N.Y. Family Court Act § 783: Use of records in other court; expungement of records

§ 783. Use of records in other court; expungement of records. (a)

Neither the fact that a person was before the family court under this

article for a hearing nor any confession, admission or statement made by

him or her to the court or to any officer thereof in any stage of the

proceeding is admissible as evidence against him or her or his or her

interests in any other court.

(b) For purposes of this section, "expungement" shall mean that all

official records and papers, including judgments and orders of the

court, but not including public court decisions or opinions or records

and briefs on appeal, relating to the arrest, prosecution and court

proceedings and records of the probation service and designated lead

agency, including all duplicates or copies thereof, on file with the

court, police department and law enforcement agency, probation service,

designated lead agency and presentment agency, if any, shall be

destroyed and, except for records sealed as provided in paragraphs (v)

and (vi) of subdivision (c) of this section, shall not be made available

to any person or public or private agency. Provided, however, that

foster care and preventive service records maintained by social services

departments relating to a proceeding under this article shall not be

subject to expungement or sealing under this section and shall be held

confidential in accordance with article six of the social services law.

(c) Automatic expungement of records of a proceeding under this

article that is terminated in favor of the respondent. (i) Upon

termination of a proceeding under this article in favor of the

respondent, the clerk of the court shall immediately notify and direct

the directors of the appropriate probation department, designated lead

agency pursuant to section seven hundred thirty-five of this article, a

local educational agency if an official of such agency was the

petitioner pursuant to section seven hundred thirty-three of this

article and, if a presentment agency represented the petitioner in the

proceeding, such agency, that the proceeding has terminated in favor of

the respondent and that the records, if any, of such action or

proceeding on file with such offices shall be expunged. If the

respondent had been the subject of a warrant or an arrest in connection

with the proceeding, or law enforcement was the referring agency or

petitioner pursuant to section seven hundred thirty-three of this

article, the notice shall also be sent to the appropriate police

department or law enforcement agency. Upon receipt of such notification,

the records shall be expunged in accordance with subdivision (b) of this

section. The attorney for the respondent shall be notified by the clerk

of the court in writing of the date and agencies and departments to

which such notifications were sent.

(ii) For the purposes of this section, a proceeding under this article

shall be considered terminated in favor of a respondent where the

proceeding has been:

(A) diverted prior to the filing of a petition pursuant to subdivision

(g) of section seven hundred thirty-five of this article or subsequent

to the filing of a petition pursuant to subdivision (b) of section seven

hundred forty-two of this article; or

(B) withdrawn or dismissed for failure to prosecute, or for any other

reason at any stage; or

(C) dismissed following an adjournment in contemplation of dismissal

pursuant to subdivision (a) of section seven hundred forty-nine of this

article; or

(D) resulted in an adjudication where the only finding was for a

violation of former section 221.05 or section 230.00 of the penal law;

provided, however, that with respect to findings under this paragraph,

the expungement required by this section shall not take place until the

conclusion of the period of any disposition or extension under this

article.

(iii) If, with respect to a respondent who had been the subject of a

warrant or an arrest in connection with the proceeding, or law

enforcement was the referring agency, the designated lead agency diverts

a case either prior to or subsequent to the filing of a petition under

this article, the designated lead agency shall notify the appropriate

probation service and police department or law enforcement agency in

writing of such diversion. Such notification may be on a form prescribed

by the chief administrator of the courts. Upon receipt of such

notification, the probation service and police department or law

enforcement agency shall expunge any records in accordance with

subdivision (b) of this section in the same manner as is required

thereunder with respect to an order of a court.

(iv) If, following the referral of a proceeding under this article for

the filing of a petition, the petitioner or, if represented by a

presentment agency, such agency, elects not to file a petition under

this article, the petitioner or, if applicable, the presentment agency,

shall notify the appropriate probation service and designated lead

agency of such determination. Such notification may be on a form

prescribed by the chief administrator of the courts and may be

transmitted by electronic means. If the respondent had been the subject

of a warrant or an arrest in connection with the proceeding, or law

enforcement was the referring agency, the notification shall also be

sent to the appropriate police department or law enforcement agency.

Upon receipt of such notification, the records shall be expunged in

accordance with subdivision (b) of this section in the same manner as is

required thereunder with respect to an order of a court, provided,

however, that the designated lead agency may have access to its own

records in accordance with paragraph (v) of this subdivision.

(v) Where a proceeding has been diverted pursuant to subparagraph (A)

of paragraph (ii) of this subdivision or where a proceeding has been

referred for the filing of a petition but the potential petitioner or,

if represented by a presentment agency, such agency, elects not to file

a petition in accordance with paragraph (iv) of this subdivision, upon

receipt of written notice the designated lead agency shall seal any

records related to the proceeding under this section that are in its

possession, but shall have access to such records solely for the

following purposes:

(A) where there is continuing or subsequent contact with the child

under this article; or

(B) where the information is necessary for such department to

determine what services had been arranged or provided to the family or

where the commissioner determines that the information is necessary in

order for the commissioner of such department to comply with section

four hundred twenty-two-a of the social services law.

(vi) Records sealed under this section shall be made available to the

juvenile or his or her agent and, where the petitioner or potential

petitioner is a parent or other person legally responsible for the

juvenile's care, such parent or other person. No statement made to a

designated lead agency by the juvenile or his or her parent or other

person legally responsible that is contained in a record expunged or

sealed under this section shall be admissible in any court proceeding,

except upon the consent or at the request, respectively, of the juvenile

or his or her parent or other person legally responsible for the

juvenile's care.

(vii) A respondent in whose favor a proceeding was terminated prior to

the effective date of this paragraph may, upon motion, apply to the

court, upon not less than twenty days notice to the petitioner or (where

the petitioner is represented by a presentment agency) such agency, for

an order granting the relief set forth in paragraph (i) of this

subdivision. Where a proceeding under this article was terminated in

favor of the respondent in accordance with paragraph (iii) or (iv) of

this subdivision prior to the effective date of this paragraph, the

respondent may apply to the designated lead agency, petitioner or

presentment agency, as applicable, for a notification as described in

such paragraphs granting the relief set forth therein and such

notification shall be granted.

(d) Motion to expunge after an adjudication and disposition. (i) If an

action has resulted in an adjudication and disposition under this

article, the court may, in the interest of justice and upon motion of

the respondent, order the expungement of the records and proceedings.

(ii) Such motion must be in writing and may be filed at any time

subsequent to the conclusion of the disposition, including, but not

limited to, the expiration of the period of placement, suspended

judgment, order of protection or probation or any extension thereof.

Notice of such motion shall be served not less than eight days prior to

the return date of the motion upon the petitioner or, if the petitioner

was represented by a presentment agency, such agency. Answering

affidavits shall be served at least two days before the return date.

(iii) The court shall set forth in a written order its reasons for

granting or denying the motion. If the court grants the motion, all

court records, as well as all records in the possession of the

designated lead agency, the probation service, the presentment agency,

if any, and, if the respondent had been the subject of a warrant or an

arrest in connection with the proceeding, or if the police or law

enforcement agency was the referring agency or petitioner pursuant to

section seven hundred thirty-three of this article, the appropriate

police or law enforcement agency, shall be expunged in accordance with

subdivision (b) of this section.

(e) Automatic expungement of court records. All records under this

article shall be automatically expunged upon the respondent's

twenty-first birthday unless earlier expunged under this section,

provided that expungement under this paragraph shall not take place

until the conclusion of the period of any disposition or extension under

this article.

(f) Expungement of court records; inherent power. Nothing contained in

this article shall preclude the court's use of its inherent power to

order the expungement of court records.