§ 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 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.
