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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]
CONTACT US TO DISCUSS EXPUNGING YOUR CRIMINAL RECORD IF YOU HAVE NOT BEEN CONVICTED OF ANOTHER OFFESE FOR TEN YEARS FROM THE DATE OF THE IMPOSITION OF YOUR SENTENCE.
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