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.”
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
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
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.
desk appearance ticket,
expungement new york,
expungment new york,
new york sealing,
new york sealing statutes,