UPDATE: Governor Paterson Vetoes New Legislation That Would Have Criminalized the Release of Sealed Court Records

Posted By Galluzzo & Arnone LLP || 3-Sep-2010

UPDATE: Governor Paterson Vetoes New Legislation That Would Have Criminalized the Release of Sealed Court Records. Governor Paterson is now considering a bill that has soared through the New York legislature designed to punish those who intentionally release the contents of a sealed court record. When a criminal matter terminates in an accused’s favor, the records are sealed by operation of law pursuant to Criminal Procedure Law section 160.55, reprinted in its entirety below:

	§ 160.55 Order upon termination of criminal action by conviction for
	 noncriminal offense; entry of waiver; administrative findings. 1. Upon
	 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 a violation of loitering as described in paragraph (d) or (e)
	 of subdivision one of section 160.10 of this chapter or the violation
	 of operating a motor vehicle while ability impaired as described in subdivision
	 one of section eleven hundred ninety-two of the vehicle and traffic law,
	 unless the district attorney upon motion with not less than five days
	 notice to such person or his or her attorney demonstrates to the satisfaction
	 of the court that the interests of justice require otherwise, or the court
	 on its own motion with not less than five days notice to such person or
	 his or her attorney determines that the interests of justice require otherwise
	 and states the reasons for such determination on the record, the clerk
	 of the court wherein such criminal action or proceeding was terminated
	 shall immediately notify the commissioner of the division of criminal
	 justice services and the heads of all appropriate police departments and
	 other law enforcement agencies that the action has been terminated by
	 such conviction. Upon receipt of notification of such termination: (a)
	 every photograph of such person and photographic plate or proof, and all
	 palmprints and fingerprints taken or made of such person pursuant to the
	 provisions of this article in regard to the action or proceeding terminated,
	 and all duplicates and copies thereof, except a digital fingerprint image
	 where authorized pursuant to paragraph (e) of this subdivision, except
	 for the palmprints and fingerprints concerning a disposition of harassment
	 in the second degree as defined in section 240.26 of the penal law, committed
	 against a member of the same family or household as the defendant, as
	 defined in subdivision one of section 530.11 of this chapter, and determined
	 pursuant to subdivision eight-a of section 170.10 of this title, shall
	 forthwith be, at the discretion of the recipient agency, either destroyed
	 or returned to such person, or to the attorney who represented such person
	 at the time of the termination of the action or proceeding, at the address
	 given by such person or attorney during the action or proceeding, by the
	 division of criminal justice services and by any police department or
	 law enforcement agency having any such photograph, photographic plate
	 or proof, palmprints or fingerprints in its possession or under its control;
	 (b) any police department or law enforcement agency, including the division
	 of criminal justice services, which transmitted or otherwise forwarded
	 to any agency of the United States or of any other state or of any other
	 jurisdiction outside the state of New York copies of any such photographs,
	 photographic plates or proofs, palmprints and fingerprints, shall forthwith
	 formally request in writing that all such copies be destroyed or returned
	 to the police department or law enforcement agency which transmitted or
	 forwarded them, and upon such return such department or agency shall,
	 at its discretion, either destroy or return them as provided herein; (c)
	 all official records and papers relating to the arrest or prosecution,
	 including all duplicates and copies thereof, 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; (d) the records referred to in paragraph (c) of this subdivision
	 shall be made available to the person accused or to such person's
	 designated agent, and shall be made available to (i) a prosecutor in any
	 proceeding
	in which the accused has moved for an order pursuant to section 170.56
	 or 210.46 of this chapter, or (ii) a law enforcement agency upon ex parte
	 motion in any superior court, if such agency demonstrates to the satisfaction
	 of the court that justice requires that such records be made available
	 to it, or (iii) any state or local officer or agency with responsibility
	 for the issuance of licenses to possess guns, when the accused has made
	 application for such a license, or (iv) the New York state division of
	 parole when the accused is under parole supervision as a result of conditional
	 release or parole release granted by the New York state board of parole
	 and the arrest which is the subject of the inquiry is one which occurred
	 while the accused was under such supervision, or (v) the probation department
	 responsible for supervision of the accused when the arrest which is the
	 subject of the inquiry is one which occurred while the accused was under
	 such supervision, or (vi) a police agency, probation department, sheriff's
	 office, district attorney's office, department of correction of any
	 municipality and parole department, for law enforcement purposes, upon
	 arrest in instances in which the individual stands convicted of harassment
	 in the second degree, as defined in section 240.26 of the penal law, committed
	 against a member of the same family or household as the defendant, as
	 defined in subdivision one of section 530.11 of this chapter, and determined
	 pursuant to subdivision eight-a of section 170.10 of this title; and (e)
	 where fingerprints subject to the provisions of this section have been
	 received by the division of criminal justice services and have been filed
	 by the division as digital images, such images may be retained, provided
	 that a fingerprint card of the individual is on file with the division
	 which was not sealed pursuant to this section or section 160.50 of this
	 article. 2. A report of the termination of the action or proceeding by
	 conviction of a traffic violation or a violation other than a violation
	 of loitering as described in paragraph (d) or (e) of subdivision one of
	 section 160.10 of this title or the violation of operating a motor vehicle
	 while ability impaired as described in subdivision one of section eleven
	 hundred ninety-two of the vehicle and traffic law, shall be sufficient
	 notice of sealing to the commissioner of the division of criminal justice
	 services unless the report also indicates that the court directed that
	 the record not be sealed in the interests of justice. Where the court
	 has determined pursuant to subdivision one of this section that sealing
	 is not in the interests of justice, the clerk of the court shall include
	 notification of that determination in any report to such division of the
	 disposition of the action or proceeding. When the defendant has been found
	 guilty of a violation of harassment in the second degree and it was determined
	 pursuant to subdivision eight-a of section 170.10 of this title that such
	 violation was committed against a member of the same family or household
	 as the defendant, the clerk of the court shall include notification of
	 that determination in any report to such division of the disposition of
	 the action or proceeding for purposes of paragraph (a) and subparagraph
	 (vi) of paragraph (d) of subdivision one of this section. 3. A person
	 against whom a criminal action or proceeding was terminated by such person's
	 conviction of a traffic infraction or violation other than a violation
	 of loitering as described in paragraph (d) or (e) of subdivision one of
	 section 160.10 of this chapter or the violation of operating a motor vehicle
	 while ability impaired as described in subdivision one of section eleven
	 hundred ninety-two of the vehicle and traffic law, prior to the effective
	 date of this section, may upon motion apply to the court in which such
	 termination occurred,
	upon not less than twenty days notice to the district attorney, for an
	 order granting to such person the relief set forth in subdivision one
	 of this section, and such order shall be granted unless the district attorney
	 demonstrates to the satisfaction of the court that the interests of justice
	 require otherwise. 4. This section shall not apply to an action terminated
	 in a manner described in paragraph (k) of subdivision two of section 160.50
	 of this chapter. 5. (a) When a criminal action or proceeding is terminated
	 against a person by the entry of a waiver of a hearing pursuant to paragraph
	 (c) of subdivision ten of section eleven hundred ninety-two of the vehicle
	 and traffic law or section forty-nine-b of the navigation law, the record
	 of the criminal action shall be sealed in accordance with this subdivision.
	 Upon the entry of such waiver, the court or the clerk of the court shall
	 immediately notify the commissioner of the division of criminal justice
	 services and the heads of all appropriate police departments and other
	 law enforcement agencies that a waiver has been entered and that the record
	 of the action shall be sealed when the person reaches the age of twenty-one
	 or three years from the date of commission of the offense, whichever is
	 the greater period of time. At the expiration of such period, the commissioner
	 of the division of criminal justice services and the heads of all appropriate
	 police departments and other law enforcement agencies shall take the actions
	 required by paragraphs (a), (b) and (c) of subdivision one of section
	 160.50 of this article. (b) Where a person under the age of twenty-one
	 is referred by the police to the department of motor vehicles for action
	 pursuant to section eleven hundred ninety-two-a or eleven hundred ninety-four-a
	 of the vehicle and traffic law, or section forty-nine-b of the navigation
	 law and a finding in favor of the motorist or operator is rendered, the
	 commissioner of the department of motor vehicles shall, as soon as practicable,
	 but not later than three years from the date of commission of the offense
	 or when such person reaches the age of twenty-one, whichever is the greater
	 period of time, notify the commissioner of the division of criminal justice
	 services and the heads of all appropriate police departments and other
	 law enforcement agencies that such finding in favor of the motorist or
	 operator was rendered. Upon receipt of such notification, the commissioner
	 of the division of criminal justice services and the heads of such police
	 departments and other law enforcement agencies shall take the actions
	 required by paragraphs (a), (b) and (c) of subdivision one of section
	 160.50 of this article. (c) Where a person under the age of twenty-one
	 is referred by the police to the department of motor vehicles for action
	 pursuant to section eleven hundred ninety-two-a or eleven hundred ninety-four-a
	 of the vehicle and traffic law, or section forty-nine-b of the navigation
	 law, and no notification is received by the commissioner of the division
	 of criminal justice services and the heads of all appropriate police departments
	 and other law enforcement agencies pursuant to paragraph (b) of this subdivision,
	 such commissioner of the division of criminal justice services and such
	 heads of police departments and other law enforcement agencies shall,
	 after three years from the date of commission of the offense or when the
	 person reaches the age of twenty-one, whichever is the greater period
	 of time, take the actions required by paragraphs (a), (b) and (c) of subdivision
	 one of section 160.50 of this article.

The new law would cause government employees or outside parties to hesitate before sharing this kind of sealed, confidential information with the general public. The full text of the bill appears below:

A11389 Text

S T A T E O F N E W Y O R K
11389
I N ASSEMBLY June 8, 2010
Introduced by COMMITTEE ON RULES — (at request of M. of A. Perry, DenDekker) — read once and referred to the Committee on Governmental Operations
AN ACT to amend the public officers law, in relation to the release of sealed court records THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM BLY, DO ENACT AS FOLLOWS:

Section 1. The public officers law is amended by adding a new section 81 to read as follows:

S 81. RELEASE OF SEALED COURT RECORDS. 1. ANY PERSON WHO INTENTIONALLY RELEASES OR OTHERWISE DISCLOSES TO ANOTHER THE NATURE, SUBSTANCE OR CONTENTS OF A SEALED COURT RECORD, EXCEPT IF REQUIRED BY STATUTE OR UPON WRITTEN ORDER ISSUED BY A COURT OF COMPETENT JURISDICTION, SHALL BE GUILTY OF A CLASS A MISDEMEANOR. NOTHING CONTAINED HEREIN SHALL PROHIBIT AN INDIVIDUAL WHO IS THE SUBJECT OF A SEALED COURT RECORD OR, IF SUCH PERSON IS DECEASED, THE PERSONAL REPRESENTATIVE OF HIS OR HER ESTATE, FROM DISCLOSING TO ANOTHER THE NATURE, SUBSTANCE OR CONTENTS OF HIS OR HER COURT RECORD. 2. A “SEALED COURT RECORD” SHALL MEAN ANY RECORD REQUIRED TO BE SEALED PURSUANT TO SECTION 160.50, 160.55, 160.58, 720.15, OR 725.15 OF THE CRIMINAL PROCEDURE LAW, OR SECTION 375.1 OR 375.2 OF THE FAMILY COURT ACT.

S 2. This act shall take effect immediately. EXPLANATION–Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD17223-05-0

UPDATE: Governor Paterson has vetoed the bill, claiming that it did not do enough to prevent arrests and prosecutions for inadvertent disclosures. Court officers and prosecutors strongly fought the bill’s passage.

If you have a question about the sealing of your confidential court records, you should contact experienced criminal defense attorneys with knowledge of the sealing statutes.

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