Relates to fingerprinting of certain individuals under probation supervision

Sections 2 and 3 of the bill would make conforming changes to Criminal Procedure Law §§ 160.20 and 160.30. In addition, new language in Criminal Procedure Law § 160.30 would create a statutory mechanism whereby, except for an out-of-state probationer, fingerprint records would be expunged for any individual whose fingerprints were taken for a crime not listed in Criminal Procedure Law § 160.1 0(1) or pursuant to Family Court Act § 841-a, upon verification that the individual is no longer under probation supervision. The Division of Criminal Justice Services (DCJS) would verify that the individual is no longer under probation supervision and upon a positive verification, the fingerprint, and any photograph or palm print would be destroyed and the file sealed.

Section 4 of the bill would add a new Family Court Act § 841-a to create identical fingerprinting requirements for individuals 16 years of age or older who receive a disposition of probation from the Family Court for a felony or misdemeanor constituting a family offense.

Section 5 of the bill sets forth the effective date.

Existing law

Criminal Procedure Law § 160.10 enumerates the circumstances under which criminal defendants are fingerprinted and the duties of police with respect to fingerprinting. Generally, under existing law, all defendants charged with felonies must be fingerprinted, as must those who are charged with misdemeanors that are: (1) defined in the Penal Law; or (2) defined outside the Penal Law that would constitute a felony if the defendant had a previous judgment of conviction for a crime.

As a result, many non-Penal Law crimes, including certain Vehicle and Traffic Law offenses and certain family offenses contained in Article 8 of the Family Court Act, are not fingerprintable. This means that those convicted of such misdemeanor crimes as Aggravated Unlicensed Operation of a Motor Vehicle, Reckless Driving, Leaving the Scene of an Incident Without Reporting, and Animal Cruelty, and those determined by a Family Court to have committed a family offense, whether misdemeanor or felony, are not fingerprintable, even when they receive a probation disposition. Further, many stalkers and domestic violence predators are placed on probation supervision, yet are never fingerprinted, and while on probation may be arrested for a new crime without the probation department's knowledge or intervention.

Legislative history

A similar bill (S.7409) passed the Senate in 2007 but did not pass in the Assembly.

Statement in support

Probation departments are hindered in their ability to effectively monitor persons placed under their supervision because numerous individuals placed under probation supervision are not legally subject to fingerprinting. This bill would improve the administration of the probation system in significant ways that are essential to ensuring the safety of probation officers and the public. It would also ensure that the courts have the necessary information to determine whether probation supervision is an appropriate sentence in a particular case.

First, local probation departments cannot secure available criminal history records of those they supervise when a probationer is sentenced to supervision for a non-fingerprintable offense. This bill would enable these probation departments to obtain those records and would also ensure that courts are aware of an offender's previous criminal record before imposing a sentence of probation supervision.

Second, requiring that all probationers be fingerprinted will ensure that a local probation department will receive notice of a probationer's subsequent arrest. Without fingerprinting, probation departments will not receive critically valuable criminal "hit notices" (advising of new arrests) from the New York State Police Information Network (NYSPIN) and promptly have at their disposal the means to learn about and question those under their supervision who have been arrested for a fingerprintable offense. Expanding the pool of re-arrest notices generated through fingerprint records will enable probation departments to immediately identify individuals who may require intensive supervision, modified release conditions (e.g., electronic monitoring, drug testing) or other intermediate sanctions to enforce mandatory and/or permissive conditions and prevent revocation and risk of state or local incarceration.

Third, requiring that DCJS notify the local probation department of the probationer's new arrest will ensure that the probation department can fulfill its obligation to notify the court of a violation, and enforce the conditions of the court's probation sentence. Persons under probation supervision are required to adhere to their terms and conditions of release, which include adherence to law-abiding behavior. Criminal Procedure Law § 410.10(2) provides that commission of an additional offense, other than a traffic infraction, after imposition of a sentence of probation constitutes a ground for revocation of such sentence. Uniform Rules of the Family Court governing family offenses also require probation conditions relating to good conduct. Thus, it is consistent with offender accountability and public protection for probation departments and the courts - to have the ability to receive prompt notification of alleged probationer misconduct while under probation supervision.

To address long-term stigmatization concerns with respect to maintaining fingerprints of individuals whose crime of conviction is not currently a fingerprintable offense, this proposal establishes a mechanism whereby the fingerprint record will be expunged upon verification that the individual is no longer under probation supervision.

It is fair, reasonable and consistent with public safety and offender accountability to clarify that out-of-state probationers accepted for probation supervision in New York State under the Interstate Compact for Adult Offender Supervision are routinely subject to fingerprinting.

Budget implications

Requiring fingerprinting of these additional offenders may create modest costs for DCJS, which it can handle within existing resources.

Effective date

This bill would take effect 180 days after it becomes a law, and would apply to all individuals under probation supervision on that date.