New York C.P.L. § 160.50 - Order upon termination of criminal action
in favor of the accused
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Upon the termination of a criminal action or proceeding against a person
in favor of such person, as defined in subdivision three of this section,
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 record
of such action or proceeding shall be sealed and 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 in favor of the accused,
and unless the court has directed otherwise, that the record of such action
or proceeding shall be sealed. Upon receipt of notification of such termination
and sealing:
(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, except a dismissal pursuant to section 170.56 or 210.46 of
this chapter, and all duplicates and copies thereof, except a digital
fingerprint image where authorized pursuant to paragraph (e) of this subdivision,
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, palmprint 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, including
those relating to actions or proceedings which were dismissed pursuant
to section 170.56 or 210.46 of this chapter, 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, if returned, such department or agency shall, at its discretion,
either destroy or return them as provided herein, except that those relating
to dismissals pursuant to section 170.56 or 210.46 of this chapter shall
not be destroyed or returned by such department or agency;
(c) all official records and papers, including judgments and orders of
a court but not including published court decisions or opinions or records
and briefs on appeal, relating to the arrest or prosecution, including
all duplicates and copies thereof, on file with the division of criminal
justice services, any court, police agency, or prosecutor's office
shall be sealed and not made available to any person or public or private agency;
(d) such records 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, or in any district
court, city court or the criminal court of the city of New York provided
that such court sealed the record, 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 department
of corrections and community supervision when the accused is on parole
supervision as a result of conditional release or a 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) any prospective employer of a police officer or peace
officer as those terms are defined in subdivisions thirty-three and thirty-four
of section 1.20 of this chapter, in relation to an application for employment
as a police officer or peace officer; provided, however, that every person
who is an applicant for the position of police officer or peace officer
shall be furnished with a copy of all records obtained under this paragraph
and afforded an opportunity to make an explanation thereto, or (vi) 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; 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 160.55
of this article.
2. A report of the termination of the action or proceeding in favor of
the accused 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 interest 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.
3. For the purposes of subdivision one of this section, a criminal action
or proceeding against a person shall be considered terminated in favor
of such person where:
(a) an order dismissing the entire accusatory instrument against such
person pursuant to article four hundred seventy was entered; or
(b) an order to dismiss the entire accusatory instrument against such
person pursuant to section 170.30, 170.50, 170.55, 170.56, 180.70, 210.20,
210.46 or 210.47 of this chapter was entered or deemed entered, or an
order terminating the prosecution against such person was entered pursuant
to section 180.85 of this chapter, and the people have not appealed from
such order or the determination of an appeal or appeals by the people
from such order has been against the people; or
(c) a verdict of complete acquittal was made pursuant to section 330.10
of this chapter; or
(d) a trial order of dismissal of the entire accusatory instrument against
such person pursuant to section 290.10 or 360.40 of this chapter was entered
and the people have not appealed from such order or the determination
of an appeal or appeals by the people from such order has been against
the people; or
(e) an order setting aside a verdict pursuant to section 330.30 or 370.10
of this chapter was entered and the people have not appealed from such
order or the determination of an appeal or appeals by the people from
such order has been against the people and no new trial has been ordered; or
(f) an order vacating a judgment pursuant to section 440.10 of this chapter
was entered and the people have not appealed from such order or the determination
of an appeal or appeals by the people from such order has been against
the people, and no new trial has been ordered; or
(g) an order of discharge pursuant to article seventy of the civil practice
law and rules was entered on a ground which invalidates the conviction
and the people have not appealed from such order or the determination
of an appeal or appeals by the people from such order has been against
the people; or
(h) where all charges against such person are dismissed pursuant to section
190.75 of this chapter. In such event, the clerk of the court which empaneled
the grand jury shall serve a certification of such disposition upon the
division of criminal justice services and upon the appropriate police
department or law enforcement agency which upon receipt thereof, shall
comply with the provisions of paragraphs (a), (b), (c) and (d) of subdivision
one of this section in the same manner as is required thereunder with
respect to an order of a court entered pursuant to said subdivision one; or
(i) prior to the filing of an accusatory instrument in a local criminal
court against such person, the prosecutor elects not to prosecute such
person. In such event, the prosecutor shall serve a certification of such
disposition upon the division of criminal justice services and upon the
appropriate police department or law enforcement agency which, upon receipt
thereof, shall comply with the provisions of paragraphs (a), (b), (c)
and (d) of subdivision one of this section in the same manner as is required
thereunder with respect to an order of a court entered pursuant to said
subdivision one.
(j) following the arrest of such person, the arresting police agency,
prior to the filing of an accusatory instrument in a local criminal court
but subsequent to the forwarding of a copy of the fingerprints of such
person to the division of criminal justice services, elects not to proceed
further. In such event, the head of the arresting police agency shall
serve a certification of such disposition upon the division of criminal
justice services which, upon receipt thereof, shall comply with the provisions
of paragraphs (a), (b), (c) and (d) of subdivision one of this section
in the same manner as is required thereunder with respect to an order
of a court entered pursuant to said subdivision one.
(k) (i) The conviction was for a violation of article two hundred twenty
or section 240.36 of the penal law prior to the effective date of article
two hundred twenty-one of the penal law, and the sole controlled substance
involved was marihuana and the conviction was only for a violation or
violations; or
(ii) the conviction is for an offense defined in section 221.05 or 221.10
of the penal law prior to the effective date of the chapter of the laws
of two thousand nineteen that amended this paragraph; or
(iii) the conviction is for an offense defined in section 221.05 or 221.10
of the penal law.
No defendant shall be required or permitted to waive eligibility for sealing
or expungement pursuant to this section as part of a plea of guilty, sentence
or any agreement related to a conviction for a violation of section 221.05
or section 221.10 of the penal law and any such waiver shall be deemed
void and wholly unenforceable.
(l) An order dismissing an action pursuant to section 215.40 of this chapter
was entered.
4. A person in whose favor a criminal action or proceeding was terminated,
as defined in paragraph (a) through (h) of subdivision two of this section,
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. A person
in whose favor a criminal action or proceeding was terminated, as defined
in paragraph (i) or (j) of subdivision two of this section, prior to the
effective date of this section, may apply to the appropriate prosecutor
or police agency for a certification as described in said paragraph (i)
or (j) granting to such person the relief set forth therein, and such
certification shall be granted by such prosecutor or police agency.
5. (a) Expungement of certain marihuana-related records. A conviction
for an offense described in paragraph (k) of subdivision three of this
section shall, on and after the effective date of this paragraph, in accordance
with the provisions of this paragraph, be vacated and dismissed, and all
records of such conviction or convictions and related to such conviction
or convictions shall be expunged, as described in subdivision forty-five
of section 1.20 of this chapter, and the matter shall be considered terminated
in favor of the accused and deemed a nullity, having been rendered by
this paragraph legally invalid. All such records for an offense described
in this paragraph where the conviction was entered on or before the effective
date of the chapter of the laws of 2019 that amended this paragraph shall
be expunged promptly and, in any event, no later than one year after such
effective date.
(b) Duties of certain state officials and law enforcement agencies. Commencing
upon the effective date of this paragraph:
(i) the chief administrator of the courts shall promptly notify the commissioner
of the division of criminal justice services and the heads of all appropriate
police departments, district attorney's offices and other law enforcement
agencies of all convictions that have been vacated and dismissed pursuant
to paragraph (a) of this subdivision and that all records related to such
convictions shall be expunged and the matter shall be considered terminated
in favor of the accused and deemed a nullity, having been rendered legally
invalid. Upon receipt of notification of such vacatur, dismissal and expungement,
all records relating to such conviction or convictions, or the criminal
action or proceeding, as the case may be, shall be marked as expunged
by conspicuously indicating on the face of the record and on each page
or at the beginning of the digitized file of the record that the record
has been designated as expunged. Upon the written request of the individual
whose case has been expunged or their designated agent, such records shall
be destroyed. Such records and papers shall not be made available to any
person, except the individual whose case has been expunged or such person's
designated agent; and
(ii) where automatic vacatur, dismissal, and expungement, including record
destruction if requested, is required by this subdivision but any record
of the court system in this state has not yet been updated to reflect
same (A) notwithstanding any other provision of law except as provided
in paragraph (d) of subdivision one of this section and paragraph (e)
of subdivision four of section eight hundred thirty-seven of the executive
law: (1) when the division of criminal justice services conducts a search
of its criminal history records, maintained pursuant to subdivision six
of section eight hundred thirty-seven of the executive law, and returns
a report thereon, all references to a conviction for an offense described
in paragraph (k) of subdivision three of this section shall be excluded
from such report; and (2) the chief administrator of the courts shall
develop and promulgate rules as may be necessary to ensure that no written
or electronic report of a criminal history record search conducted by
the office of court administration contains information relating to a
conviction for an offense described in paragraph (k) of subdivision three
of this section; and (B) where court records relevant to such matter cannot
be located or have been destroyed, and a person or the person's attorney
presents to an appropriate court employee a fingerprint record of the
New York state division of criminal justice services, or a copy of a court
disposition record or other relevant court record, which indicates that
a criminal action or proceeding against such person was terminated by
conviction of an offense described in paragraph (k) of subdivision three
of this section, then promptly, and in any event within thirty days after
such notice to such court employee, the chief administrator of the courts
or his or her designee shall assure that such vacatur, dismissal, and
expungement, including record destruction if requested, have been completed
in accordance with subparagraph (i) of this paragraph.
(c) Vacatur, dismissal and expungement as set forth in this subdivision
is without prejudice to any person or such person's attorney seeking
further relief pursuant to article four hundred forty of this chapter
or any other law. Nothing in this section is intended or shall be interpreted
to diminish or abrogate any right or remedy otherwise available to any person.
(d) The office of court administration, in conjunction with the division
of criminal justice services, shall develop an affirmative information
campaign and widely disseminate to the public, through its website, public
service announcements and other means, in multiple languages and through
multiple outlets, information concerning the expungement, vacatur and
resentencing of marihuana convictions established by the chapter of the
laws of two thousand nineteen that added this paragraph, including, but
not limited to, the automatic expungement of certain past convictions,
the means by which an individual may file a motion for vacatur, dismissal
and expungement of certain past convictions, and the impact of such changes
on such person's criminal history records.
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