New York's New Criminal Record Sealing Law
A look at New York's new criminal record sealing law, CPL § 160.59.
IntroductionNew York (unlike California, for instance) has never permitted "expungement" of criminal convictions, i.e. total erasure of conviction records. New York law has, however, long permitted the sealing of certain records: violation-level offenses, adjournments in contemplation of dismissal, records from a case that was dismissed favorably, etc. That said, misdemeanor and felony convictions were never eligible to be sealed and thus stayed on a person's record for life - until now.
In 2017, Governor Cuomo signed a new law permitting the sealing of certain misdemeanor and felony convictions, which can be found at Criminal Procedure Law 160.59. The Legislature appears to consider this newfound sealing of records of such important public policy that the law explicitly prevents prosecutors in the future from requiring defendants to waive eligibility for sealing as part of a guilty plea. This article breaks down the details of the new sealing law.
Who/What Is Eligible To Be Sealed?Any person with no more than two total criminal convictions, only one of which may be a felony, may seal up to two eligible convictions - again, only one of which may be a felony. For purposes of counting the number of total criminal convictions, multiple convictions "committed as part of the same criminal transaction" count as a single conviction. So, for example, if someone pleaded guilty to two counts of a single indictment that charged both (1) grand larceny and (2) identity theft all based on the same offense conduct, those two convictions are counted as a single conviction. A plea to those same two counts in a single indictment that charges counts based on separate conduct (separate incidents on separate dates, for example) would, however, result in two separate convictions for the purpose of sealing.
At least ten years must have passed since the sentence was imposed for the latest eligible conviction, and, if a period of incarceration was imposed as the sentence (e.g. the defendant was directly sentenced to jail) or the defendant spent any period incarcerated after the conviction (e.g. the defendant was violated on an initial probation sentence and re-sentenced to jail), the ten-year period runs from the defendant's release from incarceration, or excludes an amount of time equal to the time spent incarcerated. That sounds complicated but, in reality, just means that the ten-year period must take into account any jail time the defendant underwent as part of the sentence. It appears that only the time actually served is counted, not the imposed amount of time - both county (local) and state prison sentences have time credits for good behavior.
The effect of sealing is that the pertinent records shall "not made available to any person or public or private agency." The records, however, may be released to certain "qualified agencies," including law enforcement, courts, entities responsible for issuing firearms licenses, etc. Additionally, sealed convictions are still considered "convictions" in the future for purposes of sentencing enhancements or establishing elements of crimes, where applicable. Thus, for example, an individual who successfully seals two misdemeanor DWI convictions (from perhaps 10 and 11 years ago, respectively) could nevertheless be charged with a 3-in-15 year class D felony if he or she were to be arrested for DWI again within 15 years from the first conviction because those sealed convictions are still counted as predicate convictions.
Who/What Is Ineligible?Certain convictions are ineligible for sealing. They are:
-Sex offenses defined in Penal Law article 130
-Offenses requiring registration as a sex offender
-Sexual performance by a child offenses defined in Penal Law article 263
-Class A felonies
-Violent felonies defined in Penal Law 70.02
-Felony conspiracies to commit an ineligible offense
-Felony attempts to commit an ineligible offense
So, for instance, attempted criminal possession of a weapon in the second degree (PL 110/265.03) is ineligible to be sealed on two grounds: it is a felony attempt to commit a violent felony as defined under CPL 160.59, and PL 70.02 separately defines an attempt to commit a class C violent felony as a class D violent felony. Interestingly, though, PL 70.02 defines a limited number of class E violent felonies, and because an attempt to commit one of these offenses would be a class A misdemeanor (and thus not an "attempt [that] is a felony" as defined in CPL 160.59), these limited attempt convictions would be eligible for sealing under CPL 160.59. Likewise, conspiracy in the fifth degree, PL 105.05 (conspiracy to commit a felony), would appear eligible to be sealed because the conspiracy, itself, is not a felony offense.
In addition, an application will be denied if there is an undisposed of arrest or charge pending at the time of application, or if you were convicted of any crime after the date of conviction for the last conviction sought to be sealed, or if you have already exceeded the maximum number of misdemeanors to be sealed under the judicial diversion conditional sealing statute (CPL 160.58).
How Do I Apply?A written application must be made to the court where the most serious conviction occurred, or, if all convictions were of the same level, the court where the defendant was last convicted. An application must include (1) certificate(s) of disposition for the conviction(s), (2) a sworn statement as to whether any other application has been (or intends to be) filed for sealing, (3) a copy of any other sealing application(s) made, (4) sworn statements regarding why the court should grant the sealing application, and (5) any documentation relevant to the reasons why the convictions should be sealed.
The application must be served on the relevant county District Attorney, and proof of service attesting to this must be filed. The District Attorney then has 45 days to object to the application. If such an objection is filed, the court may hold a hearing on the matter.
Why Hire A Lawyer?You can certainly submit an application to seal convictions pro se, i.e. without the use of a lawyer. However, a lawyer's assistance can greatly increase the application's chances of success. Why? Because, at heart, the application is an argument about why conviction(s) should be sealed; there is no automatic requirement the court seal the convictions just because a defendant asked. The process also provides the opportunity for the District Attorney to object, which can result in the application undergoing a hearing before a judge. An attorney's knowledge of procedure, skill at argument, and familiarity with the court, judge, and/or prosecutor can be a substantial asset in overcoming objections or putting together an application that impresses the court upon receipt. The fee charged for a lawyer's assistance in a sealing application should be thought of as a small investment to removing a lifelong stigma caused by criminal convictions, which, as those currently convicted know, can result in lessened employment opportunities or denial of various benefits.