- Consolidated Laws - Family Court
PART 7
SECURING TESTIMONY AND RECORDS
Section 370.1. Securing the attendance of witnesses; securing certain
testimony.
375.1. Order upon termination of a delinquency action in favor
of the respondent.
375.2. Motion to seal after a finding.
375.3. Expungement of court records.
S 370.1. Securing the attendance of witnesses; securing certain
testimony. 1. The provisions of article six hundred twenty of the
criminal procedure law concerning the securing of attendance of
witnesses by material witness order shall apply to proceedings under
this article.
2. Article six hundred sixty, six hundred seventy and six hundred
eighty of the criminal procedure law concerning the securing of
testimony for use in a subsequent proceeding, the use of testimony given
in a previous proceeding and the examination of witness by commission
shall apply to proceedings under this article.
3. The provisions of the uniform act to secure attendance of witnesses
from without the state in criminal cases, as incorporated in article six
hundred forty of the criminal procedure law, shall apply to proceedings
under this article.
S 375.1. Order upon termination of a delinquency action in favor of
the respondent. 1. Upon termination of a delinquency proceeding against
a respondent in favor of such respondent, unless the presentment agency
upon written motion with not less than eight days notice to such
respondent 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 eight days notice to such respondent determines that
the interest of justice require otherwise and states the reason for such
determination on the record, the clerk of the court shall immediately
notify the law guardian or counsel for the child, the director of the
appropriate presentment agency, and the heads of the appropriate
probation department and police department or other law enforcement
agency, that the proceeding has terminated in favor of the respondent
and, unless the court has directed otherwise, that the records of such
action or proceeding, other than those destroyed pursuant to section
354.1 of this act, shall be sealed. Upon receipt of such notification
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, the prosecution and the
probation service proceedings, including all duplicates or copies
thereof, on file with the court, police agency, probation service and
presentment agency shall be sealed and not made available to any person
or public or private agency. Such records shall remain sealed during
the pendency of any motion made pursuant to this subdivision.
2. For the purposes of subdivision one, a delinquency proceeding shall
be considered terminated in favor of a respondent where:
(a) the petition is withdrawn; or
(b) the petition is dismissed under section 315.1 or 315.2 and the
presentment agency has not appealed from such order or the determination
of an appeal or appeals from such order has been against the presentment
agency; or
(c) the petition has been deemed to have been dismissed under section
315.3 and the presentment agency has not appealed from such order or the
determination of an appeal or appeals from such order has been against
the presentment agency; or
(d) the petition is dismissed without prejudice under subdivision four
of section 325.3 and the presentment agency has not appealed from such
order or the determination of an appeal or appeals from such order has
been against the presentment agency; or
(e) the entire petition has been dismissed under subdivision two of
section 345.1; or
(f) the petition is dismissed under subdivision two of section 352.1;
or
(g) prior to the filing of a petition, the probation department has
adjusted the case or terminated the case without adjustment; or
(h) prior to the filing of a petition the presentment agency chooses
not to proceed to petition; or
(i) the petition is dismissed pursuant to a motion made in accordance
with subdivision eight, nine or ten of section 332.1.
3. Records sealed pursuant to subdivision one shall be made available
to the respondent or his designated agent and the records and papers of
a probation service shall be available to any probation service for the
purpose of complying with subdivision four of section 308.1.
4. If prior to the filing of a petition the presentment agency elects
not to commence a delinquency action it shall serve a certification of
such disposition upon the appropriate probation service and the
appropriate police department or law enforcement agency, which, upon
receipt thereto, shall comply with the provision of subdivision one in
the same manner as is required with respect to an order of the court.
5. If the probation service adjusts a delinquency case it shall serve
a certification of such disposition upon the appropriate police
department or law enforcement agency which, upon receipt thereof, shall
comply with the provisions of subdivision one in the same manner as is
required thereunder with respect to an order of a court.
6. A respondent in whose favor a delinquency proceeding was terminated
prior to the effective date of this section may upon motion apply to the
court, upon not less than twenty days notice to the presentment agency,
for an order granting him the relief set forth in subdivision one, and
such order shall be granted unless the presentment agency demonstrates
to the satisfaction of the court that the interests of justice require
otherwise. A respondent in whose favor a delinquency action or
proceeding was terminated as defined by subdivisions four and five,
prior to the effective date of this section, may apply to the
appropriate presentment agency or probation service for a certification
as described in such subdivisions granting him the relief set forth
therein and such certification shall be granted by such presentment
agency or probation service.
S 375.2. Motion to seal after a finding. 1. If an action has resulted
in a finding of delinquency pursuant to subdivision one of section
352.1, other than a finding that the respondent committed a designated
felony act, the court may, in the interest of justice and upon motion of
the respondent, order the sealing of appropriate records pursuant to
subdivision one of section 375.1.
2. Such motion must be in writing and may be filed at any time
subsequent to the entering of such finding. Notice of such motion shall
be served upon the presentment agency not less than eight days prior to
the return date of the motion. Answering affidavits shall be served at
least two days before such time.
3. The court shall state on the record its reasons for granting or
denying the motion.
4. If such motion is denied, it may not be renewed for a period of one
year, unless the order of denial permits renewal at an earlier time.
5. The court shall not order the sealing of any record except as
prescribed by this section or section 375.1.
6. Such a motion cannot be filed until the respondent`s sixteenth
birthday.
S 375.3. Expungement of court records. Nothing contained in this
article shall preclude the court`s use of its inherent power to order
the expungement of court records.
