Order upon termination of criminal action in favor of the accused

§ 160.50 Order upon termination of criminal action in favor of the\naccused.\n 1. Upon the termination of a criminal action or proceeding against a\nperson in favor of such person, as defined in subdivision three of this\nsection, unless the district attorney upon motion with not less than\nfive days notice to such person or his or her attorney demonstrates to\nthe satisfaction of the court that the interests of justice require\notherwise, or the court on its own motion with not less than five days\nnotice to such person or his or her attorney determines that the\ninterests of justice require otherwise and states the reasons for such\ndetermination on the record, the record of such action or proceeding\nshall be sealed and the clerk of the court wherein such criminal action\nor proceeding was terminated shall immediately notify the commissioner\nof the division of criminal justice services and the heads of all\nappropriate police departments and other law enforcement agencies that\nthe action has been terminated in favor of the accused, and unless the\ncourt has directed otherwise, that the record of such action or\nproceeding shall be sealed. Upon receipt of notification of such\ntermination and sealing:\n (a) every photograph of such person and photographic plate or proof,\nand all palmprints and fingerprints taken or made of such person\npursuant to the provisions of this article in regard to the action or\nproceeding terminated, except a dismissal pursuant to section 170.56 or\n210.46 of this chapter, and all duplicates and copies thereof, except a\ndigital fingerprint image where authorized pursuant to paragraph (e) of\nthis subdivision, shall forthwith be, at the discretion of the recipient\nagency, either destroyed or returned to such person, or to the attorney\nwho represented such person at the time of the termination of the action\nor proceeding, at the address given by such person or attorney during\nthe action or proceeding, by the division of criminal justice services\nand by any police department or law enforcement agency having any such\nphotograph, photographic plate or proof, palmprint or fingerprints in\nits possession or under its control;\n (b) any police department or law enforcement agency, including the\ndivision of criminal justice services, which transmitted or otherwise\nforwarded to any agency of the United States or of any other state or of\nany other jurisdiction outside the state of New York copies of any such\nphotographs, photographic plates or proofs, palmprints and fingerprints,\nincluding those relating to actions or proceedings which were dismissed\npursuant to section 170.56 or 210.46 of this chapter, shall forthwith\nformally request in writing that all such copies be destroyed or\nreturned to the police department or law enforcement agency which\ntransmitted or forwarded them, and, if returned, such department or\nagency shall, at its discretion, either destroy or return them as\nprovided herein, except that those relating to dismissals pursuant to\nsection 170.56 or 210.46 of this chapter shall not be destroyed or\nreturned by such department or agency;\n (c) all official records and papers, including judgments and orders of\na court but not including published court decisions or opinions or\nrecords and briefs on appeal, relating to the arrest or prosecution,\nincluding all duplicates and copies thereof, on file with the division\nof criminal justice services, any court, police agency, or prosecutor's\noffice shall be sealed and not made available to any person or public or\nprivate agency;\n (d) such records shall be made available to the person accused or to\nsuch person's designated agent, and shall be made available to (i) a\nprosecutor in any proceeding in which the accused has moved for an order\npursuant to section 170.56 or 210.46 of this chapter, or (ii) a law\nenforcement agency upon ex parte motion in any superior court, or in any\ndistrict court, city court or the criminal court of the city of New York\nprovided that such court sealed the record, if such agency demonstrates\nto the satisfaction of the court that justice requires that such records\nbe made available to it, or (iii) any state or local officer or agency\nwith responsibility for the issuance of licenses to possess guns, when\nthe accused has made application for such a license, or (iv) the New\nYork state department of corrections and community supervision when the\naccused is on parole supervision as a result of conditional release or a\nparole release granted by the New York state board of parole, and the\narrest which is the subject of the inquiry is one which occurred while\nthe accused was under such supervision, or (v) any prospective employer\nof a police officer or peace officer as those terms are defined in\nsubdivisions thirty-three and thirty-four of section 1.20 of this\nchapter, in relation to an application for employment as a police\nofficer or peace officer; provided, however, that every person who is an\napplicant for the position of police officer or peace officer shall be\nfurnished with a copy of all records obtained under this paragraph and\nafforded an opportunity to make an explanation thereto, or (vi) the\nprobation department responsible for supervision of the accused when the\narrest which is the subject of the inquiry is one which occurred while\nthe accused was under such supervision; and\n (e) where fingerprints subject to the provisions of this section have\nbeen received by the division of criminal justice services and have been\nfiled by the division as digital images, such images may be retained,\nprovided that a fingerprint card of the individual is on file with the\ndivision which was not sealed pursuant to this section or section 160.55\nof this article.\n 2. A report of the termination of the action or proceeding in favor of\nthe accused shall be sufficient notice of sealing to the commissioner of\nthe division of criminal justice services unless the report also\nindicates that the court directed that the record not be sealed in the\ninterests of justice. Where the court has determined pursuant to\nsubdivision one of this section that sealing is not in the interest of\njustice, the clerk of the court shall include notification of that\ndetermination in any report to such division of the disposition of the\naction or proceeding.\n 3. For the purposes of subdivision one of this section, a criminal\naction or proceeding against a person shall be considered terminated in\nfavor of such person where:\n (a) an order dismissing the entire accusatory instrument against such\nperson pursuant to article four hundred seventy was entered; or\n (b) an order to dismiss the entire accusatory instrument against such\nperson pursuant to section 170.30, 170.50, 170.55, 170.56, 180.70,\n210.20, 210.46 or 210.47 of this chapter was entered or deemed entered,\nor an order terminating the prosecution against such person was entered\npursuant to section 180.85 of this chapter, and the people have not\nappealed from such order or the determination of an appeal or appeals by\nthe people from such order has been against the people; or\n (c) a verdict of complete acquittal was made pursuant to section\n330.10 of this chapter; or\n (d) a trial order of dismissal of the entire accusatory instrument\nagainst such person pursuant to section 290.10 or 360.40 of this chapter\nwas entered and the people have not appealed from such order or the\ndetermination of an appeal or appeals by the people from such order has\nbeen against the people; or\n (e) an order setting aside a verdict pursuant to section 330.30 or\n370.10 of this chapter was entered and the people have not appealed from\nsuch order or the determination of an appeal or appeals by the people\nfrom such order has been against the people and no new trial has been\nordered; or\n (f) an order vacating a judgment pursuant to section 440.10 of this\nchapter was entered and the people have not appealed from such order or\nthe determination of an appeal or appeals by the people from such order\nhas been against the people, and no new trial has been ordered; or\n (g) an order of discharge pursuant to article seventy of the civil\npractice law and rules was entered on a ground which invalidates the\nconviction and the people have not appealed from such order or the\ndetermination of an appeal or appeals by the people from such order has\nbeen against the people; or\n (h) where all charges against such person are dismissed pursuant to\nsection 190.75 of this chapter. In such event, the clerk of the court\nwhich empaneled the grand jury shall serve a certification of such\ndisposition upon the division of criminal justice services and upon the\nappropriate police department or law enforcement agency which upon\nreceipt thereof, shall comply with the provisions of paragraphs (a),\n(b), (c) and (d) of subdivision one of this section in the same manner\nas is required thereunder with respect to an order of a court entered\npursuant to said subdivision one; or\n (i) prior to the filing of an accusatory instrument in a local\ncriminal court against such person, the prosecutor elects not to\nprosecute such person. In such event, the prosecutor shall serve a\ncertification of such disposition upon the division of criminal justice\nservices and upon the appropriate police department or law enforcement\nagency which, upon receipt thereof, shall comply with the provisions of\nparagraphs (a), (b), (c) and (d) of subdivision one of this section in\nthe same manner as is required thereunder with respect to an order of a\ncourt entered pursuant to said subdivision one.\n (j) following the arrest of such person, the arresting police agency,\nprior to the filing of an accusatory instrument in a local criminal\ncourt but subsequent to the forwarding of a copy of the fingerprints of\nsuch person to the division of criminal justice services, elects not to\nproceed further. In such event, the head of the arresting police agency\nshall serve a certification of such disposition upon the division of\ncriminal justice services which, upon receipt thereof, shall comply with\nthe provisions of paragraphs (a), (b), (c) and (d) of subdivision one of\nthis section in the same manner as is required thereunder with respect\nto an order of a court entered pursuant to said subdivision one.\n (k) (i) The conviction was for a violation of article two hundred\ntwenty or section 240.36 of the penal law prior to the effective date of\narticle two hundred twenty-one of the penal law, and the sole controlled\nsubstance involved was marihuana and the conviction was only for a\nmisdemeanor and/or violation; or\n (ii) the conviction is for an offense defined in section 221.05 or\n221.10 of the penal law prior to the effective date of chapter one\nhundred thirty-two of the laws of two thousand nineteen; or\n (iii) the conviction is for an offense defined in former section\n221.05 221.10, 221.15, 221.20, 221.35, or 221.40 of the penal law; or\n (iv) the conviction was for an offense defined in section 240.37 of\nthe penal law; or\n (v) the conviction was for a violation of section 220.03 or 220.06 of\nthe penal law prior to the effective date of the chapter of the laws of\ntwo thousand twenty-one that amended this paragraph, and the sole\ncontrolled substance involved was concentrated cannabis; or\n (vi) the conviction was for an offense defined in section 222.10,\n222.15, 222.25 or 222.45 of the penal law.\n No defendant shall be required or permitted to waive eligibility for\nsealing or expungement pursuant to this section as part of a plea of\nguilty, sentence or any agreement related to a conviction for a\nviolation of section 222.10, 222.15, 222.25 or 222.45 of the penal law\nand any such waiver shall be deemed void and wholly unenforceable.\n (l) An order dismissing an action pursuant to section 215.40 of this\nchapter was entered.\n 4. A person in whose favor a criminal action or proceeding was\nterminated, as defined in paragraph (a) through (h) of subdivision two\nof this section, prior to the effective date of this section, may upon\nmotion apply to the court in which such termination occurred, upon not\nless than twenty days notice to the district attorney, for an order\ngranting to such person the relief set forth in subdivision one of this\nsection, and such order shall be granted unless the district attorney\ndemonstrates to the satisfaction of the court that the interests of\njustice require otherwise. A person in whose favor a criminal action or\nproceeding was terminated, as defined in paragraph (i) or (j) of\nsubdivision two of this section, prior to the effective date of this\nsection, may apply to the appropriate prosecutor or police agency for a\ncertification as described in said paragraph (i) or (j) granting to such\nperson the relief set forth therein, and such certification shall be\ngranted by such prosecutor or police agency.\n 5. (a) Expungement of certain marihuana-related records. A conviction\nfor an offense described in paragraph (k) of subdivision three of this\nsection shall, on and after the effective date of this paragraph, in\naccordance with the provisions of this paragraph, be vacated and\ndismissed, and all records of such conviction or convictions and related\nto such conviction or convictions shall be expunged, as described in\nsubdivision forty-five of section 1.20 of this chapter, and the matter\nshall be considered terminated in favor of the accused and deemed a\nnullity, having been rendered by this paragraph legally invalid. All\nsuch records for an offense described in this paragraph where the\nconviction was entered on or before the effective date of the chapter of\nthe laws of 2019 that amended this paragraph shall be expunged promptly\nand, in any event, no later than one year after such effective date.\n (b) Duties of certain state officials and law enforcement agencies.\nCommencing upon the effective date of this paragraph:\n (i) the chief administrator of the courts shall promptly notify the\ncommissioner of the division of criminal justice services and the heads\nof all appropriate police departments, district attorney's offices and\nother law enforcement agencies of all convictions that have been vacated\nand dismissed pursuant to paragraph (a) of this subdivision and that all\nrecords related to such convictions shall be expunged and the matter\nshall be considered terminated in favor of the accused and deemed a\nnullity, having been rendered legally invalid. Upon receipt of\nnotification of such vacatur, dismissal and expungement, all records\nrelating to such conviction or convictions, or the criminal action or\nproceeding, as the case may be, shall be marked as expunged by\nconspicuously indicating on the face of the record and on each page or\nat the beginning of the digitized file of the record that the record has\nbeen designated as expunged. Upon the written request of the individual\nwhose case has been expunged or their designated agent, such records\nshall be destroyed. Such records and papers shall not be made available\nto any person, except the individual whose case has been expunged or\nsuch person's designated agent; and\n (ii) where automatic vacatur, dismissal, and expungement, including\nrecord destruction if requested, is required by this subdivision but any\nrecord of the court system in this state has not yet been updated to\nreflect same (A) notwithstanding any other provision of law except as\nprovided in paragraph (d) of subdivision one of this section and\nparagraph (e) of subdivision four of section eight hundred thirty-seven\nof the executive law: (1) when the division of criminal justice services\nconducts a search of its criminal history records, maintained pursuant\nto subdivision six of section eight hundred thirty-seven of the\nexecutive law, and returns a report thereon, all references to a\nconviction for an offense described in paragraph (k) of subdivision\nthree of this section shall be excluded from such report; and (2) the\nchief administrator of the courts shall develop and promulgate rules as\nmay be necessary to ensure that no written or electronic report of a\ncriminal history record search conducted by the office of court\nadministration contains information relating to a conviction for an\noffense described in paragraph (k) of subdivision three of this section;\nand (B) where court records relevant to such matter cannot be located or\nhave been destroyed, and a person or the person's attorney presents to\nan appropriate court employee a fingerprint record of the New York state\ndivision of criminal justice services, or a copy of a court disposition\nrecord or other relevant court record, which indicates that a criminal\naction or proceeding against such person was terminated by conviction of\nan offense described in paragraph (k) of subdivision three of this\nsection, then promptly, and in any event within thirty days after such\nnotice to such court employee, the chief administrator of the courts or\nhis or her designee shall assure that such vacatur, dismissal, and\nexpungement, including record destruction if requested, have been\ncompleted in accordance with subparagraph (i) of this paragraph.\n (c) Vacatur, dismissal and expungement as set forth in this\nsubdivision is without prejudice to any person or such person's attorney\nseeking further relief pursuant to article four hundred forty of this\nchapter or any other law. Nothing in this section is intended or shall\nbe interpreted to diminish or abrogate any right or remedy otherwise\navailable to any person.\n (d) The office of court administration, in conjunction with the\ndivision of criminal justice services, shall develop an affirmative\ninformation campaign and widely disseminate to the public, through its\nwebsite, public service announcements and other means, in multiple\nlanguages and through multiple outlets, information concerning the\nexpungement, vacatur and resentencing of marihuana convictions\nestablished by the chapter of the laws of two thousand nineteen that\nadded this paragraph, including, but not limited to, the automatic\nexpungement of certain past convictions, the means by which an\nindividual may file a motion for vacatur, dismissal and expungement of\ncertain past convictions, and the impact of such changes on such\nperson's criminal history records.\n