New NY Law - some Criminal Convictions can be Sealed

For the first time in the history of New York State, certain people with criminal convictions over 10 years old can now have their cases sealed. Call our office for a free consultation to see if you’re eligible to have a conviction sealed in New York.

Sealing does not mean your record is wiped clean. Expungement is the term for when a prior conviction is erased, effectively making it like it never happened. New York has never had expungement. As of October 2017, however, you might be able to have you case sealed.

When a case is sealed, the papers are made unavailable to most public and private entities. Employers, private companies and most government offices won’t see that there was ever a record. Some agencies, such as firearms licensing, the police and the courts, will still be able to find your record.

Not every conviction can be sealed. Sex crimes, A felonies, violent felonies, and people with more than one felony, or one felony and one misdemeanor, are not eligible.

For people whose convictions can’t be sealed, a Certificate of Relief from Civil Disability or a Certificate of Good Conduct can help you get a job and benefits despite having a record.

Effective October, 2017, the state’s first general adult conviction sealing authority will go into effect, allowing individuals with up to two convictions and only one felony to seal the records of conviction for all crimes other than sex offenses and class A and violent felonies after a 10-year waiting period.  See N.Y. Law  59, Part VVV, § 48 (2017) (to be codified at N.Y. Crim. Proc. Law § 160.59).

Eligibility

Individuals may seek sealing for up to two eligible convictions, only one of which may be a felony. N.Y. Crim. Proc. Law § 160.59(2)(a).  Multiple eligible convictions “committed as part of the same criminal transaction” are considered a single conviction. § 160.59(1)(a). Ineligible offenses include most sex offenses, all “violent felonies,” and all Class A felonies. § 160.59(1)(a).  Sealing is not available to individuals convicted of more than two crimes or more than one felony.  § 160.59(3)(h).  A 10-year waiting period applies, counted from the date of imposition of sentence, or the date of release from the latest period of incarceration (if applicable). § 160.59(5).  Individuals required to register as sex offenders and individuals who have exceeded the maximum allowable number of sealings under this section or the conditional sealing authority at N.Y. Crim. Proc. Law § 160.58 (applicable to diversion/drug treatment dispositions) are ineligible, as are those with pending charges or who have been convicted subsequent to the last conviction for which sealing is sought. § 160.59(3).

Procedure

Application is made to the court where the conviction for the most serious offense sought to be sealed occurred, or to the court where the individual was last convicted if all offenses for which sealing is sought are of the same class. N.Y. Crim. Proc. Law § 160.59(2)(a).  Among other requirements, the application must contain a sworn statement of reasons why sealing should be granted. § 160.59(2)(b)(v).  The application is assigned to sentencing judge if sealing is sought for a single conviction, and to the county/supreme court otherwise. § 160.59(2)(d).  The District Attorney must be served, and has 45 days to object to the application.  If there is no objection, the court may decide the application without a hearing. § 160.59(6).

Standard

N.Y. Crim. Proc. sec. 160.59(7):

In considering any such application, the sentencing judge or county or supreme court shall consider any relevant factors, including but not limited to:

(a)  the amount of time that has elapsed since the defendant’s last conviction;

(b) the circumstances and seriousness of the offense for which the defendant is seeking relief, including whether the arrest charge was not an eligible offense;

(c)  the circumstances and seriousness of any other offenses for which the defendant stands convicted;

(d) the character of the defendant, including any measures that the defendant has taken toward rehabilitation, such as participating in treatment programs, work, or schooling, and participating in community service or other volunteer programs;

(e)  any statements made by the victim of the offense for which the defendant is seeking relief;

(f) the impact of sealing the defendant’s record upon his or her rehabilitation and upon his or her successful and productive reentry and reintegration into society; and

(g)  the impact of sealing the defendant’s record on public safety and upon the public’s confidence in and respect for the law.

Effect

If sealing is granted, all “official records and papers relating to the arrests, prosecutions, and convictions, including all duplicates and copies thereof, on file with the division of criminal justice services or any court shall be sealed and not made available to any person or public or private agency.” N.Y. Crim. Proc. Law § 160.59(8).  Exceptions apply:  The records remain available to enumerated “qualified agencies,” including courts, corrections agencies, and the office of professional medical conduct; to federal and state law enforcement for law enforcement purposes; to state entities responsible for issuing firearm licenses; to employers for screening applicants for police officer/peace officer employment; and to the FBI for firearm background checks. § 160.59(9).  Additionally, law enforcement fingerprint records are not affected by the sealing order. § 160.59(8). Sealed convictions remain “convictions” for the purpose of sentence enhancement or establishing the elements of crime. § 160.59(10).

The New York State Human Rights Law, N.Y. Exec. Law § 296(16) was amended concurrent with the enactment of the sealing authority, prohibiting public and private employers and occupational licensing agencies from asking about, or taking adverse action (i.e., denying employment or licensure) because of, a sealed conviction.  See also Part III-A, below.

Conditional sealing of drug and other convictions upon completion of judicial diversion or drug treatment program

N.Y. Crim. Proc. Law § 160.58 (2010) provides for conditional sealing of certain felony drug and other specified convictions, as defined in § 220 of the penal law (sale of controlled substances in the first degree, Class B felony), § 221 (criminal sale of marijuana, Class C felony), and certain offenses listed in N.Y. Crim. Proc. Law § 410.91(5) (burglary, possession of stolen property, criminal mischief) upon completion of a judicial diversion program or a drug treatment alternative to prison or another judicially sanctioned drug treatment program of similar duration, requirements and level of supervision.   Sealing may also extend to up to three prior misdemeanors.  The procedure is set forth in N.Y. Crim. Proc. Law § 160.58(3):

At the request of the defendant or the district attorney of a county in which the defendant committed a crime that is the subject of the sealing application, the court may conduct a hearing to consider and review any relevant evidence offered by either party that would aid the court in its decision whether to seal the records of the defendant’s arrests, prosecutions and convictions. In making such a determination, the court shall consider any relevant factors, including but not limited to: (i) the circumstances and seriousness of the offense or offenses that resulted in the conviction or convictions; (ii) the character of the defendant, including his or her completion of the judicially sanctioned treatment program as described in subdivision one of this section; (iii) the defendant’s criminal history; and (iv) the impact of sealing the defendant’s records upon his or her rehabilitation and his or her successful and productive reentry and reintegration into society, and on public safety.  

Pre-plea diversion options

Authority for pre-plea judicial diversion is found in N.Y. Crim. Proc. Law §§ 216.00, .05, for persons charged with Class B and lesser felonies who have not been convicted of a violent offense in the past ten years, and no more than one violent felony.

“Adjournment in Contemplation of Dismissal” (ACD) is available for those charged with a misdemeanor. § 170.55.  Upon successful completion of a period of probation, the record is expunged:

The granting of an adjournment in contemplation of dismissal shall not be deemed to be a conviction or an admission of guilt. No person shall suffer any disability or forfeiture as a result of such an order. Upon the dismissal of the accusatory instrument pursuant to this section, the arrest and prosecution shall be deemed a nullity and the defendant shall be restored, in contemplation of law, to the status he occupied before his arrest and prosecution.