Provides that criminal record reports created by the division of criminal justice services shall exclude information about undisposed cases

Section 2 of the bill would add new paragraph to Judiciary Law § 212(2) to establish a corresponding requirement and stipulations for OCA.

Section 3 of the bill would provide an effective date of 180 days after enactment.

Existing law

Currently, pursuant to Criminal Procedure Law (CPL) § 160.50, records of 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 (CPL § 160.5(3)(i)), and arrests that the police elect not to pursue (CPL § 160.50(3)(j)).

Additionally, pursuant to Family Court Act § 306.2, where DCJS has not received disposition information within two years of an arrest, DCJS shall, until such up-to-date information is received, withhold the record of that arrest and any related activity in disseminating criminal history information.

Legislative history

This is a new bill.

Statement in support

Although current law provides for the sealing of certain criminal records, in some cases administrative breakdowns occur, leaving information about cases that have been terminated in a person's favor, or have been filed in court but never brought to any final disposition, open on a person's permanent criminal history record. Attempts to correct these errors often prove unsuccessful because the parties involved no longer have records, 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.

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 (CPL § 160.55) or were terminated in a person's favor (CPL § 160.50). However, the sealing laws are only effective if the various entities in the criminal justice system communicate with each other. Pursuant to the CPL, the clerk of a court is responsible for reporting to DCJS that a criminal action terminated in a person's favor. DCJS is sometimes not notified as required. Thus, some records at DCJS remain "open" for an extended period of time. Because DCJS has no authority to complete the records without information being provided to it from the relevant agency, these inaccuracies, in effect, can become a permanent part of an individual's criminal record.

Moreover, where a case has been terminated in a person's favor; the original records may have been destroyed. As a result, people with inaccuracies on their criminal history records are in limbo; they cannot contest inaccurate or incomplete information on their criminal history record if the necessary original records have been purged or are otherwise unavailable or incomplete. This may result in such persons losing the protections they may be entitled to under New York State's sealing laws.

This bill would address these problems by precluding DCJS and OCA from including "disposed case" information in any report of a criminal history search except where the report is produced by DCJS for a qualified law enforcement agency, for a criminal justice purpose, or by DCJS or OCA for research record review or internal record keeping purposes. When the initial arrest was for a class A-1 felony, violent felony or sex crime, such records will not be suppressed, however, because it is not unusual for such serious cases to take longer to resolve.

Budget implications

This bill would not have any budget implications.

Effective date

This bill would become effective 180 days after enactment.