NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A1935
SPONSOR: Bichotte Hermelyn TITLE OF BILL:
An act to amend the criminal procedure law, in relation to expunction of
records resulting from identity theft or mistaken identity
PURPOSE OR GENERAL IDEA OF BILL:
Order upon termination of criminal action in favor of the accused as a
result of identity.theft or mistaken identity. The term "mistaken iden-
tity" means the erroneous arrest of a person for a crime as a result of
misidentification by a witness or law enforcement, confusion on the part
of a witness or law enforcement as to the identity of the person who
committed the crime, misinformation provided to law enforcement as to
the identity of the person who committed the crime, or some other
mistake on the part of a witness or law enforcement as to the identity
of the person who committed the crime.
SUMMARY OF SPECIFIC PROVISIONS:
Defines law enforcement to include: attorney general, superintendent of
state police or designee, police officers, Division of Criminal Justice
services, federal state or local law enforcement Defines expunction of
all official records to include but not be limited to: finger prints,
DNA samples, physical measurements, or other records of identity If a
person was arrested due to mistaken identity and the charge is dismissed
the court will expunge their records, the DMV will expunge its records,
all enforcement agencies associated with the case will expunge their
records, the Division of Criminal Justice will expunge its records,
insurance companies will expunge their records, the arrestee will not be
required to disclose their arrest.
JUSTIFICATION:
Innocent people are wrongfully charged with a misdemeanor or felony
every year due to Mistaken identity. If this erroneous arrest record is
not removed it can adversely affect these individuals their ability to
get a job, loans, or certain licenses.
PRIOR LEGISLATIVE HISTORY:
2021-22: A07300; referred to Codes
2019-20: A3232; referred to Codes
2017-18: A2981; referred to Codes
FISCAL IMPLICATIONS:
TBD
EFFECTIVE DATE:
This act shall take effect immediately
STATE OF NEW YORK
________________________________________________________________________
1935
2023-2024 Regular Sessions
IN ASSEMBLY
January 23, 2023
___________
Introduced by M. of A. BICHOTTE HERMELYN -- read once and referred to
the Committee on Codes
AN ACT to amend the criminal procedure law, in relation to expunction of
records resulting from identity theft or mistaken identity
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The criminal procedure law is amended by adding a new
2 section 160.53 to read as follows:
3 § 160.53 Order upon termination of criminal action in favor of the
4 accused as a result of identity theft or mistaken identity.
5 1. For purposes of this section, the term "mistaken identity" means
6 the erroneous arrest of a person for a crime as a result of misidentifi-
7 cation by a witness or law enforcement, confusion on the part of a
8 witness or law enforcement as to the identity of the person who commit-
9 ted the crime, misinformation provided to law enforcement as to the
10 identity of the person who committed the crime, or some other mistake on
11 the part of a witness or law enforcement as to the identity of the
12 person who committed the crime.
13 2. For purposes of this section, the term "law enforcement agency"
14 means the department of attorney general, the superintendent of the
15 state police or his/her designee, police officers, the division of crim-
16 inal justice services, a federal, state or local law enforcement agency
17 or police organization, and any agency, department, or bureau of the
18 United States government which has as one of its functions the gathering
19 of intelligence data.
20 3. For purposes of this section, the term "expunction of all official
21 records" means and includes, but is not limited to, any fingerprint,
22 photograph, DNA samples, physical measurements, or other record of iden-
23 tification, heretofore or hereafter taken by or under the direction of a
24 law enforcement agency or any other officer authorized by the laws of
25 this state, of a person under arrest.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD03397-01-3
A. 1935 2
1 4. If any person is named in a charge or arrested for any infraction
2 or crime as a result of another person using the identifying information
3 of the named person or mistaken identity, and the charge against the
4 named person is dismissed, the prosecutor or other judicial officer or
5 law enforcement agency who ordered the dismissal shall provide notice to
6 the court of the dismissal. The court shall then:
7 (a) order the expunction of all official records containing any
8 entries relating to the person's apprehension, charge, or trial;
9 (b) notify the person arrested that the charge was dismissed or that
10 no charges have been filed and that all official records have been
11 expunged; and
12 (c) order that the said entries shall be expunged from the records of
13 the court and direct all law enforcement agencies, the department of
14 corrections and community supervision, the department of motor vehicles,
15 or any other state or local government agencies identified by the peti-
16 tioner, or the person eligible for automatic expungement under this
17 subdivision, as bearing record of the same to expunge their records of
18 the entries. The clerk shall notify state and local agencies, including,
19 but not limited to, the division of criminal justice services, the
20 national crime information identity center and/or any other state or
21 federal agency which compiles, retains or collects any arrest or identi-
22 fying information of arrestees, of the court's order and that all
23 records transmitted or generated shall be expunged as provided herein.
24 The costs of expunging the records shall not be taxed against the peti-
25 tioner.
26 5. The department of motor vehicles shall expunge from its records
27 entries made as a result of the charge of conviction ordered expunged
28 under this section. The department of motor vehicles shall also reverse
29 any administrative actions taken against a person whose record is
30 expunged under this section as a result of the charges or convictions
31 expunged, including the assessment of driver's license points and driv-
32 er's license suspension or revocation. Notwithstanding any other
33 provision of law, the department of motor vehicles shall provide to the
34 person whose motor vehicle record is expunged under this section a
35 certified corrected driver history at no cost and shall reinstate at no
36 cost any driver's license suspended or revoked as a result of a charge
37 or conviction expunged under this section.
38 6. Where a charge or conviction is expunged under this section, the
39 division of criminal justice services and any other applicable state or
40 local government agency shall expunge its records. Those agencies shall
41 also reverse any administrative actions taken against a person whose
42 record is expunged under this section. Notwithstanding any other
43 provision of law, the normal fee for any reinstatement of a license or
44 privilege resulting under this section shall be waived.
45 7. Any insurance company that charged any additional premium based on
46 insurance points assessed against a policyholder as a result of a charge
47 or conviction that was expunged under this section shall refund those
48 additional premiums to the policyholder upon notification of the
49 expungement.
50 8. Any person arrested detained or otherwise identified as a suspect
51 and who is thereafter exonerated consistent with this section may deny
52 for any purpose that the arrest ever occurred and under no circumstances
53 shall such an arrestee be required to disclose the arrest for any
54 purposes including, but not limited to, any application for employment,
55 professional license, concealed weapons permit or the purchase of a
56 firearm or other weapon. No person as to whom such an order has been
A. 1935 3
1 entered under this section shall be held thereafter under any provision
2 of any law to be guilty of perjury, or to be guilty of otherwise giving
3 a false statement or response to any inquiry made for any purpose, by
4 reason of the person's failure to recite or acknowledge any expunged
5 entries concerning apprehension, charge, or trial.
6 9. Any such person arrested and not charged shall be entitled to the
7 provisions under this section regardless of any prior record of arrest
8 or conviction that may otherwise not be eligible for expungement.
9 § 2. This act shall take effect immediately.
