Relates to sealing court records involving convictions for certain petty offenses

This measure would add a new section 160.57 to the Criminal Procedure Law ("CPL") to authorize the sealing of the court records relating to convictions for petty offenses.

Currently, CPL section 160.55 authorizes the sealing of records relating to the conviction for a non-criminal petty offense such as a traffic infraction or violation, except for the petty offenses of loitering (Penal Law .240.35(3)), loitering for the purpose of engaging in prostitution (Penal Law §240.37(2)), and driving while ability impaired (Vehicle and Traffic Law § 1192(1)), which are expressly exempted from the scope of this provision. The records that are sealed under this provision of law are the official records and papers relating to the arrest and prosecution of non-criminal petty offenses maintained by the police department, the District Attorney's Office, and fingerprints on file with the Division of Criminal Justice Services. The official records and papers of such cases on file with the court, however, are not sealed.

The availability to the public of the court records of a conviction for a petty offense can have an adverse collateral consequence for the defendant, who, having pled guilty to that petty offense as part of a plea bargain that avoids a conviction for a crime and who is otherwise living a law-abiding life, finds that he or she cannot secure employment or purchase a home because of the petty offense conviction.

The sealing procedure authorized by this measure is as follows: A person who has been convicted of a petty offense must wait one year from the date of sentence before he or she can apply to the court, with notice to the District Attorney, for an order sealing his or her court record. In connection with the application, the District Attorney may consent to the sealing or oppose it, whereupon the court must hold a summary hearing to determine whether the application should be granted. The District Attorney need not wait for the defendant's application but may apply for an order keeping the court record unsealed. In the absence of an application by the defendant or the District Attorney, the court records are automatically sealed 36 months from the date of sentence, but only as to those defendants who are sentenced after the effective date of this measure. Persons convicted of a petty offense prior to such effective date must apply to the court in order to obtain an order sealing the record of their conviction.

The procedure authorized by this measure seeks to address the public safety concern of the prosecutor that a particular defendant should not have the benefit of a sealing, and the operational concerns of

the courts facing the prospect of having to process numerous sealing applications. First, unlike the automatic sealing requirements currently in place under the CPL, this measure would allow the sealing procedure to proceed unless the District Attorney's Office objects and has an opportunity to be heard. Second, the 12- and 36- month deadlines are intended to create cooling-off periods that would prevent a deluge of sealing applications to the local criminal court that would otherwise be made were applications to seal permitted at the time of sentence. The 12and 36- month periods also would provide adequate time for the District Attorney to determine whether the defendant has fully complied with the terms of his or her sentence.

Like section 160.55, this measure would permit the sealed records to be unsealed and made available to a defined class of persons, specifically, the accused or his agent; the prosecutor in a proceeding involving the sale or possession of marijuana wherein the accused has moved to seal court records in connection with an application for adjournment in contemplation of a dismissal of the proceeding; a law enforcement agency upon a showing that justice requires the disclosure of the records; the licensing agency where the accused has applied for a license to possess a gun; a state parole or probation agency if the records concern an arrest while the accused was on parole or serving probation; a prospective employer of a police or peace officer; and police, prosecution, probation and correction agencies upon the arrest of the accused if the sealed records were for a conviction for harassment in the second degree committed against a member of the same family or household as defendant.

CPL 160.60 provides that, where a record of a criminal action or proceeding has been sealed, the "arrest or prosecution shall not operate as a disqualification of any person so accused to pursue or engage in any lawful activity" and further authorizes the person whose record of conviction has been sealed to withhold information "pertaining to the arrest or prosecution." The operation of that provision however, is limited to court records sealed under CPL 160.50, which applies to a criminal action or proceeding that has been terminated in favor of the defendant. In order to effectuate the purpose of this measure and make the privileges afforded by section 160.60 available to persons whose record of conviction for a petty offense has been sealed, this measure also amends section 160.60 so as to make that provision expressly applicable to these convictions.

This measure, which would have no fiscal impact upon the State, would take effect on the first day of November next succeeding the date on which it shall have become a law.

Legislative history

None. New proposal.