BILL NUMBER: S4381
SPONSOR: BAILEY
 
TITLE OF BILL:
An act to amend the family court act, in relation to providing for the
confidentiality, sealing, and expungement of juvenile delinquency
records; and to repeal section 375.3 of the family court act relating
thereto
 
PURPOSE:
To provide for confidentiality, sealing, and expungement of juvenile
delinquency records.
 
SUMMARY OF SPECIFIC PROVISIONS:
Section 1. The family court act is amended by adding a new section
301.5, providing that an officer of the court with whom proceedings
pursuant to this article are filed, or his or her clerk, either before
or after the conclusion of the proceeding, must not permit a copy of any
of the documents relating to such proceeding to be taken or seen by any
person other than the respondent, the attorney for the child, an attor-
ney employed by the presentment agency, or an official employed by the
probation service, except as ordered by the court. Notwithstanding the
provisions of subdivision one of this section, an officer of the court,
or his or her clerk, may not permit access of any person to a record
that has been sealed pursuant to sections 375.1, 375.2, or 375.3.
Section 2. Section 375.1 of the family court act, as added by chapter
920 of the laws of 1982, subdivision 1 as amended by chapter 41 of the
laws of 2010, paragraphs (d), (f) and (h) of subdivision 2 and subdivi-
sion 3 as amended and paragraph (i) of subdivision 2 as added by chapter
398 of the laws of 1983, is amended to provide that upon termination of
a delinquency proceeding against a respondent in favor of such respond-
ent pursuant to subdivision three of this section except paragraphs (g)
and (h), unless the presentment agency upon written motion with not less
than eight days' notice to such respondent demonstrates to the satisfac-
tion of the court that the interest of justice requires otherwise or the
court on its own motion with not less than eight days' notice to such
respondent determines that the interest of justice require otherwise and
states the reason for such determination on the record, the court mast
enter an order sealing the appropriate records.
Upon entry of an order pursuant to subdivision one or pursuant to
sections 375.2 or 375.3, the clerk of the court must immediately seal
the relevant court records and immediately notify the director of the
appropriate presentment agency, and the heads of the appropriate
probation department, detention facility, police department or other law
enforcement agency that, unless the court has directed otherwise, the
records of such action or proceeding, other than those destroyed pursu-
ant to section 354.1 of this act, must be sealed.
Section 3. Subdivision 1, 5 and 6 of section 375.2 of the family court
act, subdivision 1 and 5 as added by chapter 920 of the laws of 1982,
and subdivision 6 as amended by section 77 of part WWW of chapter 59 of
the laws of 2017, are amended to provide that if an action results in a
finding of delinquency pursuant to subdivision one of Section 352.1 and
the records have not been sealed pursuant to Section 375.1 or 375.3, the
court may, in the interest of justice and upon notion of the respondent,
order the sealing of appropriate records pursuant to subdivision one of
section 375.1
Section 375.1. The court may not order the sealing of any record except
as prescribed by this section or sections 375.1 and 375.3. If the find-
ing relates to an act committed before the respondent attained age
sixteen, such a motion cannot be filed until the respondent's sixteenth
birthday. If the finding relates to an act committed subsequent to the
respondent's sixteenth birthday, such motion cannot be filed until the
respondent has attained age eighteen.
Section 4. Section 375.3 of the family court act is REPEALED and a new
section 375.3 is added to provide that if an action has resulted in a
finding of delinquency pursuant to subdivision one of section 352.1 and
every specific count of the petition upon which the fact-finding order
entered pursuant to Section 345.1 constitutes a misdemeanor if committed
by an adult, and four years have elapsed since the finding was entered,
the court must enter an order sealing the appropriate records pursuant
to subdivision one of section 375.1 and the clerk must immediately tran-
smit the notification pursuant to subdivision two of section 375.1, and
section 375.4. If after an action has resulted in a finding of delin-
quency pursuant to subdivision one of Section 352.1 and every specific
count or counts of the petition upon which the order entered pursuant to
section 345.1 constitutes a misdemeanor or a non-violent felony if
committed by an adult, and (a) five years have elapsed since the finding
was entered, (b) the respondent has had no subsequent adjudication of
juvenile delinquency or a criminal conviction, and (c) no juvenile
delinquency or criminal proceeding is then pending, the court must, upon
notion of the respondent, order the sealing of appropriate records
pursuant to subdivision one of Section 375.1 and the clerk of court must
immediately transmit the notification pursuant to subdivision 2 of
section 375.1 and section 375.4.
Section 5. The family court act is amended by adding a new section 375.4
to provide that - upon entering an order sealing appropriate records
pursuant to sections 375.1, 375.2, and 375.3 - the court clerk must
serve the respondent and the attorney for the child with a copy of such
order by ordinary mail sent to the last known address of the respondent
and the attorney for the child.
Section 6. The family court act is amended by adding a new section 375.5
to provide that the court must order the expungement of court records
and the records of the appropriate presentment agency and probation
department when the entire petition has been dismissed under subdivision
two of section 345.1.
Upon expiration of one year after termination of a delinquency proceed-
ing in favor of a child under paragraph (g) or (h) of subdivision three
of section 375.1, the director of the appropriate presentment agency,
and/or the head of the appropriate probation department, must destroy
the agency's records of such proceeding when the highest charge made by
the police department is a class E felony or a misdemeanor and the child
was less than thirteen years of age when the alleged act occurred. As
appropriate, the present agency must serve a certification of disposi-
tion upon the appropriate probation service, which must then destroy the
probation service's records in the same manner required with respect to
an order for the court.
Upon the filing of a written motion by the respondent on notice to the
appropriate presentment agency, the court must order the expungement of
court records, and/or the records of the appropriate presentment agency
or probation department, when: (a) the respondent has no juvenile delin-
quency or criminal history aside from the proceeding in which the motion
is made; (b) the proceeding did not result in a felony finding; and (c)
the respondent reached the age of twenty-one. In all other cases except
those in which a designated felony finding was made, the court, upon the
filing of a written motion by the respondent on notice to the appropri-
ate present agency, has the authority to order in its discretion and in
the interests of justice, the expungement of court records, and/or the
records of the appropriate presentment agency or probation department.
 
JUSTIFICATION:
This bill provides for the confidentiality, sealing, and expungement of
juvenile delinquency records. Effective October 7, 2017, a new section
of the Criminal Procedure Law (specifically, section 160.59) provides
for the sealing of criminal conviction records in certain circumstances
upon motion by an adult defendant. Applicable to misdemeanor cases and
virtually all non-violent felony offenses, the statute permits the court
to grant a motion to seal the records after the passage of 10 years,
provided the defendant has not been convicted in the intervening years
and no charges are then pending. CPL 160.59 incorporates criteria the
court must consider in determining a sealing motion. This measure,
which is applicable to Family Court findings of delinquency, is similar
(though not identical) to CPL 160.59. The differences are that (1)
misdemeanor findings are automatically sealed after the passage of four
years, no motion is required, and minor youthful offenses should be
automatically protected after several years; (2) non-violent Family
Court felony records may be sealed upon motion, provided five years have
elapsed and the relevant juvenile has not in the interim been found
guilty of delinquency or criminally convicted, and a criminal or YO case
is not pending; and
(3) unlike CPL 160.59, the proposed legislation does not incorporate
criteria which the court must follow in determining a sealing motion
(Family Court historically exercises wide discretion). As of October 7,
2017, the adult offender convicted of a misdemeanor or felony offense
can get their records sealed. Ironically, New York today protects the
adult offender but fails to afford equal protection to children. If
enacted, this measure would abrogate this dichotomy.
 
FISCAL IMPACT ON THE STATE.:
None.
 
PRIOR LEGISLATIVE HISTORY:
2019-20: Referred to Children and Families
2021-22: Referred to Children and Families
2023-24: Referred to Children and Families
 
EFFECTIVE DATE:
This act shall take effect on the ninetieth day after it shall have
become a law.