N.Y. Criminal Procedure Law § 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.