and prosecution records, are not sealed has become a serious problem. Court records are now computerized, and the court system sells easy, computerized access to licensed investigative agencies, among others. Indeed, access to court records is easier than access to NYSIID (rap sheet) information. The result is that potential employers, potential creditors and others who use investigative agencies to investigate their applicants now use court records, instead of rap sheet inquiries, to learn about criminal histories. These electronic court records contain not only the charge of conviction, but also contain additional charges that appear in arrest documents or accusatory instruments, charges that were dropped by the prosecution or dismissed by the court, in many cases because the charges were unprovable or inaccurate. In enacting CPL § 160.55, the Legislature sought to shield persons who were convicted only of non-criminal offenses from employment discrimination and damage to their reputations arising from their arrests. This bill restores the Legislature's original intent, while also respecting the purpose behind the Legislature's 1992 amendment (chapter 249, laws of 1992) clarifying that court records were not to be sealed under §160.55.

At the time CPL § 160.55 was originally enacted, the goal of eliminating employment-related discrimination against this class of persons could be accomplished by sealing fingerprint-related records. Court records were not normally used to investigate job applicants because of the practical difficulty of traveling to every courthouse. The Legislature's 1992 amendment was not meant to facilitate the discrimination that § 160.55 was meant to prohibit, but was meant to assure that persons who pled to traffic infractions or violations could not hide their past petty-offense convictions in the event of future violations of the law. (See, e.g., memo of Dept. of Motor Vehicles, expressing concern that sealing court records could impair the Department's efforts to maintain accurate driving records and impose appropriate license sanctions.) The amendment would allow intended uses of these records while preventing unintended uses.

The specific provisions of this bill allow the court, the prosecution and the defense to gain access to court records sealed under CPL § 160.55 when a sealed case is re-opened (e.g., when a defendant has failed to perform restitution or community service), when the defendant is re-arrested, or when the former defendant testifies as a witness. It also allows a prosecutor access to such records in furtherance of a pending criminal investigation. This serves the legitimate desire of the prosecution to consider the previous charges in formulating their recommended disposition of the new case, and also serves the legitimate need of trial attorneys to be able to cross examine witnesses. The provisions reinforce the distinction between CPL § 160.50, under which cases terminated in the defendant's favor are to be "deemed a nullity," under § 160.60, and CPL § 160.55, under which a conviction exists but should not be the basis for discrimination in employment or other non-criminal contexts. The bill also limits the use of unsealed records and prohibits re"disclosure by persons and agencies who have obtained lawful access. This prohibition is implicit in existing law, but it is an added protection to spell it out. Cf. § 995-d of the Executive Law, making DNA records confidential, and prohibiting unauthorized "redisclosure" of such records outside the limited contexts in which disclosure is lawful. Finally, the proposed legislation requires the court system to implement record-sealing for completed cases. This is readily achievable, particularly for computerized records, and for paper records which are specifically requested. These Court records already bear an indication that they are sealed under CPL § 16 0.55. There is no reason to require a person whose law enforcement records are already sealed to come into court and move for sealing of the court records. Imposing such a requirement would nullify the value of the amendment for many tens of thousands of persons who would otherwise benefit from it.

Legislative history

A.8435 (2005-06).

Fiscal implications

To be determined. EFFECTIVE DATE : This act shall take effect on the first of November following the date after it shall have become a law.