Relates to the sealing and expungement of records in persons in need of supervision cases in family court

When Article 3 of the Family Court Act, the juvenile delinquency procedure statute, was enacted over three decades ago (L. 1982, c. 920), applicable provisions of the Criminal Procedure Law (CPL) deemed essential for due process and fairness were incorporated into its text. However, similar provisions were not introduced in the remaining provisions of Article 7 of the Family Court Act, which from that point onward applied only to Persons in Need of Supervision (PINS) cases. One of the most glaring omissions is the provision regarding confidentiality of records. Article 3, modeled after CPL 160.50, has afforded youth who are accused of juvenile delinquency, like adults accused of crimes, far more protections than those who are the subjects of PINS proceedings.

Professor Merril Sobie noted this disparity in his Practice Commentaries to Family Court Act § 751:

(Family Court Act) Article 7, unlike Article 3 (the juvenile delinquency statute), does not provide for the automatic sealing of records when a petition is dismissed or withdrawn (see Section 375.1). Hence, the records remain relatively open, subject only to the generalized, imprecise (Family Court Act) Section 166 stipulation that "(t)he records of any proceeding in the family court shall not be open to indiscriminate public inspection". Ironically, children who are falsely accused of non-criminal "status offense" conduct are afforded less protection than youths who are accused of engaging in criminal activities.

We submit this measure to correct that imbalance. First, closely tracking section 375.1 of the Family Court Act and CPL 160.50, the measure would amend section 783 of the Family Court Act to provide that court records in actions terminated favorably for the accused - that is, cases that had been adjusted (diverted without petition), withdrawn or dismissed -- would automatically be sealed. Notices would be required to be sent to probation departments, designated lead agencies for PINS diversion and, if presentment or law enforcement agencies have been involved, to such agencies, directing them to seal their records as well. The juveniles' attorneys would be required to be notified that the directives had been sent. Youth whose cases had been favorably terminated prior to the effective date of the statute would be permitted to move for sealing upon twenty days' notice.

Second, in cases in which a juvenile has been adjudicated as a PINS, the juvenile would be permitted to make a motion for sealing of the record in the interests of justice. If granted, notices would likewise be sent to the agencies involved in the case to seal their records. As in section 375.3 of the Family Court Act, Family Court would retain its inherent authority to expunge, rather than simply seal, its

records. See Matter of Dorothy D. v. New York City Probation Department, 49 N.Y.2d 212 (1980)(juvenile delinquency); Matter of Richard S. v. City of New York, 32 N.Y.2d 592 (1973)(PINS); Matter of Daniel PP., 224 A.D.2d 906 (3d Dept., 1996)(PINS). As the Court of Appeals held in Matter of Dorothy D., supra:

That the very existence of such records, despite provisions for confidentiality, may constitute a substantial impediment to entry into institutions of higher learning, government or private employment, the armed services, or the professions, cannot be seriously questioned. For this reason it would be antithetical to the purpose of the Family Court Act to maintain records which would not benefit society and would result in bringing unwarranted discrimination to a child's future. (Matter of Richard S. v. City of New York, 32 N.Y.2d 592, 595-596, 347 N.Y.S.2d 54, 56, 300 N.E.2d 426, 427).

Many states, in fact, include expungement, not simply sealing, as their mechanism for ensuring the confidentiality of juvenile records. See, e.g., West's Colorado Revised Statutes § 19-1-306; Illinois Compiled Statutes § 405/5-915 (juvenile delinquency) and § 405/1-9 (juvenile court records other than juvenile delinquency); Ohio Revised Code §§ 2151.355, 2151.356, 2151.358 (juvenile delinquency and "unruly children" records); Revised Code of Washington § 13.50.050; Delaware Code §§ 1014-1018; North Carolina General Statutes §§ 7B3200, 3201 (juvenile delinquency and "undisciplined" children); Arizona Revised Statutes § 13-921; Arkansas Code § 9-27-309(b)(1)(A), (b)(2); West's California Code, Div. 2, C. 2, Art. 22, § 826(a)); Connecticut General Statutes §§ 46b-133a,46b-146; West's Florida Statutes § 943.0582; Minnesota Statutes § 260B.235(9)); Pennsylvania Consolidated Statutes § 9123); West's Code of Virginia § 16-1-306).

Finally, recognizing that PINS behavior consists of conduct that would not be criminal if committed by adults, sections 783 and 784 of the Family Court Act would be amended to preclude use of PINS records in other courts. The language in section 783, permitting utilization of such records in criminal sentencing proceedings, as well as the reference in section 784 to criminal courts taking action regarding police records, are vestiges of the days when juvenile delinquency and PINS proceedings were both covered by Article 7 of the Family Court Act and are more appropriately applied solely to juvenile delinquency records. Indeed, these provisions have been incorporated into Article 3. See Family Court Act §§ 381.2, 381.3(2). This measure appropriately deletes these provisions from Family Court Act Article 7.

The need to keep records of juvenile misbehavior, both criminal and noncriminal in nature, confidential has long been a central feature of the juvenile justice system. As former Chief Justice Rehnquist noted, in his concurring opinion in Smith v. Daily Mail, 443 U.S. 97, 107 (1979):

It is a hallmark of our juvenile justice system in the United States that, virtually from its inception at the end of the last century, its proceedings have been conducted outside of the public's full gaze and the youths brought before our juvenile courts have been shielded from publicity. See H. Lou, Juvenile Courts in the United States 131-133 (1927); Geis, Publicity and juvenile Court Proceedings, 30 Rocky Mt.L.Rev. 101, 102, 116 (1958). This insistence on confidentiality is

born of a tender concern for the welfare of the child, to hide his youthful errors and "bury them in the graveyard of the forgotten past.'" In re Gault, 387 U. S. 1, 387 U. S. 24-25 (1967).

This proposal recognizes that non-criminal conduct, the gravamen of PINS cases, no less than the criminal conduct underlying juvenile delinquency proceedings, requires the protections that have long been deemed essential to fulfilling the goals of the juvenile justice system.

This measure, which would have no fiscal impact upon the State, would take effect 90 days after it shall have become a law.

Legislative History: Senate 6814 (Senator Felder) (advanced to 3rd Rdg.) Assembly 9916 (Rules-request of M. of A. Lupardo) (reported referred to Codes)