"Can I seal my criminal conviction in New York?" For years, our answer to this question was generally "no," but that's about to change. New York has just enacted a piece of legislation which will greatly benefit people with criminal records: As of October, 2017, CPL § 160.59 will allow people to apply for judicial sealing of misdemeanor and some felony convictions. This is an unprecedented development for New York, and one which the attorneys at Galluzzo & Arnone are looking forward to utilizing in order to achieve a fresh new start for our clients, both personally and professionally. Here are some of the highlights of this groundbreaking law:
- People with criminal records will soon be able to apply for sealing for as many as two convictions, one of which may be a felony, except that sealing will not be available for convictions involving most sex offenses, and class "A" and violent felonies. CPL § 160.59(2)(a);
- Anyone convicted of more than two crimes, or more than two felonies, will be ineligible. CPL § 160.59(3), as will those against whom any charges are pending. CPL § 160.59(5);
- Sealing will become available after a 10 year waiting period. In other words, you'll have to wait 10 years, counted from the date of the imposition of sentence, or the date of release from the latest period of incarceration; before you can file an application to expunge any records. CPL § 160.59(5);
- Once granted, sealing will render any records of conviction unavailable to the public, although they will remain available to law enforcement and some licensing agencies.
How can I get my records sealed?
Those eligibe under CPL § 160.59 will be required to make a formal application before the sentencing judge and possibly conduct a hearing where the District Attorney will be entitled to object. The application will be fairly detailed and will require an attorney to submit sworn allegations in support of sealing as well as prepare to rebut any information the prosecuting attorney submits in opposition to sealing.
Once the evidence is submitted, the Court will then weigh the following factors in determining whether or not to grant the application:
(a) the amount of time that has elapsed since the defendant’s last conviction;
(b) the circumstances and seriousness of the offenses 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 measured that the defendant has taken toward rehabilitation, such as participating in treatment programs, work, or school, 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;
(g) the impact of sealing the defendant’s record on public safety and upon the public’s confidence in and respect for the law.
What exactly does sealing mean?
If granted, sealing will mean that all "official records and papers relating to the arrests, prosecutions, and conviction, 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." CPL §160.59(8). The most obvious benefit will be that background checks run by prospective employers will yield negative results, effectively wiping the criminal conviction from the person’s record.
Sealing under § 160.59 will not be without exception, however, as the following entities will still be able to access records: courts, corrections agencies, the office professional medical conduct, federal and state law enforcement agencies, agencies with discretion to issue firearm licenses, those screening individuals for police/peace officer employment, and the Federal Bureau of Investigations in the context of firearms background checks. CPL 160.59(9).
The enactment of CPL § 160.59 is a huge breakthrough for New York. For the first time, people with criminal records will have the opportunity to wipe their record clean and start fresh; they'll be able to say confidentally that they have no criminal record, and most background checks will confirm as such. While the manner in which Judges exercise their discretion in response to sealing requests remains to be seen, it is apparent that a comprehensive legal effort made by an experienced criminal attorney will be required, since prosecutors are expected to push back heavily against most requests. In other words, applicants should prepare for some litigation in court, a relatviely small price to pay to cleanse a criminal record.
While CPL § 160.59 sealing will not be available until October, those who will be eligible at that time should not hesitate to consult an experienced attorney as soon as possible in order to begin gathering and preparing the required documents and crafting applications. The attorneys at Galluzzo & Arnone are already looking into the state, federal and potential immigration ramifications of this new law and how it will affect all of our clients, both new and old.
If you or a loved one wish to seal your criminal record, contact us immediately.