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Sealing of Records Following a Conviction of a Violation or Traffic Infraction in New York

Posted By Galluzzo & Arnone LLP || 12-Nov-2009

The New York Criminal Procedure Law sets forth a mechanism by which certain records relating to cases resulting in convictions of violations, such as Disorderly Conduct, PL 240.20, or traffic infractions, such as Unlicensed Driving, VTL 509, are either returned to the person, destroyed, or sealed. CPL 160.55. As always, this entry meant to be informative, but not a substitute for the advice of experienced criminal defense attorneys.

It should be noted from the outset that this particular sealing provision does not apply to (i) loitering violations under CPL 240.35, (ii) loitering for prostitution violations under CPL 240.37, or (iii) DWAI violations under VTL 1192(1).

The sealing, return, or destruction of records relating to the arrest or prosecution is then effected, by and large, by operation of law. The following rules apply generally to violation or traffic infraction convictions, but special rules may apply in cases involving certain certain traffic and alcohol-related violations.

RULE 1: CLERK OF COURT IMMEDIATELY NOTIFIES POLICE AND STATE CRIMINAL JUSTICE OF THE TERMINATION BY SUCH CONVICTION

After the criminal action or proceeding is terminated, the clerk of the court where the proceeding was terminated is required to “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 by such conviction.” CPL 160.55(1).

Exception: In certain cases, either the prosecuting attorney or the court, on its own motion, may, upon five days’ notice to the person or his or her attorney will move that the interests of justice require that the termination not be noticed to the police or state criminal justice. In those cases, the status quo will be maintained unless and until the motion is decided otherwise. CPL 160.55(1).

RULE 2: POLICE OR STATE CRIMINAL JUSTICE DESTROYS OR RETURNS ITS OWN COPIES OF PHOTOGRAPHS AND FINGERPRINTS FORTHWITH

After the appropriate investigative or criminal justice agency receives the notification from the clerk, “every photograph of such person . . . and palmprints and fingerprints taken or made of such person . . . in regard to the proceeding terminated, and all duplicates and copies thereof [with certain exceptions discussed below] . . . 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 . . . .” CPL 160.55(1)(a).

Exception: The CPL provision carves out two instances in which a law enforcement agency that receives a termination notification will NOT destroy or return photos and fingerprints, these are: (i) digital fingerprints maintained pursuant to subsection (e), and (ii) palmprints or fingerprints taken in harrassment (PL 240.26) cases where the violation was committed against a member of the same family or household.

RULE 3: POLICE OR STATE CRIMINAL JUSTICE FORMALLY REQUESTS IN WRITING THAT ALL COPIES THEY TRANSMITTED OR FORWARDED TO ANY UNITED STATES OR OTHER STATE AGENCY BE DESTROYED OR RETURNED

Oftentimes a police department in possession of photographs such as mugshots or fingerprint material to the FBI or another federal agency or to another state’s law enforcement agencies. In those cases, the New York state arresting agency, or state criminal justice must formally request the return of all such material.

RULE 4: ALL POLICE RECORDS AND PAPERS RELATING TO THE ARREST OR PROSECUTION ARE SEALED

While fingerprints and photographs must be either returned or destroyed (absent the applicability of an exception), the “official records and papers” concerning the case are merely sealed. The sealing is relatively secure, however, in that the statute specifically states that such records “shall be sealed and not made available to any person or public or private agency.” CPL 160.55(c).

Exception: The records and papers may be made available to (i) a prosecutor in a case where a defendant has made a motion pursuant to CPL 170.56 or 210.46 (motion for adjournment in contemplation of dismissal [“ACD”] in cases involving marijuana); (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,” (iii) a firearms-licensing agency from any state who asks for it; (iv) the New York State Division of Parole where the arrest was made while the person was on parole or the probation department when the person was on probation, (iv) generally speaking, law enforcement, when the conviction was for a harassment violation (PL 240.26) committed against a member of his or her own household, as that is defined in CPL 530.11 and determined in CPL 170.10. There are also special sealing rules that apply to certain DWAI violations and loitering violations.

It should be noted, however, that the court file itself may still be accessible to outside parties. Thus, although it may be difficult to find, such a file may be viewed by a person with knowledge of some of the details of the occurrence, such as the date of the occurrence or the arrest number.

If you have received a dismissal or a conviction of a non-criminal offense, such as a violation or traffic infraction in New York, you should consider using an experienced attorney can help you contact the New York State Criminal Justice Department to ensure that your records are properly sealed.

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