Tag: Cuomo

New York surprises with broad new sealing law

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. Read more

New York City agency called on the carpet for employment discrimination

At least on paper, New York City has the strongest legal protections in the Nation for people with a criminal record, and for employers and others who are willing to give them a chance. The State’s vaunted certificates of relief remove mandatory legal disabilities and certify rehabilitation, and are available to any and all defendants.  Governor Cuomo has shown his interest in restoration of rights by adopting a broad reform agenda, and the City’s ban-the-box law is among the broadest in the Nation.  Both State and City have broad human rights laws intended to protect people with a criminal record from unwarranted discrimination.  But with all this web of beneficent laws and rules and policies, some City agencies apparently still have not gotten the word. In a decision handed down on July 12, a New York judge chastised the City’s Department of Education for refusing to license a woman as a school bus attendant based solely on a 2010 conviction for petty larceny, an action for which he found no basis in fact or law. Judge Peter Moulton’s opinion in Boone v. New York City found that the DOE had acted arbitrarily and capriciously in finding 1) that there was a “direct relationship” between the woman’s conviction and the duties of school bus attendant; and 2) that her employment would post an “unreasonable risk” to children.  Judge Moulton pointed out that the woman had been 20 years old when she participated with co-workers in stealing from her employer Best-Buy, that she had successfully served her probation term and paid full restitution, and that she had otherwise “lived a crime-free life.”  He also found that while DOE had gone through the motions of applying the various statutory factors relevant to the “direct relationship” determination, it had adduced no facts that supported of its ultimate conclusion, or its conclusion that the woman posed a risk to school children riding the bus. Indeed, in reaching its conclusion the agency appeared to have piled one unwarranted assumption on top of another, writing that her “offense impacts [her] ability to perform her duties if she continues to engage in job-related criminal offenses.”  DOE seems to have been unimpressed by the fact that the woman had been granted a Certificate of Relief from Disabilities, relief specifically intended to create a “presumption of rehabilitation” under applicable New York law.  Judge Moulton remarked that DOE “submits no evidence, nor could it, that petitioner is somehow prone to commit future criminal activity in light of her sole conviction for petit larceny.” It is discouraging that agencies in a City with the most enlightened laws and the most progressive administrators, still feel they can deny employment opportunity to convicted individuals in such an unreasoned and mean-spirited fashion.  If judicial intervention is required to compel agencies to do such an obvious right thing, it will be a long slow march to end conviction-related employment discrimination. The New York Law Journal reported that the City was considering an appeal. Read more

New York governor adopts progressive collateral consequences agenda

Governor Cuomo has accepted all 12 recommendations made by his Council on Community Re-entry and Reintegration. The Council was created in July 2014 and tasked with “identifying barriers formerly incarcerated people face and making recommendations for change.” Governor Cuomo’s 12 executive actions include:  adoption of anti-discrimination guidance for public housing; adoption of uniform guidelines for evaluating candidates for occupational licensing, and a presumption in favor of granting a license to a qualified applicant; revision of 10 licensing and employment regulations that imposed stricter standards than required by statute;  adoption of a “fair hiring” policy for state employment that will delay a background check until well into the hiring process; and streamlining the process for obtaining certificates of relief from disabilities and certificates of good conduct. Council Chair Rossana Rosado said, “We accomplished our goals this year but our work is far from over. As we look to address many more of the systemic barriers encountered in re-entry, we will not lose sight of New York’s role as a leader in combating the devastating impact and stigma of second class citizenship that so many of our fellow New Yorkers face, especially men of color.” The Council will continue to build on this successful first year by promoting a range of educational opportunities to improve chances of employment, addressing barriers to health care, seeking to reduce the potential for extortion from public exposure of criminal records and continuing to seek solutions to housing people with criminal convictions consistent with fairness and public safety. Read more