If you commit a crime, it can feel like it haunts you forever – anytime someone runs a background check on you, a minor crime that was committed even decades ago would pop up, affecting one’s ability to get a job, or rent property. Before, very few individuals got the privilege of sealing their records from the public. Most convictions stayed on a person’s record for life. However, New York Governor Cuomo just recently authorized courts to seal non-violent criminal convictions more than 10 years old after he signed new legislation into effect. New York Criminal Procedure Law (“C.P.L”) §160.59
- What does it mean to seal or expunge a record?:
Expungement means that the records associated with the crime are destroyed, and your conviction is vacated from the record. In New York, there is no ‘expungement’ statute. But, defendants can apply to have their records sealed, which is – practically speaking – the same thing. Once given the right to have records sealed, then only a limited number of people can access your file and records. These records include things like fingerprint cards, arrest photos, DNA samples and even the court file. Some law enforcement officers and prosecutors may be able to access your file in the future, but a member of the public cannot.
- What has CPL 160.59 changed?:
Previously, the law allowed only minor violations (non-conviction records and drug treatment dispositions), traffic infractions, and juvenile convictions to be sealed. Misdemeanor and felony convictions could not be sealed in New York. Now, the law which takes place as of October 7, 2017, allows both misdemeanors and all but very serious felonies to be sealed off – one of the most progressive and broad record-closing laws in the country. The minimum waiting period is 10 years since the last conviction, from the time of the sentence or from the time of release from jail, whichever occurred last.
- What can be sealed under the new law?:
Courts will now have the discretion to seal up to two convictions, with only one that can be a felony, for any crime other than sex offenses, Class A felonies, and violent felonies. Multiple eligible convictions that were committed as part of the same transaction are considered to be one conviction under this statute. CPL 160.59(1)(a). The requirement is that the defendant must wait at least 10 years from the date of conviction or release from prison, and then records will be sealed from the public. On top of this, the New York Human Rights Law was also amended, which prevents employers and occupational licensing agencies from asking about or discriminating against individuals for a sealed conviction. So, for example, a woman who committed an assault in the 3rd degree in 2004, but was sentenced to probation for 2 years would be eligible to apply, as would a Brooklyn man convicted of a misdemeanor DWI conviction in 2002 who served 2 years’ probation.
- What cannot be sealed under the new law?:
Generally speaking, sexual offenses and violent crimes will still not be able to be sealed under the law. This includes:
- 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.
- What is the process to seal a record?:
While the law has been expanded, the requirements are still fairly specific and complex, and you will probably need an attorney to help. If the application is missing an element, it will likely be denied. You will make an application to one of two courts: either where the conviction for the most serious offense occurred, or the court where the individual was last convicted if all the crimes to be sealed are within the same class. CPL 160.59(2)(a). The application requires a lot of documentation – first, a copy of the certificate of disposition for any offense for which the defendant has been convicted. This includes even arrests that result in non-criminal convictions. You will be able to get this document from the Clerk of Court where the conviction occurred for about $10 each. Next, you must include a sworn statement of the defendant indicating whether he or she has filed, or intends to file, an application to seal any other eligible offense, as well as a copy of any application to seal that has been filed elsewhere, or at a different time. The sworn statement should also include the conviction that is being requested as sealed, and why the court should grant the sealing, along with supporting documentation. Documents that might help would be things like letters of recommendation, educations certificates, awards, or anything else that shows good conduct and character. Finally, the District Attorney must be served, and they will have 45 days to object to eh application. If they do not object, then the court can decide whether or not to seal the records without a hearing. CPL 160.59(6). A spokeswoman for the Manhattan DA Cyrus Vance, Jr. is reported as saying that they do “not anticipate having to challenge the sealings, except on rare occasions.” Overall, the New York City area district attorneys appear to be welcoming to the change, assigning teams to answer questions and sort through applications over the next few months. One Brooklyn D.A. agrees that an old conviction for a nonviolent or minor crime should not prevent people from moving on with their lives.
- What will the judge look at in deciding to award my application?:
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; and - 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:
All official records concerning your conviction, including your arrest and accompanying documents, are sealed. The only exceptions to this rule are that some members of ‘qualified agencies' will have access. For example, law enforcement will be able to review your records if you ever get arrested again in the future. Courts will also have access, as will the police officer employment agency, and the state entities responsible for issuing firearm licenses. Notably, anyone who is not a member of this rather limited group is prohibited from either securing any information about, or even making inquiries into, your sealed criminal conviction.
- Is it worth the time and expense?:
If you are an individual who committed a nonviolent crime a long time ago, have a steady job, stabilizing influences in your life like children and family, have held down a steady job and have made significant and tangible steps to become a person of good character and conduct, then yes – it absolutely is. The judge will be more likely to grant your application to seal, and any record of your past will be blocked from public access. Your record will no longer show up in background checks for leasing applications, job applications or even credit checks.
- Do I Need a Lawyer?:
A lawyer is not required for this kind of application. However, the contents of the application are specific and detailed, and failure to include any element would result in a denial, wasted fees and wasted time. Additionally, the attorney will be able to confirm whether or not you are eligible to submit an application. Hiring an experienced criminal law firm like The Blanch Law Firm will help give you peace of mind. Our attorneys will know how to gather the appropriate documents to support your case. We will be able to draft a persuasive statement with your help to convince the judge that your application to seal deserves to be granted. We will ensure that it is filed correctly, and served upon the appropriate entities before setting the application for a hearing. Sealing criminal records is a life-changing opportunity. A lawyer will absolutely ensure that there are no mistakes in allowing you to finally move on with your life and pursue bigger dreams.
- Looking Ahead:
The New York State Bar Association, who has spearheaded this initiative, hopes that other states and the federal government will soon follow suit in making their sealing and expungement laws more progressive. The law is brand new, so there has been no study on whether it has impacted communities with levels of higher former convicts; however, agencies and officials hope that the law will create new opportunities, particularly in the job market, for convicts who have since attempted to fully reintegrate into their communities but are hampered from advancing in their careers because of a decades-old mistake. A New Mexico bill died on the governor’s desk after making its way through the legislative bodies. The governor cited the public’s right-to-know in explaining her rationale.
There is currently no federal law on file allowing expungements or the sealing of criminal records, despite the fairly controversial case out of New York, Doe v. United States. The case was ultimately overruled by the appellate court, but a federal judge expunged the conviction of a woman who had been sentenced by him 13 years previously. Judge John Gleeson of the Eastern District of New York commented that the defendant’s old conviction had hampered her employment opportunities, prevented her from caring for her family, and essentially served as a constant threat to her ability to remain a law-abiding member of society. She has to turn to public benefits as a result of her minor, nonviolent offense over a decade earlier. The judge noted that this was a problem across the country, sentencing convicts not just to prison for their offense, but also to a lifetime of poverty and strife long after their time had been served.
The team at the Blanch Law Firm stands ready to assist you if you want to start the process in applying to seal your records. We are fastidious and detailed, experienced with the justice system of New York. We would welcome the opportunity to assist you in officially closing the chapter on a part of your past and move on for good.