Remove Old Unresolved Cases

Section 2 of the bill establishes a corresponding requirement for OCA. It adds a new paragraph (x) to subdivision two of section 212 of the Judiciary Law to require OCA to refrain from reporting undisposed cases on criminal history reports it produces except where the report is prepared for internal recordkeeping or bona fide research purposes.

Section 3 of the bill provides that the act shall take effect 180 days after it shall have become a law, and further provides that, prior to such effective date, DCJS in consultation with OCA shall undertake meas- ures to update its criminal history records with respect to cases that have no final disposition reported.

Existing law

DCJS is the state repository for criminal history records and is permit- ted or required under law in certain circumstances to search its records and produce a report on an individual's criminal history record (i.e., a "rapsheet"). Similarly, OCA is authorized under law to search its crimi- nal court case records and produce a criminal history record report on the individual whose record is searched. Under Criminal Procedure Law 160.50 records pertaining to criminal actions that have been terminated in favor of the accused are to be sealed and, subject to certain exceptions, are not to be released by DCJS or OCA. These include cases that, following the transmission of arrest fingerprints to DCJS, prose- cutors elect not to prosecute (CPL § 160.5(3) (i)) and arrests that the police elect not to pursue (CPL § 160.50(3) (j)).

Justification

Although the law provides for the sealing of certain records, in some cases, administrative failures occur, leaving information about cases that have ended in a person's favor, or have been filed in court but never brought to any final disposition, unsealed on the person's perma- nent criminal history record maintained by DCJS. Attempts to correct these errors and eliminate undisposed case references often prove unsuc- cessful because no information about the cases can be found, either because the parties involved have destroyed their 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. Examples of this include cases where preliminary arrest information but no other information, not even a docket number, appears on the criminal history record. The absence of a docket number on a rap sheet where an arrest is indicated may signify that, after the submission of arrest fingerprints to DCJS, the prosecutor has elected not to prosecute the case, or the police have elected not to pursue the arrest. Other examples include cases where a court docket number appears but no further action on the case is reflected. In cases actively moving through the court system, actions taken in the case arraignments, transfers, removals, indict- ments, bench warrants - usually appear on the person's criminal history record. When an arrest incident appears or a case has been docketed but no action has been taken for a period of five years, and no warrant has been issued, the case should likely have either been dismissed (as stat- utory speedy trial requirements would dictate that trial or some other action take place within that time) or otherwise disposed of.

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 or were terminated in a person's favor. However, the sealing laws are only effective if the various entities in the criminal justice system effectively communicate with each other.

According to the Criminal Procedural Law, the arresting agency, the district attorney, the cleric of the court, and OCA are all responsible for reporting to DCJS that certain criminal actions ended in a person's favor. Administrative failures do occur, however, and sometimes these agencies fail to update DC3S as required. Since there is no current system for ensuring that agencies update DOS, many records at DCJS remain inaccurate for an extended period of time without anyone's know- ledge. As DOS cannot currently act to correct or complete the records without information from the relevant agency, these inaccuracies, in effect, become permanent once enough time has passed for the criminal justice agency involved to be able to destroy the original record according to its own record retention schedule. In situations where the case has been terminated in a person's favor, the original record may be destroyed after only six years by the courts and OCA. Other agencies, including the police and the District Attorneys' Offices, have their own record retention schedules. As a result, people with permanent inaccura- cies on their rap sheet are in limbo: they cannot contest inaccurate or incomplete information on their rap sheet or criminal history record if the necessary correctives (the original records) have been purged or are otherwise unavailable or incomplete. Such people also lose the protections they may be entitled to under New York State sealing laws and the Federal and New York State Fair Credit Reporting Acts. The fail- ure in communication among the various criminal justice agencies has

caused countless individuals to lose employment, benefits and housing opportunities.

To remedy the problem, this measure would prohibit DCJS and OCA from including "undisposed case" information, as defined by the bill, in any report of a criminal history search conducted by the agency except where the report is produced by DC35 for a "qualified agency" (or a federal or state law enforcement agency) for a criminal justice purpose, or by DC35 or OCA for a bona fide research or internal recordkeeping purpose. In so doing, the bill will effectively address the administrative failures described above and will help many New Yorkers lead productive, law-bid- ing lives.

Legislative history

A.8222 was reported and referred to rules in 2009 and was referred to codes in 2010. A.6471a amended and referred to codes in 2011 and referred to codes in 2012. A.3381 referred to codes in 2013 and 2014.

Fiscal implications

To be determined.

Effective date

This act shall take effect on the one hundred eightieth day after it shall have become a law and shall apply to searches of criminal history records conducted on or after such date; provided, however, that prior to such effective date; provided, however, that prior to such effective date the division of criminal justice services, in consultation with the state administrator of the unified court system as well as any other public or private agency, shall undertake such measures as may be neces- sary and appropriate to update its criminal history records with respect to criminal cases and arrest incidents for which no final disposition has to be reported.