Expungement in New York – Sealing Criminal Records

by ECL Writer
Can You Expunge A Misdemeanor In New York?

Expungement is a legal process that allows individuals to clear their criminal record of certain past convictions or arrests. In the state of New York, the expungement process has been a topic of much discussion and debate in recent years. Advocates argue that expungement can provide individuals with a fresh start and new opportunities, while opponents argue that it can undermine the criminal justice system and public safety. In this article, Eastcoastlaws.com will explore the expungement process in New York, including who is eligible, what crimes can be expunged, and the potential benefits and drawbacks of seeking an expungement. We will also examine the current state of expungement laws in New York and the efforts underway to expand access to this process. Whether you are considering seeking an expungement or simply interested in learning more about this complex legal issue, this article aims to provide a comprehensive overview of the expungement process in New York.

What Is Expungement

The process of sealing or physically destroying documents that relate to a previous arrest or criminal conviction—or both—is known as expungement. Most employers do not require applicants to disclose prior convictions that have undergone the expungement process, and they should not be found during any private background checks or criminal record checks (the few notable exceptions to its nondisclosure benefit involve applications for certain professional licenses, including the state bar license required of lawyers as well as applications for certain law enforcement jobs which may require the applicant disclose any expunged arrest or conviction).

Additionally, a person who has had their criminal record expunged is treated as a first offender by the courts and law enforcement, and in some places, they may be qualified for repeated expungements over time. An expunged criminal conviction is regarded as nonexistent in life and on job applications, at least in theory.

Is Expungement Procedure Available In New York

Sadly, New York does not have a system in place that would allow someone with a prior felony or misdemeanor conviction to have their record of those crimes fully erased or expunged. The closest alternative to expungement is an order of termination, which is permitted by New York’s Criminal Procedure Rules 160.55 and allows for the sealing of prosecution papers and the destruction of arrest records for the majority of traffic infractions and criminal offenses, regardless of the outcome. However, the record of your arrest and conviction for felonies and misdemeanors is irrevocable.

Although the New York Assembly has not yet approved expungement processes, there are still other available options for protection against the professional and social repercussions of a criminal record. With some important exceptions, a court order for the conditional sealing of a criminal record offers many of the same advantages as expungement. First and foremost, only a very small number of people are eligible for a court order that conditionally seals arrest and conviction records, and these orders are only given out at the judge’s discretion. In New York, there are specific certificates of rehabilitation that, among other benefits, abolish work restrictions and reinstate lost civil rights following felony and/or misdemeanor convictions.

What Has CPL 160.59 Changed?

CPL 160.59 is a New York state law that was enacted in 2017 and allows for the sealing of certain criminal convictions. The law expanded the types of criminal convictions that are eligible for sealing, and also reduced the waiting period for sealing from 10 years to as little as one year after the completion of a sentence. Prior to the enactment of CPL 160.59, sealing was only available for certain non-criminal offenses and very limited criminal convictions. The law has since provided many individuals with the opportunity to seal their criminal records and move forward with their lives without the stigma of a criminal conviction. However, it is important to note that not all criminal convictions are eligible for sealing, and certain crimes, such as sex offenses and violent felonies, are not eligible for sealing under the law.

What Can Be Sealed Under The New Law?

For any crime other than sex offenses, Class A felonies, and violent felonies, courts may now choose to seal up to two convictions, only one of which may be a felony. This Act treats each eligible conviction that occurred as a result of a single transaction as a single conviction. CPL 160.59(1)(a) (a). Records will be sealed from the public when the defendant waits at least 10 years from the date of conviction or release from prison. In addition, the New York Human Rights Law was altered, making it illegal for employers and professional licensing organizations to inquire about or treat someone differently because of a sealed conviction.

So, for instance, a woman who committed a third-degree assault in 2004 but received a 2-year probationary period would be qualified to apply, as would a Brooklyn guy convicted of a misdemeanor DWI in 2002 who completed a 2-year probationary period.

What Cannot Be Sealed Under The New Law In New York?

While New York’s CPL 160.59 law provides individuals with the opportunity to seal certain criminal convictions, not all convictions are eligible for sealing. There are some types of criminal offenses that cannot be sealed under the new law, and it is important for individuals to understand these restrictions before pursuing the sealing process.

  • A sex offense under CPL 130, all the way from misdemeanor sexual misconduct (CPL 130.20), to felony rape (CPL 130.25-130.35). Also included in these crimes are sexual abuse (130.65), aggravated sexual abuse (130.70), and even female genital mutilation (130.85).
  • Sexual offenses under CPL 263 are also prohibited from being sealed under the law. These crimes involve sexual acts with a child, including the use of a child in a sexual performance, (CPL 263.10) or child porn (possessing an obscene sexual performance by a child) (CPL 263.11).
  • In addition to these sexually-based offenses, any offenses that require the defendant to register as a sex offender will not be eligible for a seal.
  • Murder can also never be sealed, along with the other charges in CPL 125, such as vehicular manslaughter (CPL 125.13), manslaughter (125.20), and even illegal abortion (125.45).
  • Violent felonies will not be sealed under the new law. The appropriate penal code section is CPL 70.02, which has a veritable laundry list of violent crimes for which this new law will not affect.
  • Any class A felony will not be sealed, nor will any conspiracy convictions where the underlying offense would not be eligible for sealing. So, for instance, if the individual is convicted only of conspiracy to murder, even if it was not completed, this crime would not be eligible to be sealed because the underlying offense (murder) is also not eligible to be sealed.
  • To the same end, any felony attempt to commit any underlying offense that is ineligible would also not be available to seal.

Who Is Eligible For Sealing Record In New York

In New York, individuals with certain types of criminal convictions are eligible to have their records sealed under the state’s CPL 160.59 law. Eligibility for sealing depends on a number of factors, including the type of offense, the amount of time that has passed since the completion of the sentence, and the individual’s criminal history.

Under CPL 160.59, individuals who have been convicted of certain misdemeanors, non-violent felonies, violations, and non-criminal offenses are eligible for sealing. Examples of eligible offenses include drug possession, petit larceny, and some property crimes. Certain traffic offenses, such as driving without a license or insurance, are also eligible for sealing.

Individuals who have been convicted of a non-violent felony offense must wait three years from the completion of their sentence before they can apply for sealing. Individuals who have been convicted of a misdemeanor offense can apply for sealing one year after the completion of their sentence, as long as they have not been convicted of any other crimes during that time. The waiting period for sealing may be longer for some offenses, and there are some offenses that are not eligible for sealing at all.

It is important to note that individuals with certain types of criminal convictions are not eligible for sealing under CPL 160.59. For example, individuals who have been convicted of a violent felony offense, such as murder, manslaughter, or kidnapping, are not eligible for sealing. Similarly, individuals who have been convicted of certain sex offenses, such as rape or sexual abuse of a minor, are also not eligible for sealing.

In order to have a criminal record sealed under CPL 160.59, individuals must file a petition with the court and demonstrate that they have successfully completed their sentence and have not been convicted of any other crimes during the waiting period. If the court grants the petition, the record will be sealed and will not be accessible to most members of the public, including employers and landlords.

What Is The Process To Seal A Record In New York?

Despite the fact that the law has been expanded, the criteria are still extremely detailed and intricate, so you will definitely need assistance from an attorney. The application will probably be rejected if a required component is absent. The court where the person was last convicted, or the court where the most serious offense was convicted if all the offenses to be sealed fall under the same category, will receive your application.

CPL 160.59(2)(a) (a). A copy of the certificate of disposition for any crime for which the defendant has been found guilty is the first piece of the extensive documentation needed for the application. Even arrests that end in non-criminal convictions fall under this category. For roughly $10 per, you can get this document from the clerk of the court where the conviction took place.

Next, you must attach a copy of any application to seal that has been filed elsewhere or at a separate time, as well as a sworn statement from the defendant stating whether they have already filed or plan to file an application to seal any other eligible offense. The sworn statement should also include the conviction that is being sought to be sealed, the reasons the sealing should be approved by the court, and any supporting materials.

Documents that demonstrate exemplary behavior and character, such as letters of recommendation, diplomas, prizes, or other evidence, may be helpful.

After serving the District Attorney, they have 45 days to object to the application. The court may decide whether or not to seal the records without a hearing if they do not protest.

How to Apply

The sealing of these records is not automatic. You need to do the paperwork and apply to the court:

  1. Request a Criminal Certificate of Disposition from the court.
    • Complete a separate request for each case you will be asking the court to seal.
    • Bring the completed form to the court. Use the locator box to find the court’s contact information
    • There is a fee of $5 for courts located outside of New York City, and a fee of $10 for courts located within the five boroughs of New York City.
  2. After you get your Certificate of Disposition from the court, complete the Sealing Application (this is also known as the Notice of Motion and Affidavit in Support).
    • Sign this form in front of a notary public.
    • Important! You should attach any evidence you have of proof of rehabilitation, like a certificate of relief from civil disabilities, verification of employment, community service, volunteer or charity work; educational transcripts; letters of recommendation or commendation from employers, teachers/professors, community leaders, charitable organizations, certificates of successful completion of a drug or alcohol treatment program, etc. Read more about getting Evidence of Rehabilitation.
  3. The District Attorney must be notified about your application. Make a copy of the Certificate of Disposition, the Sealing Application (Notice of Motion and Affidavit in Support), and any other supporting documents you’re including with your application. The copy of the papers can be served on the District Attorney’s Office by mail or by hand delivery.
  4. After the papers have been mailed or delivered to the District Attorney’s Office, the person who mailed or delivered the papers must fill out the Affidavit of Service and sign it in front of a notary public. If more than one District Attorney’s Office were served, a separate Affidavit of Service must be completed for each by the person who served them.
  5. Make a copy of all the papers for your own records.
  6. File the originals of the Sealing Application (Notice of Motion and Affidavit in Support), Affidavit of Service, Certificate of Disposition, and any other supporting documents with the court.
    • Important! These papers must be filed in court. Use the court locator to find the court’s contact information.
    • There is no fee to file these papers.
    • The papers must be filed in the court where the most serious conviction was entered. If both cases involve convictions of the same class, the motion should be filed in the court where the most recent conviction was entered

What Judges Consider Before Awarding Sealing Of Record In New York

Basically, the judge is directed to look at any ‘relevant’ factors, and they are given a lot of discretion. However, they should consider at least the following:

  • The amount of time since the last conviction;
  • The circumstances and seriousness of the offense that is the subject of the application as well as of any other offenses for which the defendant stands convicted;
  • The character of the defendant, including active measures like rehabilitation, therapy, community service, work, or school;
  • Statements from a victim of the offense for which the defendant is seeking relief;
  • The impact of sealing the record on public safety
  • The impact of sealing the record on the defendant’s rehabilitation and successful reentry into society.

Essentially, if the defendant has multiple offenses, even if minor ones, this is something the judge will have to consider, and which may need explaining before he or she decides to seal the defendant’s record.

Benefits Of Sealing A Record In New York

Sealing a criminal record in New York under CPL 160.59 can provide a number of benefits for individuals who have completed their sentences and are looking to move forward with their lives. Here are some of the main benefits of sealing a criminal record in New York:

  • Increased employment opportunities: Having a criminal record can often make it difficult to find employment, as many employers conduct background checks on job applicants. Sealing a criminal record can help remove this barrier to employment and increase job opportunities.
  • Improved housing options: Similarly, having a criminal record can make it difficult to find housing, as many landlords also conduct background checks on potential tenants. Sealing a criminal record can help individuals access a wider range of housing options.
  • Enhanced educational opportunities: Some educational institutions may also conduct background checks on applicants, and a criminal record can potentially limit educational opportunities. Sealing a criminal record can help individuals access a wider range of educational opportunities.
  • Restoration of civil rights: Certain criminal convictions can result in the loss of certain civil rights, such as the right to vote or serve on a jury. Sealing a criminal record can help restore some of these rights, which can be important for individuals who want to fully participate in civic life.
  • Improved social standing: Having a criminal record can also impact an individual’s social standing and reputation. Sealing a criminal record can help individuals avoid the stigma and discrimination that can come with having a criminal record.

It is important to note that sealing a criminal record does not necessarily mean that the record will be completely inaccessible. Some government agencies, such as law enforcement and some licensing boards, may still be able to access sealed records. However, for most purposes, a sealed record is considered confidential and cannot be accessed by most members of the public.

Overall, sealing a criminal record in New York can provide a number of benefits for individuals who are looking to move forward with their lives and put their past behind them.

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