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New York Criminal Procedure - Article 160 - § 160.50 Order Upon Termination of Criminal Action in Favor of the Accused

Legal Research Home > New York Laws > Criminal Procedure > New York Criminal Procedure - Article 160 - § 160.50 Order Upon Termination of Criminal Action in Favor of the Accused


Criminal Procedure 
 
  §  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, 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 accusatory instrument alleged a violation of article two
  hundred twenty or section 240.36 of the penal law, prior to  the  taking
  effect  of  article  two  hundred  twenty-one  of  the  penal  law, or a
  violation of article two hundred twenty-one of the penal law;  (ii)  the
  sole  controlled  substance  involved is marijuana; (iii) the conviction
  was only for a violation or violations; and (iv) at  least  three  years
  have passed since the offense occurred.
    (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.
Section:  Previous  Article 160  160.10  160.20  160.30  160.40  160.45  160.50  160.55  160.58  160.60  Next

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Last modified: February 15, 2014