Relates to the sealing of certain convictions

Section one of Part A of the bill adds a new CPL 160.59 to authorize a court to seal up to two but not more than one eligible felony convictions for purposes of a civil background check. A conviction would not be eligible for sealing under this new provision if the defendant stands convicted of a sex offense, a child pornography offense, a homicide offense, a violent felony offense, a class A felony; previously had the maximum number of convictions sealed or conditionally sealed; is required to register as a sex offender or is currently charged with a crime. A conviction would not be eligible for sealing until at least 10 years have passed since the time of conviction, excluding any periods of incarceration. Such sealed records would still be available to law enforcement, prosecutors, a firearms licensing officer, or a prospective employer of a peace or police officer.

Section two of Part A of the bill amends the Executive Law § 296(16) to make the use of a conviction sealed pursuant to CPL 160.59 in connection with employment or licensing an unlawful discriminatory act.

Section three of Part A of the bill provides for an effective date of 180 days following enactment.

Section one of Part B of the bill adds a new section 845-c to the Executive Law to prohibit DCJS from including undisposed case information on criminal history records (i.e., rapsheets) where the record is produced for a non-law enforcement or non-criminal justice purpose (e.g. a pre-employment criminal history record search). The bill defines an "undisposed case" as: (i) a criminal action or proceeding or an arrest incident that appears on an individual's criminal history record for which no final disposition or imposition of sentence has been recorded; (ii) no entry has been made on the DCJS record on that criminal action for a period of at least five years; and (iii) for which no warrant is outstanding.

Section two of Part B of the bill adds new paragraph (s) to subdivision two of section 212 of the Judiciary Law to establish a corresponding requirement and stipulations for OCA.

Section three of Part B of the bill provides for an effective date of 180 days following enactment.

Section one of Part C of the bill authorizes DCJS to direct that records of criminal proceedings terminated in favor of the accused or by conviction for a non-criminal offense between September 1, 1976 and November 1, 1991 be sealed in the manner set forth in CPL 160.50 and 160.55, respectively.

Section two of Part C of the bill provides for an effective date of 180 days following enactment.

Section two of the bill is a severability clause.

Section three of the bill provides for an immediate effective date, provided, however, that Parts A though C of the bill are effective as stated therein.

Existing law

Currently convictions and undisposed cases are provided to individuals and entities authorized to conduct a fingerprint based background check for employment and licensing. Criminal proceedings terminated in favor of the accused or by conviction for a non-criminal offense between September 1, 1976 and November 1, 1991 are not automatically sealed.

Statement in support

A number of laws authorize prospective employers to obtain a criminal history background check. Many individuals seeking employment will be barred from certain positions simply because they committed a low-level offense in their past. While State law prohibits employment discrimination due to a prior criminal conviction unless there is a direct relationship between the crime of conviction and the employment sought or a threat to the safety of a specific individual or the public, it is often difficult for a person to prove that he or she was passed over for employment due to a past conviction instead of some other non-discriminatory reason. Allowing a person to apply for the sealing of up to two low-level offenses will assist in the employment efforts of a person who has turned their life around and has demonstrated that over a significant period of time. The records sealed under this section would be sealed only in conjunction with a civil background check. Police, courts and prosecutors would continue to be provided with the entire criminal history, including records sealed under this bill.

Additionally, although current law provides for the sealing of certain criminal records, in some cases administrative breakdowns occur, leaving information about cases that have 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 maintained by DCJS. Attempts to correct these errors and eliminate such case references often prove unsuccessful because no information about the cases is available, either because the parties involved no longer have records, because 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 effectively 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.

In situations where a case has been terminated in a person's favor, the original records may have been destroyed. As a result, persons 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 and the Federal and New York State Fair Credit Reporting Acts.

This bill would require DCJS and OCA to suppress "undisposed case" information, as defined by the bill, in any report of a criminal history search conducted by them and provided for employment or licensing reasons. Where the report is produced by DCJS for a "qualified agency," or a federal law enforcement agency, for a criminal justice purpose, or by DCJS or OCA for research, record review, or internal record keeping purposes, those undisposed cases will remain visible. The District Attorney with jurisdiction over the case will be notified that the case is considered "undisposed" and will have an opportunity to provide DCJS with information showing that a prosecution is still pending. This provision will assist individuals in obtaining gainful employment by suppressing possible inaccurate information contained on a rap sheet while still allowing such information to be released to law enforcement, courts, and prosecutors.

An additional impediment to employment is faced by persons who were arrested and whose cases were either terminated in their favor or resulted in a non-criminal disposition. Starting in 1976, the Criminal Procedure Law (CPL) authorized a court to seal such cases. However, prior to November 1, 1991, it was necessary for the defendant to make a motion to request sealing. Many defendants neglected to do so. In 1991, the Legislature amended the CPL to authorize automatic sealing by DCJS upon the receipt of a disposition in the defendant's favor or a conviction for a violation or an infraction. However, this amendment was not made retroactive. As a result, those pre-1991 defendants with an arrest or an unsealed event that result in termination in their favor, may face difficulties in obtaining employment because an employer has learned of that event. Making a motion to seal a case that is several decades old can be burdensome. This bill would allow DCJS to automatically seal these old cases, putting such defendant on an equal footing with current persons who are acquitted or have their cases dismissed.

This bill would effectively address current systemic deficiencies and would help to ensure the accuracy and integrity of the criminal history record keeping system in New York State. In addition, it would permit persons who have made up to two low-level mistakes the ability to have their record sealed for civil inquiries. Altogether this bill would enhance the economy of the State by helping citizens to find and maintain employment free from the impediments imposed by faulty data or one mistake which led to a low level conviction. BUDGET IMPLICATIONS :

None.

Effective date

This act shall take effect immediately, provided, however, that the applicable effective date of Parts A through C of this act shall be as specifically set forth in the last section of such Parts.