Late Sunday night, the New York Senate finally passed the beleaguered 2017-18 budget bill, which was signed by Governor Andrew Cuomo the following day. And while the passage of the bill was good news to New Yorkers eager to avoid a government shutdown, it should be even better news to a significant number of New Yorkers with criminal convictions. Tucked away inside the massive bill is an unheralded provision creating the state’s first general sealing authority for adult criminal convictions. Previously, record sealing was available only for non-conviction records and diversion and drug treatment dispositions. Now sealing will be available for misdemeanors and all but the most serious felony offenses.

The new law, which takes effect in October, gives New York one of the most expansive record-closing authorities in the Nation, rivaling such traditional sealing centers as Massachusetts, Washington, and Minnesota.

Under a new § 160.59 of New York’s Criminal Procedure Law, courts will have discretion to seal up to two convictions (only one of which may be a felony) for all crimes other than sex offenses and class A and violent felonies, after a 10-year waiting period (running from the date of conviction or release from prison). Sealed records will remain available to law enforcement and some licensing agencies but will be unavailable to the public.

In addition, the budget bill amended the New York Human Rights Law to cover convictions sealed under this new authority, thereby prohibiting public and private employers and occupational licensing agencies from asking about, or taking adverse action based on, a sealed conviction.

We updated our New York Guide to Restoration of Rights, Pardon, Expungement & Sealing to include the new law, and summarize below relevant portions on eligibility, procedures, standards, and effect.

 

Eligibility

Individuals may seek sealing for up to two eligible convictions, only one of which may be a felony. N.Y. Crim. Proc. Law § 160.59(2)(a).  Multiple eligible convictions “committed as part of the same criminal transaction” are considered a single conviction. § 160.59(1)(a). Ineligible offenses include most sex offenses, all “violent felonies,” and all Class A felonies. § 160.59(1)(a).  Sealing is not available to individuals convicted of more than two crimes or more than one felony.  § 160.59(3)(h).  A 10-year waiting period applies, counted from the date of imposition of sentence, or the date of release from the latest period of incarceration (if applicable). § 160.59(5).  Individuals required to register as sex offenders and individuals who have exceeded the maximum allowable number of sealings under this section or the conditional sealing authority at N.Y. Crim. Proc. Law § 160.58 (applicable to diversion/drug treatment dispositions) are ineligible, as are those with pending charges or who have been convicted subsequent to the last conviction for which sealing is sought. § 160.59(3).

Procedure

Application is made to the court where the conviction for the most serious offense sought to be sealed occurred, or to the court where the individual was last convicted if all offenses for which sealing is sought are of the same class. N.Y. Crim. Proc. Law § 160.59(2)(a).  Among other requirements, the application must contain a sworn statement of reasons why sealing should be granted. § 160.59(2)(b)(v).  The application is assigned to the sentencing judge if sealing is sought for a single conviction, and to the county/supreme court otherwise. § 160.59(2)(d).  The District Attorney must be served, and has 45 days to object to the application.  If there is no objection, the court may decide the application without a hearing. § 160.59(6).

Standard

N.Y. Crim. Proc. sec. 160.59(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.

Effect

If sealing is granted, 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.” N.Y. Crim. Proc. Law § 160.59(8).  Exceptions apply:  The records remain available to enumerated “qualified agencies,” including courts, corrections agencies, and the office of professional medical conduct; to federal and state law enforcement for law enforcement purposes; to state entities responsible for issuing firearm licenses; to employers for screening applicants for police officer/peace officer employment; and to the FBI for firearm background checks. § 160.59(9).  Additionally, law enforcement fingerprint records are not affected by the sealing order. § 160.59(8). Sealed convictions remain “convictions” for the purpose of sentence enhancement or establishing the elements of crime. § 160.59(10).

The New York State Human Rights Law, N.Y. Exec. Law § 296(16) was amended concurrent with the enactment of the sealing authority, prohibiting public and private employers and occupational licensing agencies from asking about, or taking adverse action (i.e., denying employment or licensure) because of, a sealed conviction.