Provides for the application for sealing a record of conviction

Summary of specific provisions

Section one of the bill adds a new section 160.65 to the Criminal Proce- dure Law ("CPL"), setting out the criteria and procedures for sealing a record of conviction. Section two makes conforming changes to Executive Law section 296, to effectuate the bill's nondiscrimination purposes. Section three is the effective date.

New CPL 160.65's provisions include the following:

(Subdivision 1) The application must be sworn to and accompanied by a 95 dollar application fee). An applicant must have served the full sentence, including any supervision component, sex offender registration requirement or order of protection, and must have completed a waiting period which varies depending on the classification and number of prior convictions (subdivision 2; waiting periods set out in paragraphs a to h).

(Subdivision 3) The application is to be made to the sentencing court, and applications may be referred to magistrates, who may grant applica- tions for misdemeanors and non-criminal offenses, and make recommenda- tions to the judge regarding felonies.

(Subdivision 4) An application must be sworn to under penalties of perjury and must include specific information about all of the applicant/petitioner's prior convictions, including any convictions in other states or federal court.

(Subdivision 5) The application must be served on the original prosecut- ing agency on 21 days notice, with an opportunity for the prosecutor to answer 7 days prior to the return date.

(Subdivision 6) For violations (non-criminal offenses), misdemeanors and nonviolent felony convictions, there is a rebuttable presumption that the application will be granted unless sealing will harm public safety or would not serve the interests of justice. For violent felony

convictions, there is a rebuttable presumption that the application will not be granted, unless the applicant establishes multiple factors, including complete rehabilitation, that the crime was an aberration and is not likely to recur.

(Subdivision 7) The court may order a report on the applicant's back- ground and circumstances.

(Subdivision 8), may conduct a hearing as to any issue of fact or law.

(Subdivision 9), and must issue a written decision stating reasons for the decision unless the application is granted without objection.

(Subdivision 18) Either party may appeal.

(Subdivision 10) of new CPL 160.55 governs a sealing order's effective date.

(Subdivision 11) sets out the actions to be taken to seal records pursu- ant to such an order, and also provides for access to sealed records by law enforcement and prosecution agencies and for the conviction to spring back upon a new arrest.

(Subdivision 12) explicitly states that nothing contained in new CPL 160.65 changes the sentencing provisions of the Penal Law.

(Subdivision 13) sets out sanctions and remedies for unauthorized publi- cation of information regarding sealed records.

(Subdivision 14) deals with applications to unseal a previously sealed record.

(Subdivisions 15 and 16) relate to employment; private employers may search government records, but may not ask job applicants if they have been arrested or convicted.

(Subdivision 17) limits re-disclosure by purchasers of criminal records or databases of such records and requires sellers of such records data- bases to develop systems for validating the accuracy of records and to give written notice to purchasers about the limits on re-disclosure.

Justification

New York's public policy of assisting ex-offenders by prohibiting employment discrimination based on criminal history (see Correction Law Article 23-A) is compromised by increasingly easy access to various databases and" other information available over the internet that provide criminal history information about individuals, especially when that information may be incomplete or outdated, and even when it is accurate, may reflect a conviction that occurred long ago and that may hinder employment opportunities for someone who has been a law abiding citizen for many years. Current law does not provide a mechanism for

addressing the employment discrimination problems created by technolog- ical advances. This bill provides such a mechanism.

Many individuals who made mistakes in the past and have led law abiding lives since their convictions have either lost jobs due to the economic downturn, have lost jobs because employers began checking criminal records, or afraid to apply for new and better jobs because they fear they will be asked about criminal records. Job applicants are routinely asked about criminal records and eliminated from consideration for crimes that occurred years, or even decades, ago.

Twenty, or even ten, years ago it was relatively difficult for employers to get criminal record information for job applicants as a routine matter. Over the last ten years, the free flow of information over the Internet, live data feeds, sales of databases, etc. have made it easy for employers to obtain criminal record information. Even applicants for low paying jobs are subject to criminal records questions on appli- cations and/or criminal records checks. It is critical that the Legisla- ture act now to establish a mechanism for sealing records before so much information is so available that it becomes impossible to seal records in a meaningful way.

Prior legislative history

New bill.

Fiscal implications

To be determined, but note that any workload driven costs should be offset by the $95 application fee, and it is possible that net revenue could be generated by this bill.

Effective date

This act shall take effect 60 days after having become a law.