Seal Petty Offense Records

There is an unusual and unintended anomaly in how executive agencies apply the sealing provisions of CPL 160.55 to convictions where the original arrest charge is a petty offense (e.g., a traffic infraction or violation offense), as distinguished from cases where the original arrest charge is a misdemeanor or felony but later ends only in a conviction for a petty offense. To understand how this anomaly has aris- en, it is necessary to understand the history of the statute, which, in relevant part, currently provides that

"(u)pon the termination of a criminal action or proceeding against a person by the conviction of such person of a traffic infraction or a violation (other than loitering or DWAI, unless the court decides to not seal in the interest of justice) . . . all official records and papers relating to the arrest or prosecution . . . on file with the division of criminal justice services, police agency, or prosecutor's office shall be sealed and not made available to any person or public or private agency" (CPL 160.55(1)).

Despite this unequivocal language, most law enforcement agencies, including the Division of Criminal Justice Services and local police departments, distinguish between cases where an accused is arrested on a top charge that is a violation or traffic infraction and those where the top charge of a misdemeanor or felony offense, but the accused is later convicted only of a traffic infraction or violation. In the latter, all agree that the case should be sealed; in the former, law enforcement records consistently are not sealed.

The reasons for this result are found in the history of the statute as reflected in a decades-old, but never updated, McKinney's commentary on the topic. CPL 160.55 was enacted in 1980 and was originally designed to seal non-criminal dispositions that appeared on an accused's criminal history report (the "rap sheet"). At the time, and still today, a conviction for a noncriminal offense could only be reflected on a DCJS rap sheet if the accused was initially arrested on a fingerprintable offense (see CPL 160.10(1)). Where an accused is arrested for a non- printable offense, DCJS does not reflect the arrest and thus the case, regardless of disposition, is not reflected on a defendant's rap sheet.

Based on the original reach of the statute, it was understood that seal- ing convictions for a petty offense at DCJS involved only fingerprinta- ble arrests. The practice commentary written at the time of the original statute accurately reflects this state of the law:

"This section, added to the CPL in 1980, complements the provisions of the preceding section (160.50), which apply where the entire criminal action or proceeding is terminated in the defendant's favor. The situ- ation covered here is where defendant, having been arrested or charged with a printable offense (CPL § 160.10), ultimately is convicted of a petty offense except the three specifically excluded." (emphasis added)

The statute operated, as reflected in the commentary, until 1994, when the Legislature expanded CPL 160.55 to include sealing not only petty offenses that would be reflected on an accused's rap sheet, but also records of law enforcement, including police and DA records (L. 1994, c. 169 § 81). Obviously, law enforcement agencies possess all arrest records, regardless of whether a defendant is charged with a finger- printable offense. Thus, the distinction that was critical when the statute was first enacted - whether DCJS had any record to seal - became irrelevant to law enforcement records. At that point, a glaring incon- sistency arose that made the sealing of petty offenses at the local law enforcement level dependent on whether the arrest carried a top-count charge of a crime. Ironically, the current application of the statute results in more favorable treatment for those accused of misdemeanors and felonies over those who are initially accused only of a petty offense, an outcome the Legislature surely could not have intended.

This measure amends CPL 160.55(1) by adding language to clarify that the statute's scope is gauged solely on the conviction charges as reflected in the final disposition of the case; the arrest charge is irrelevant. The measure retains the prefatory language that the section applies to a "criminal action or proceeding" because petty offense charges, although not criminal, are still part of a criminal action or proceeding when adjudicated in the Unified Court System (see CPL 1.20(16)).

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

Legislative history

2017-2018 (Sen Lanza) (Committed to Rules)