NY Crim Pro L § 160.50 (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 160.50 - Order Upon Termination of Criminal Action in Favor of the Accused.

§  160.50  Order  upon  termination  of  criminal action in favor of the accused.   1. 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 misdemeanor and/or violation; 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  chapter  one hundred thirty-two of the laws of two thousand nineteen; or  (iii)  the  conviction  is  for  an  offense defined in former section 221.05 221.10, 221.15, 221.20, 221.35, or 221.40 of the penal law; or  (iv) the conviction was for an offense defined in  section  240.37  of the penal law; or  (v)  the conviction was for a violation of section 220.03 or 220.06 of the penal law prior to the effective date of the chapter of the laws  of two  thousand  twenty-one  that  amended  this  paragraph,  and the sole controlled substance involved was concentrated cannabis; or  (vi) the conviction was for an  offense  defined  in  section  222.10, 222.15, 222.25 or 222.45 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 222.10, 222.15, 222.25 or 222.45 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.