NY Criminal Procedure Law § 160.59: Sealing of Criminal Convictions

Effective October 7, 2017, a law entitled “Sealing of Criminal Convictions” allows many criminal convictions to be sealed. Prior to this new law only a handful of types of criminal records could be sealed, such as juvenile Family Court records. This meant that whenever a criminal background check was performed for a new job, for housing, or for any reason, a defendant’s criminal record would be accessible. Under the new law, defendants can apply to have criminal convictions sealed. While there are some exceptions such as convictions for sex crimes and violent felonies, there are now many misdemeanors and felony convictions that are eligible for sealing. To learn more about the new law and to find out if your conviction is eligible for sealing, contact a New York sealing lawyer at the Law Offices of Stephen Bilkis & Associates.

Process for sealing

Under the provisions of “Sealing of criminal convictions,” in order for an eligible conviction to be sealed, the defendant must file an application with the court where the defendant was convicted. The application for sealing must contain a sworn statement from the defendant.

In addition to there being a restriction on which offenses can be sealed, there is also a limit to the number of offenses that can be sealed. Only 2 convictions can be sealed, and only one of those convictions can be a misdemeanor. There is also a waiting period of 10 years after the conviction. This means that 10 years since the sentencing must have elapsed before the judge will consider sealing the record of that crime. During that 10 year period, the defendant cannot have any additional convictions, arrests, or pending charges.

There are also several other factors that by statute the judge must take into consideration. The judge has discretion as to whether or not to grant the motion to seal. Thus, in order to ensure that your application for sealing presents the strongest case for sealing, it is important that your application for sealing is drafted by an experienced criminal attorney.

Effect of sealing

When a record is sealed, it does not completely disappear. It is hidden from the public. However, courts and law enforcement will be able to access it, as will agencies responsible for issuing firearm licenses. When applying for a job you will not be asked about sealed convictions and sealed convictions will not show up on a background check.

Hypothetical

Jennifer was caught shoplifting at a department store in 1998 and pled guilty to grand larceny in the fourth degree in violation of N.Y. Pen. Law § 155.30. Grand larceny in the fourth degree is a class E felony. Even though it was the first time that she had been arrested, she was sentenced to 6 months in jail. Jennifer learned her lesson and did not shoplift again. In fact, she did not commit any additional crimes at all. Instead, she went to college, earned an associate’s degree, and found a job which he has had for 8 years. Upon learning about the new sealing law, Jennifer immediately contacted a criminal attorney in New York for help. Jennifer is a good candidate for sealing since her criminal conviction is eligible under the new law, it has been over 10 years since her conviction, he has stayed out of trouble since her conviction, and she has shown that she has been rehabilitated.

New York Criminal Procedure § 160.59: Sealing of criminal convictions

1. Definitions: As used in this §, the following terms shall have the following meanings:
   1. "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 § 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 §, 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 § 40.10 of this chapter, those offenses shall be considered one eligible offense.
   2. "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 § 10.40 of this chapter, prescribe a form application which may be used by a defendant to apply for sealing pursuant to this §. Such form application shall include all the essential elements required by this § 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. 1. 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.
   2. 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.
   3. 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.
   4. 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:
   1. the defendant is required to register as a sex offender pursuant to article six-C of the correction law; or
   2. the defendant has previously obtained sealing of the maximum number of convictions allowable under § 160.58 of the criminal procedure law; or
   3. the defendant has previously obtained sealing of the maximum number of convictions allowable under subdivision four of this §; or
   4. the time period specified in subdivision five of this § has not yet been satisfied; or
   5. the defendant has an undisposed arrest or charge pending; or
   6. 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
   7. 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
   8. 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 §, 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 § 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:
   1. the amount of time that has elapsed since the defendant's last conviction;
   2. the circumstances and seriousness of the offense for which the defendant is seeking relief, including whether the arrest charge was not an eligible offense;
   3. the circumstances and seriousness of any other offenses for which the defendant stands convicted;
   4. 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;
   5. any statements made by the victim of the offense for which the defendant is seeking relief;
   6. 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
   7. 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 §, 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 §; 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 §. The clerk also shall notify any court in which the defendant has stated, pursuant to paragraph (b) of subdivision two of this §, 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 § shall be made available to:
   1. the defendant or the defendant's designated agent;
   2. qualified agencies, as defined in subdivision nine of § 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
   3. 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
   4. any prospective employer of a police officer or peace officer as those terms are defined in subdivisions thirty-three and thirty-four of § 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 thereto; or
   5. 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 § 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 § 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.

Contact the Law Offices of Stephen Bilkis & Associates

If you have been convicted of a crime and would like to learn about getting your record sealed, it is important that you are represented by an attorney with experience. The sealing attorneys at the Law Offices of Stephen Bilkis & Associates have years of experience successfully defending clients in New York criminal courts accused felonies and misdemeanors. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your case. We serve clients in the following locations: the Bronx, Brooklyn, Long Island, Manhattan, Nassau County, Queens, Staten Island, Suffolk County and Westchester County.

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