NY Crim Pro L § 160.55 (2021)
2021 New York Laws CPL - Criminal Procedure Part 2 - The Principal Proceedings Title H - Preliminary Proceedings in Local Criminal Court Article 160 - Fingerprinting and Photographing of Defendant After Arrest--Criminal Identification Records and Statistics 160.55 - Order Upon Termination of Criminal Action by Conviction for Noncriminal Offense; Entry of Waiver; Administrative Findings.

§  160.55  Order  upon  termination of criminal action by conviction for              noncriminal  offense;  entry  of   waiver;   administrative              findings.   1.  Regardless of the class of offense for which a person is initially charged, 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 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, 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 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 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 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.