LAW OFFICES OF MICHAEL POLLOK, PLLC
THE NEW YORK LAW JOURNAL
June 20, 2017
The recent victory for Raise the Age advocates came with a potential added benefit for New Yorkers of all ages. Appended to reforms aimed at more fairly dealing with the state's juvenile population, is Criminal Procedure Law §160.59. The statute provides for the sealing of past criminal convictions, under certain limited criteria, and is an attempt to bring New York up to speed with the majority of states on the question of just how long someone should be haunted by isolated mistakes in their past.
The law goes into effect this October and will allow people to apply for the sealing of up to two criminal convictions.
One of those convictions can be a felony provided it's not a violent felony, a defined sex felony, or an A-level drug conviction. All misdemeanors other than forcible touching and sexual abuse are eligible for sealing. However, to be eligible, the conviction must be more than ten years old and the person must not have had any intervening criminal convictions or pending criminal charges.
The sealing law could affect tens of thousands of now law-abiding New Yorkers who suffer many collateral consequences from old convictions. These collateral consequences can range from being denied employment, certain licenses, housing, education, and critical loans. It is legalized discrimination that disproportionately affects our most vulnerable citizens and until now it has been inexorable.
Under the statute, "sealing" means that, with some exceptions, all official records and documents pertaining to the sealed conviction will not be made available to any person or private agency. Background checks by nongovernmental private employers would not reveal the convictions. However, state and federal agencies will still have access to the information.
The law will go into effect two years after former Eastern District Judge John Gleeson articulated the injustice of systems that permit the implacable permanence of all criminal records. Writing in Doe v. United States, 110 F. Supp. 3d 448 (EDNY 2015), in support of his decision to expunge a fraud conviction, Judge Gleeson encapsulated the sentiment behind the expungement and sealing movement when he noted that:
There is a growing recognition that the adverse employment consequences of old convictions are excessive and counter-productive. Doe's criminal record has prevented her from working, paying taxes, and caring for her family, and it poses a constant threat to her ability to remain a law-abiding member of society. It has forced her to rely on public assistance when she has the desire and the ability to work. ... There is no justification for continuing to impose this disability on her. I sentenced her to five years of probation supervision, not to a lifetime of unemployment. As commendable and well-reasoned as Judge Gleeson's decision was, it was subsequently overturned by the U.S. Court of Appeals for the Second Circuit. Federal convictions remain nearly impossible to expunge or seal.
Under New York's new statute, mere eligibility for sealing does not mean automatic sealing. Those seeking relief must meet all of the statutory requirements before applying to the sentencing judge. Provided the applicant is not statutorily barred from attaining sealing, the district attorney's office will be given the opportunity to oppose. If they oppose the sentencing judge "shall" conduct a hearing on the sealing. At the hearing, the judge may consider items such as:
• The amount of time elapsed since last conviction;
• The initial arrest charge and the seriousness of the offense;
• The seriousness of other convictions;
• The character of the defendant, including rehabilitation and treatment measures as well as work, schooling, and volunteer programs;
• Victim statements;
• The impact of sealing with regard to the defendant;
• The impact of sealing with regard to public safety.
If there is no opposition by the district attorney's office then the application must be granted and the conviction(s) sealed. Apparently, a standardized form will be created by the chief administrator of the courts to facilitate these applications.
It's important to note that none of the above constitutes a classic expungement statute of the kind seen in other states. Such statutes, which exist in states like Vermont, Rhode Island, and Kansas, among others, can result in the actual deletion of a criminal record as opposed to merely sealing it. So while this new sealing statute is certainly a step n the right direction, it pointedly does not allow someone to completely clear their name in the way an expungement statute would. It's difficult to see why New York, with its veneer of progressiveness, has never embraced this further step. But, at a minimum, advocates for true expungement would seem to have cause for optimism.
For criminal defense attorneys, the new sealing statute means both opportunity and responsibility. CPL §160.59 will create a new practice area attorneys should be aware of so that they may effectively advise clients of its potential benefits. It may also create a professional responsibility to identify and inform suitable candidates for this novel relief. Beyond that, skillful litigation may be required, especially in those cases that result in a hearing.
Regardless of how legal practice evolves in response, clients can now be advised that the adverse consequences arising from a conviction may not be permanent; that a mistake, even a criminal one, need not be a specter that haunts them for the rest of their lives.
Travis Talbot is an attorney with the special litigation unit of New Yok County Defender Services
THE RAISE THE AGE LAW
On April 10, 2017, Governor Cuomo signed into law “Raise the Age” legislation that was included as part of the State Budget. It can be found in A-3009c/S-2009c Part WWW.
KEY COMPONENTS OF THE LEGISLATION
The presumptive age of juvenile accountability is raised for 16 year olds effective 10/1/18 and for 17 year olds
effective 10/1/19. Except as otherwise noted, all components described below are pursuant to this timeline.
The law will change cases for 16-17 year olds in the following ways:
Parents must be notified when their children are arrested.
Questioning of youth must take place in age-appropriate settings, with parental involvement (including with regards
to waiving Miranda rights), and for developmentally appropriate lengths of time.
The vast majority of cases of 16-17 year olds will ultimately be heard in the Family Court, either originating there or
being transferred there from the new Youth Part of the adult criminal court.
All misdemeanor cases (other than vehicle and traffic law misdemeanors) will be heard in Family Court pursuant to
the Family Court Act. This includes Family Court Act procedures for adjustment and confidential records.
All felony cases will start in the Youth Part of the adult criminal court.
All non-violent felonies will be transferred from the Youth Part to the Family Court unless the District Attorney (DA)
files a motion within 30 days showing “extraordinary circumstances” as to why the case should remain in the Youth Part. If DA files motion, there can be a hearing and the Judge must decide within 5 days of the hearing or motions whether to prevent the transfer of the case to Family Court.
Violent felonies can also be transferred from the Youth Part to the Family Court. If the charges do NOT include the accused displaying a deadly weapon in furtherance of the offense, causing significant physical injury, or engaging in unlawful sexual conduct, the case will transfer to Family Court unless the DA files a motion within 30 days showing “extraordinary circumstances” as to why the case should remain in the Youth Part. If the charge does include an element listed above, removal to Family Court is only possible with consent of the DA. Vehicle and Traffic Law cases and Class A felonies other than Class A drug offenses cannot be transferred.
16 and 17 year olds whose cases remain in the Youth Part will be referred to as “Adolescent Offenders.” Adult sentencing will apply, but the Judge must take the youth’s age into account when sentencing. Adolescent Offenders are eligible for Youthful Offender treatment, as is the current law with respect to 16 and 17 year olds charged as adults.
Adolescent offenders may voluntarily participate in services while their case is pending. Violations:
Violations will be heard in adult criminal/local courts, as is the current law.
Youth whose cases are heard in the Family Court will be processed pursuant to existing Juvenile Delinquency (JD)
laws, which includes the opportunity for adjustment. They will not have a permanent criminal record.
Youth Part of Adult Court:
New “Youth Parts” will be created. All 13-15 year old Juvenile Offenders and all 16-17 year Adolescent Offenders
will have their cases in the Youth Part.
Family Court judges will preside over cases in the Youth Parts.
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No 16 or 17 year old will be sentenced to or detained in a facility with adults. To the extent practicable, no youth under 18 will be held at Rikers by 4/1/18 and as of 10/1/18, a full prohibition against youth under the age of 18 being held at Rikers will be in effect.
Youth whose cases are heard in Family Court will be detained or placed in OCFS-operated, OCFS-licensed, or ACS facilities (including Close to Home), as Juvenile Delinquents currently are.
Adolescent Offenders who are detained pre-trial will be held in a specialized secure juvenile detention center for older youth, which will be certified and regulated by OCFS in conjunction with the state commission of correction. Judges have the discretion to order that Adolescent Offenders who are sentenced to less than a year serve such sentences in a specialized juvenile detention center for older youth.
Adolescent Offenders who are sentenced to state imprisonment will be placed in an Adolescent Offender facility developed by the state with enhanced security managed by DOCCS with the assistance of OCFS.
Anyone convicted of an eligible offense in an adult court may seek to have his/her record sealed pursuant to C.P.L. § 160.59 after ten years from the imposition of the sentence or discharge from incarceration, whichever is latest. Violent felonies, sex offenses, and Class A felonies are not eligible offenses. In addition, sealing is only available for people who have no more than 2 convictions, one of which may be for a felony.
The court will create a standardized form for a person to use to apply for sealing. There will be no fee for applying.
Raise the Age Implementation Task Force
The Governor will appoint members of a Task Force to coordinate the implementation of these changes.
The Task Force will issue a report on planning and implementation one year after the effective date (April 2018) and
after an initial year of implementation (by August 2019).
Sealing Provisions: People may begin to apply for sealing 180 days after enactment (10/6/17).
Raise the age for 16 year olds: 10/1/18.
Raise the age for 17 year olds: 10/1/19.
Sections related to state reimbursement to the counties for probation are effective 4/1/18.
Sections related to reimbursement for detention and alternative to detention are effective 10/1/18.
Elimination of state support for detained PINS will start 1/1/2020.
The Youthful Offender (YO) laws remain the same.
New York State Assembly Chart Summarizing Court Processing[page2image23376] [page2image23536] [page2image23696] [page2image23856] [page2image24016] [page2image24176] [page2image24336]
IMPORTANT CHANGE IN THE LAW ALERT: The Law Offices of Michael Pollok, PLLC is very pleased to announce that, beginning in the Fall of 2017, we will be offering legal services to file for the expungement of prior criminal convictions. The criteria for bringing such motions are discussed in a recent article in The New York Law Journal and in the statute itself, Criminal Procedure Law Section 160.59. Please call us at 845-758-3676 or 212-634-9121 to discuss expungement of your previous conviction if at least ten years have elapsed since the imposition of your sentence or completion of your sentence if you were incarcerated or a "split sentence" of incarceration and probation was imposed. See CPL 160.59(5).
New York State Criminal Procedure Law § 160.59 Sealing of certain convictions, NY CRIM PRO § 160.59
© 2017 Thomson Reuters. No claim to original U.S. Government Works. 1
McKinney's Consolidated Laws of New York Annotated
Criminal Procedure Law (Refs & Annos)
Chapter 11-a. Of the Consolidated Laws (Refs & Annos)
Part Two. The Principal Proceedings
Title H. Preliminary Proceedings in Local Criminal Court
Article 160. Fingerprinting and Photographing of Defendant After Arrest--Criminal Identification
Records and Statistics (Refs & Annos)
McKinney's CPL § 160.59
§ 160.59 Sealing of certain convictions
Effective: October 7, 2017
<[Eff. Oct. 7, 2017.]>
1. Definitions: As used in this section, the following terms shall have the following meanings:
(a) “Eligible offense” shall mean any crime defined in the laws of this state other than a sex offense defined in article one
hundred thirty of the penal law, an offense defined in article two hundred sixty-three of the penal law, a felony offense
defined in article one hundred twenty-five of the penal law, a violent felony offense defined in section 70.02 of the penal
law, a class A felony offense defined in the penal law, a felony offense defined in article one hundred five of the penal
law where the underlying offense is not an eligible offense, an attempt to commit an offense that is not an eligible offense
if the attempt is a felony, or an offense for which registration as a sex offender is required pursuant to article six-C of
the correction law. For the purposes of this section, where the defendant is convicted of more than one eligible offense,
committed as part of the same criminal transaction as defined in subdivision two of section 40.10 of this chapter, those
offenses shall be considered one eligible offense.
(b) “Sentencing judge” shall mean the judge who pronounced sentence upon the conviction under consideration, or if
that judge is no longer sitting in a court in the jurisdiction in which the conviction was obtained, any other judge who is
sitting in the criminal court where the judgment of conviction was entered.
1-a. The chief administrator of the courts shall, pursuant to section 10.40 of this chapter, prescribe a form application
which may be used by a defendant to apply for sealing pursuant to this section. Such form application shall include all
the essential elements required by this section to be included in an application for sealing. Nothing in this subdivision
shall be read to require a defendant to use such form application to apply for sealing.
2. (a) A defendant who has been convicted of up to two eligible offenses but not more than one felony offense may apply
to the court in which he or she was convicted of the most serious offense to have such conviction sealed. If all offenses are
offenses with the same classification, the application shall be made to the court in which the defendant was last convicted.
(b) An application shall contain (i) a copy of a certificate of disposition or other similar documentation for any offense
for which the defendant has been convicted, or an explanation of why such certificate or other documentation is not
available; (ii) a sworn statement of the defendant as to whether he or she has filed, or then intends to file, any application
for sealing of any other eligible offense; (iii) a copy of any other such application that has been filed; (iv) a sworn statement
as to the conviction or convictions for which relief is being sought; and (v) a sworn statement of the reason or reasons
why the court should, in its discretion, grant such sealing, along with any supporting documentation.
(c) A copy of any application for such sealing shall be served upon the district attorney of the county in which the
conviction, or, if more than one, the convictions, was or were obtained. The district attorney shall notify the court within
forty-five days if he or she objects to the application for sealing.
(d) When such application is filed with the court, it shall be assigned to the sentencing judge unless more than one
application is filed in which case the application shall be assigned to the county court or the supreme court of the county in
which the criminal court is located, who shall request and receive from the division of criminal justice services a fingerprint
based criminal history record of the defendant, including any sealed or suppressed records. The division of criminal
justice services also shall include a criminal history report, if any, from the federal bureau of investigation regarding
any criminal history information that occurred in other jurisdictions. The division is hereby authorized to receive such
information from the federal bureau of investigation for this purpose, and to make such information available to the
court, which may make this information available to the district attorney and the defendant.
3. The sentencing judge, or county or supreme court shall summarily deny the defendant's application when:
(a) the defendant is required to register as a sex offender pursuant to article six-C of the correction law; or
(b) the defendant has previously obtained sealing of the maximum number of convictions allowable under section 160.58
of the criminal procedure law; or
(c) the defendant has previously obtained sealing of the maximum number of convictions allowable under subdivision
four of this section; or
(d) the time period specified in subdivision five of this section has not yet been satisfied; or
(e) the defendant has an undisposed arrest or charge pending; or
(f) the defendant was convicted of any crime after the date of the entry of judgement of the last conviction for which
sealing is sought; or
(g) the defendant has failed to provide the court with the required sworn statement of the reasons why the court should
grant the relief requested; or
(h) the defendant has been convicted of two or more felonies or more than two crimes.
4. Provided that the application is not summarily denied for the reasons set forth in subdivision three of this section, a
defendant who stands convicted of up to two eligible offenses, may obtain sealing of no more than two eligible offenses
but not more than one felony offense.
5. Any eligible offense may be sealed only after at least ten years have passed since the imposition of the sentence on
the defendant's latest conviction or, if the defendant was sentenced to a period of incarceration, including a period of
incarceration imposed in conjunction with a sentence of probation, the defendant's latest release from incarceration.
In calculating the ten year period under this subdivision, any period of time the defendant spent incarcerated after the
conviction for which the application for sealing is sought, shall be excluded and such ten year period shall be extended
by a period or periods equal to the time served under such incarceration.
6. Upon determining that the application is not subject to mandatory denial pursuant to subdivision three of this section
and that the application is opposed by the district attorney, the sentencing judge or county or supreme court shall conduct
a hearing on the application in order to consider any evidence offered by either party that would aid the sentencing judge
in his or her decision whether to seal the records of the defendant's convictions. No hearing is required if the district
attorney does not oppose the application.
7. In considering any such application, the sentencing judge or county or supreme court shall consider any relevant
factors, including but not limited to:
(a) the amount of time that has elapsed since the defendant's last conviction;
(b) the circumstances and seriousness of the offense 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 measures that the defendant has taken toward rehabilitation, such
as participating in treatment programs, work, or schooling, and participating in community service or other volunteer
(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; and
(g) the impact of sealing the defendant's record on public safety and upon the public's confidence in and respect for the
8. When a sentencing judge or county or supreme court orders sealing pursuant to this section, all official records and
papers relating to the arrests, prosecutions, and convictions, 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 except as provided for in subdivision nine of this section; provided, however, the division shall retain any fingerprints,
palmprints and photographs, or digital images of the same. The clerk of such court shall immediately notify the
commissioner of the division of criminal justice services regarding the records that shall be sealed pursuant to this section.
The clerk also shall notify any court in which the defendant has stated, pursuant to paragraph (b) of subdivision two of
this section, that he or she has filed or intends to file an application for sealing of any other eligible offense.
9. Records sealed pursuant to this section shall be made available to:
(a) the defendant or the defendant's designated agent;
(b) qualified agencies, as defined in subdivision nine of section eight hundred thirty-five of the executive law, and federal
and state law enforcement agencies, when acting within the scope of their law enforcement duties; or
(c) any state or local officer or agency with responsibility for the issuance of licenses to possess guns, when the person
has made application for such a license; or
(d) any prospective employer of a police officer or peace officer as those terms are defined in subdivisions thirty-three
and thirty-four of section 1.20 of this chapter, in relation to an application for employment as a police officer or peace
officer; provided, however, that every person who is an applicant for the position of police officer or peace officer shall be
furnished with a copy of all records obtained under this paragraph and afforded an opportunity to make an explanation
(e) the criminal justice information services division of the federal bureau of investigation, for the purposes of responding
to queries to the national instant criminal background check system regarding attempts to purchase or otherwise take
possession of firearms, as defined in 18 USC 921 (a) (3).
10. A conviction which is sealed pursuant to this section is included within the definition of a conviction for the purposes
of any criminal proceeding in which the fact of a prior conviction would enhance a penalty or is an element of the offense
11. No defendant shall be required or permitted to waive eligibility for sealing pursuant to this section as part of a plea
of guilty, sentence or any agreement related to a conviction for an eligible offense and any such waiver shall be deemed
void and wholly enforceable.
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