NYS Criminal Procedure Law Section 160.59
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 or convictions 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 programs;
(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 law.
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 finger-prints, 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 there-to; or
(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 charged.
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 unenforceable.
by William C. Donnino
The instant “sealing of certain convictions” statute was added by the L. 2017, c. 59, Part WWW, § 48 and c. 60, §§ 4 and 5. The essence of the statute is to permit a court to “seal” certain criminal convictions when ten years have passed since the offender's last sentence or release from incarceration. The effect of sealing is to preclude making the records of the conviction available to any person or public or private agency (with specified exceptions). Also, enacted along with the sealing statute, was an amendment to Executive Law section 296(16), which sets forth what constitutes an “unlawful discriminatory practice” against an individual with a sealed criminal record.
Whether a person is eligible to have a criminal conviction sealed initially depends on the crime(s) sought to be sealed. The definition of “eligible offense” [subdivision (1)(a)] is “any crime” except those specified. The specified excluded offenses are: any sex offense [Penal Law art. 130]; any sexual performance by a child offense [Penal Law art. 263]; any offense for which registration as a sex offender is required [Correction Law § 168-a]; any felony homicide [Penal Law art. 125]; any violent felony [Penal Law § 70.02]; any Penal Law class A felony; and two inchoate crimes: any felony conspiracy [Penal Law art. 105] if the object of the conspiracy is not an eligible offense; and any attempt to commit an offense [Penal Law art. 110] if the attempt constitutes a felony and the offense attempted is not an eligible offense.
Only “two eligible offenses but not more than one felony offense” qualify for sealing [subdivisions (2)(a) and (4)]. Thus, because an “eligible offense” must be a crime, only two misdemeanor convictions, or one misdemeanor and one felony conviction will qualify for sealing. However, a conviction “of more than one eligible offense, committed as part of the same criminal transaction as defined in [CPL 40.10(2)] shall be considered one eligible offense” [subdivision (1)(a)]. (On the meaning of “criminal transaction,” see People v. Lynch, 25 N.Y.3d 331, 12 N.Y.S.3d 590, 34 N.E.3d 341 (2015); see also Practice Commentary to CPL 40.20 in the section commenting on “subdivision two” of CPL 40.20.)
Subdivision (3)(h) requires denial of an application for sealing if the applicant has convictions of “two or more felonies or more than two crimes.” That provision, however, should be subject to the subdivision (1)(a) provision which would, for example, treat the conviction of two or more felonies arising out of the same criminal transaction as the conviction of one felony.
Next, “at least ten years must have passed since the imposition of the sentence on the defendant's latest conviction” or, if the sentence included incarceration, “the latest release from incarceration.” And, any incarceration thereafter “shall be excluded” from the calculation of the ten year period, and that “ten year period shall be extended by a period or periods equal to the time served” [subdivision (5)]. However, during that ten year period, the applicant cannot have been convicted of a crime after the last judgment of conviction for which sealing is sought [subdivision (3) ((f)]; as a result, the application cannot be considered if the applicant has an “undisposed arrest or charge pending” [subdivision (3)(e)]. Pursuant to those rules, it would seem, for example, that while incarceration for a violation of parole or post release supervision for reasons other than a criminal conviction would extend the ten year period, it would not preclude eligibility for sealing of that felony conviction.
Additional qualifying requirements are found indirectly in the subdivision which authorizes a court to deny sealing summarily [subdivision (3)]. Of note, the application for sealing must be denied if the applicant has “previously obtained sealing of the maximum number of convictions allowable” under the instant statute or under CPL 160.58, which authorizes a conditional sealing of certain drug convictions [subdivision 3(b) and (c)]; or the applicant fails to provide the court with a sworn statement of the reason(s) for sealing [subdivision (3)(g)].
A defendant who qualifies for sealing must submit a detailed application concerning the “eligible offense” and the reason(s) for requesting sealing [subdivision (2)]. The application is filed in the court in which the conviction for the most serious “eligible offense” occurred; if there are two such offenses with the same classification, the application is filed in the court in which the last conviction occurred [subdivision (2)(a)]. The application is assigned to the “sentencing judge” (defined in subdivision (1)(b) to provide for an alternate judge if the “sentencing judge” is not available [subdivision (1)(b)] and subdivision (2)(b)).
Notwithstanding that the applicant meets the requirements for applying to seal an “eligible offense,” a court may yet decline to grant the application [subdivision (7)]. Indeed, if the District Attorney (upon whom the application must be served [subdivision (2)(c)]) opposes the application, the court “shall conduct a hearing” to consider “any evidence” relating to the application [subdivision (7)]. “Hearing” is an elastic term and calls for an “opportunity to be heard, to present one's side of a case” (Merriam Webster's Dictionary). Thus, while testimonial evidence may be appropriate at the hearing, it should not necessarily be required. And, the courts may find that the formal rules of evidence, except perhaps privilege, need not apply. In fact, subdivision seven dictates that the court in determining the application, “shall consider any relevant factors,” and then includes among its illustrative factors: “any statements made by the victim of the offense” [subdivision (7)(e)].
With respect to the factors the court will consider, while the seriousness of the offense and the impact of sealing on public safety and confidence in the law must be considered, the “eligible offense” definition excludes most of the offenses for which such factors would warrant denial of the application. Perhaps the most important factors to consider will be the “character” of the applicant and the evidence of his or her “rehabilitation” [subdivision (7)(d) and (f)].
If granted, the sealing order will cover “all official records and papers” related to the conviction, with one significant reservation: The Division of Criminal Justice Services “shall retain any fingerprints, palmprints and photographs, or digital images” of such prints or photographs [subdivision 8].
Compounding that reservation is subdivision nine, which makes the “sealed” records available to a number of federal, state, and local governmental agencies for a variety of purposes. In fact, a vast array of “qualified agencies” [as defined in Executive Law 835(9)] are permitted access to the sealed records. Those “qualified agencies” include the courts of the unified court system, probation departments, sheriff offices, district attorney offices, state and local correction departments, police departments having responsibility for enforcing criminal laws, and others. That array of “qualified agencies” which have access to a record sealed under the instant statute is broader than the other sealing statutes. Cf. Matter of Katherine B. v. Cataldo, 5 N.Y.3d 196, 800 N.Y.S.2d 363, 833 N.E.2d 698 (2005), which held that the records sealed under CPL § 160.50(1)(d)(ii) were not available to a prosecutor for the purpose of making a sentence recommendation.
Then, subdivision ten resurrects the “sealed” record if, upon the alleged commission of a subsequent crime, “the fact of a prior conviction would enhance a penalty or is an element of the offense charged.”
Perhaps, the most significant benefit from the sealing is set forth in a provision of the Executive Law which was added by the same legislation, and dictates that:
“It shall be an unlawful discriminatory practice ... to make any inquiry about, whether in any form of application or otherwise, or to act upon adversely to the individual involved, any arrest or criminal accusation of such individual not then pending against that individual which was followed ... by a conviction which is sealed pursuant to [CPL] section 160.59.” Executive Law § 296(16).
Should an improper inquiry be made, the statute further provides that “no person shall be required to divulge information pertaining to any arrest or criminal accusation of such individual not then pending against that individual which was followed ... by a conviction which is sealed pursuant to [CPL] section 160.59.” Id. There are, of course, exceptions to these benefits, including, for example, application for a license for a firearm or an application to be a police or peace officer. Id.
A most salutary provision bars “requiring or permitting” a defendant 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 ...” [subdivision 11].
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