June 9, 2023
Detailed Summary of Pending Legislation:
The legislation would seal state conviction records of individuals from public access, given certain conditions are met. This is a detailed bill. As such, we want to provide a roadmap since it is being debated and is on the ‘active list’ in both houses today (Friday). Passage seems likely but anything can happen. We will provide a more detailed update post session on the status of legislation. The full bill language is attached.
The bill does take into account the need for certain professions and entities to be able to see the full record of a person including information that is automatically to be sealed under this bill. There are a large number of exemptions which are detailed in the exemptions section below.
Some exemptions include:
· Individuals or entities that are required by state law, federal law or regulation, or a local law in effect one year prior to enactment, to
request and receive a fingerprint-based check of criminal history information.
· Individuals or entities authorized by state law, federal law or regulation, or a local law in effect one year prior to enactment that may request and receive a fingerprint-based check of criminal history information. Such regulations shall include entities authorized to request and receive such information in relation to the individual’s fitness to have responsibility for the safety and wellbeing of children or adolescents, elderly individuals, individuals with disabilities, or otherwise vulnerable populations.
· The state education department for the purposes of investigating professional misconduct and issuing licenses. Note while a large number of professions are included and are detailed below. The bill did not include Pharmacy Technicians in the exemption.
· Transportation network companies that are required or authorized by state law to request a criminal history are also exempt.
Requirement For Record Sealing
Convictions for certain traffic infractions or a crime defined in the State, will be automatically sealed given these conditions are met:
1. Convictions for operating a motor vehicle while under the influence of alcohol or drugs will be sealed after 3 years.
2. For a criminal misdemeanor conviction: 3 years have passed since incarceration or imposition of sentence if no incarceration was sentenced.
3. For a criminal felony conviction: 8 years have passed since incarceration or imposition of sentence if no incarceration was sentenced – a defendant’s detention for allegedly violating parole or post-release supervision will not interfere with the time calculation unless the defendant is reincarcerated.
4. Requirements for either class of offense:
a. The defendant does not have a subsequent criminal charge pending in NYS
b. The defendant is not under the supervision of a probation or parole department for the conviction eligible for sealing
c. The conviction is not for a sex offense or sexually violent offense
d. The conviction is not for a class A felony
e. The defendant is a natural person
f. The defendant doesn’t have a subsequent felony charge pending in another jurisdiction in the last 8 years that is not related to reproductive or gender-affirming care or the possession of cannabis, which would not be a felony in NYS
g. If the period of time for sealing has been satisfied, but the conviction remains ineligible, the Office of Court Administration will check for eligibility no less than quarterly. If/when it is time, the conviction will be sealed given all other conditions are satisfied.
The records of convictions sealed cannot be accessed or made available to any person or public or private agency or used by any state agency except for the following:
1) The defendant and such defendant’s attorney
2) Any court defense counsel or prosecutor for the purposes of a pending criminal proceeding etc.
3) Qualified agencies, when acting within the scope of their law enforcement duties. Qualified agencies are: courts in the unified court system, the administrative board of the judicial conference, probation departments, sheriffs’ offices, district attorneys’ offices, the state department of corrections and community supervision, the department of correction of any municipality, the financial frauds and consumer protection unit of the state department of financial services, the office of professional medical conduct of the state department of health for the purposes of professional medical conduct investigations, the child protective services unit of a local social services district when conducting an investigation, the office of Medicaid inspector general, the temporary state commission of investigation, police forces and Departments having responsibility for enforcement of the general criminal laws of the state, the Onondaga County Center for Forensic Sciences Laboratory when acting within the scope of its law enforcement duties and the division of forensic services of the Nassau county medical examiner’s office when acting within the scope of its law enforcement duties.
4) The court, prosecutor, and defense counsel if the defendant becomes a witness in a criminal proceeding, or the claimant and respondent if the defendant becomes a witness in a civil proceeding.
5) When an individual is a defendant in a criminal action and the sealed records of conviction of a third-party are integral to their defense. The applicant must
demonstrate to the satisfaction of the court that the records will be used for the
purpose of this subparagraph.
6) Individuals or entities that are required by state law, federal law or regulation, or a local law in effect one year prior to enactment, to request and receive a
fingerprint-based check of criminal history information. Nothing herein shall
prohibit the commissioner of education or the office of school personnel review
and accountability from receiving or using convictions sealed pursuant to education law.
7) Individuals or entities authorized by state law, federal law or regulation, or a local law in effect one year prior to enactment that may request and receive a fingerprint-based check of criminal history information. Such regulations shall include entities authorized to request and receive such information in relation to the individual’s fitness to have responsibility for the safety and wellbeing of children or adolescents, elderly individuals, individuals with disabilities, or otherwise vulnerable populations.
8) Any prospective employer of a police officer or peace officer as those in relation to an
application for employment as a police officer, provided, however, that every person
who is an applicant shall be furnished with a copy of all records obtained under this
paragraph and afforded an opportunity to make an explanation thereto;
9) Any federal, state, or local officer or agency with responsibility for the issuance of
licenses to possess a firearm, rifle, or shotgun or with responsibility for conducting
background checks before transfer or sale of a firearm or explosive when the officer
or agency is acting pursuant to such responsibility
10) For the purposes of civilian investigation or evaluation of a civilian complaint or civil
action concerning law enforcement or prosecution actions, upon ex parte motion in
any superior court, or in any district court, city court or the criminal court of the city of
New York provided that such court sealed the record; the applicant must demonstrate
To the satisfaction of the court that the records will be used for the required purposes
11) For information provided to an individual or entity for bona fide research purposes
provided all identifying information is removed.
12) when an individual seeks to avail themselves of a public program or benefit, including but not limited to an immigration benefit, for which the sealed records of conviction of a third party are otherwise authorized by law or legal process to be disclosed in furtherance of their application for such program or benefit.
13) For the purpose of collection of restitution, reparation, fines, surcharges, or fees imposed.
14) Transportation network companies that are required or authorized by state law to request criminal history information pursuant to vehicle and traffic law, which states: A TNC shall conduct, or have a third party conduct, a criminal history background check using a lawful method approved by the department for persons applying to drive for such company. A TNC shall update the criminal history background check yearly during the period in which the person is authorized to drive for the company, however, the commissioner may require, pursuant to regulation, more frequent criminal history background checks.
15) The state education department for the purposes of investigating professional misconduct defined as being convicted of committing an act constituting a crime under New York State law, consideration of restoration of a professional license
consideration, determination for issuing a license to practice a profession or issuingcertificates and privileges for which prior licensure is required as appropriate.
For the following professions:
· Physician Assistants
· Dentistry, Dental Hygiene, Registered Dental Assistance
· Licensed Perfusionists
· Veterinary Medicine and Animal Health Technology
· Physical Therapy and Physical Therapy Assistants
· Licensed Pharmacists *Does not include section A Pharmacy Technicians*
· Registered Professional Nurse, Licensed Professional Nurse, Nurse Practitioner, Clinical Nurse Specialist
· Ophthalmic Dispensing
· Engineering, Land Surveying, and Geology
· Public Accountancy
· Social Work
· Massage Therapy
· Occupational Therapy
· Dieticians and Nutritionists)
· Speech Language Pathologists and Audiologists
· Athletic Trainers
· Mental Health Practitioners
· Respiratory Therapists and Respiratory Therapy Technicians
· Behavior Analysts and Behavior Analyst Assistants
16) The Office of Mental Health and OPWDD, where such agencies are statutorily authorized to receive such information, provided further, that such information may also be made available for case review under section 10.05 of the mental hygiene law, as well as to providers licensed, funded, designated, certified or otherwise authorized by the office of mental health or the office for people with developmental disabilities, where such information is included in the clinical record of any person under the care of or receiving services from such provider or program.
Further Detail On Instances of Record Sealing
Where sealing has not taken place, including if court records cannot be located or have been destroyed, and a valid form is submitted by the defendant or their attorney, the conviction will be sealed within 30 days of receipt. Data needed by the Office of Court Administration for sealing convictions will be provided by the Department of Corrections and Community Supervision. Such data will include but not be limited to: the date or dates of release from state incarceration of individuals who have a sentence of incarceration for a felony conviction and the date(s) of initial parole or post-release supervision and corresponding date(s) of discharge. Chief administrative officers of local correctional facilities will provide the Office of Court Administration with the data necessary to determine appropriate records to be sealed, included but not limited to the date(s) of release of individuals who have satisfied a definite sentence of imprisonment.
When records are sealed, the Office of Court Administration will notify the Division of Criminal Justice Services (DCJS), the Court of Conviction, county clerks and the heads of all appropriate police and sheriff departments, prosecutors’ offices, and law enforcement agencies that the conviction is sealed. Every photograph, photographic plates or proof, palmprints, fingerprints, retina scans, and duplicates, reproductions, and copies taken of the defendant will be sealed for the conviction that is sealed. Digital fingerprints on file with DCJS will be exempt. Records, including ones that are digitized, will have an obvious indication of being sealed at the beginning of the record. All official record and paper, and duplicates and copies, including court judgements and orders, exempting published court decisions, opinions, records, or briefs on appeal, related to the sealed conviction will also have an obvious indication of being sealed at the beginning of the record or beginning of the digitized file. Entities listed at the beginning of the paragraph will not have access unless authorized by this law. However, nothing in this section will interfere with the laws, rules and regulations requiring DCJS administer and maintain criminal history records. The sealing or destruction of DNA information maintained in the NYS DNA database will not be required. Sealing or destruction of information will not be required of the Department of Motor Vehicles and nothing in this section will contravene the vehicle and traffic law, the federal driver’s privacy protection act, the REAL ID Act of 2005, section 7209 of the Intelligence Reform and Terrorism Prevention Act of 1986, the Commercial Motor Vehicle Safety Act of 1986, the Motor Carrier Safety Improvement Act of 1999, or regulations promulgated pursuant to any such chapter or act.
DCJS will be able to disclose a sealed conviction to entities required by federal law to consider sealed convictions. Entities must certify that they are required to do so for the purposes of employment, licensing, or clearance. To the extent permitted by federal law, a record sealed may not be considered a conviction that would prohibit the employment, licensing, or clearance of the defendant. These entities are not prohibited from inquiring into convictions sealed or considering an applicant’s criminal history for purposes of employment, licensing, or clearance.
In any civil action, official records from convictions that are sealed cannot be introduced as evidence of negligence against a person or entity that provided employment, contract labor or services, volunteer work, licensing, tenancy, a home purchase, mortgage, education, a loan, or insurance if such record was not provided to the person or entity by or on behalf of a government entity in accordance with this legislation. A person or entity described in this legislation, acting reasonably and in good faith, may not have a duty to investigate the fact of a prior conviction that has been sealed.
Defendants will not be required or allowed to waive eligibility for sealing as part of a plea of guilty, sentence or any agreement related to a conviction for a violation of the laws of NYS. Sealing is without prejudice to a defendant or their attorney and nothing in this legislation will be interpreted to diminish any rights or remedies available to the defendant. The Office of the Court Administration will work diligently to seal all conviction records eligible for sealing entered on or before the effective date of this legislation and shall ensure completion within 3 years of the effective date. Sealing of a conviction before the expiration or termination of a sentence of incarceration, parole, probation, or post-release supervision for such conviction will not be permitted.
Active orders of protection will not be affected or invalidated in relation to a conviction sealed. Restitution, reparation, fines, surcharges, or fees imposed for a conviction sealed will be required to be paid. DCJS will not provide criminal history information that is sealed to any entity other than those authorized by such section to receive such information.
A person with a sealed conviction may bring a cause of action for damages against a party who, without the individual’s consent, discloses the sealed conviction where:
a. The respondent owed such person a duty of care
b. The respondent knowingly and willfully breached such duty
c. The disclosure caused injury to the person
d. The respondent’s breach of duty was a substantial factor in the events that caused the injury suffered by such person
A party owes duty of care to a person who has had a conviction sealed when the party is under an obligation to seal information, records, documents, or papers related to such conviction, or when the party obtains access to records of such conviction for a specific purpose (pursuant to sections in the bill).
It will be unlawful discrimination for any person, agency, bureau, corporation, or association, including the State and any political subdivision, to make an inquiry about or act adversely to the individual involved, any arrest or criminal accusation of such individual not then involved, any arrest or criminal accusation of the individual not then pending against them which was followed by a termination of that criminal action or proceeding in favor of such individual, or by an order adjourning the criminal action in contemplation of dismissal, or by a conviction sealed by this legislation, except if accessed as allowed described in this bill.
Effective one year after it becomes law.