Sealing Criminal Records in New York

December 13, 2017

As reported in many news sources, including the New York Daily News and National Public Radio, it’s now possible, in some circumstances, to get a New York criminal conviction sealed.  The Collateral Consequences Resource Center has a page laying out (per, for the most part, Section 160.59 of the Criminal Procedure Law) eligibility for sealing, procedures for applying, standards by which applications are to be evaluated, and the effects sealing is intended to have.  And New York’s Office of Court Administration has published a set of forms for applying, along with three pages of instructions.

Here are some things worth noting.

First, you have to live with your conviction for a while before you can have it sealed.  Nothing can be done until ten years have passed (jail or prison time doesn’t count towards the ten years).

Second, you can have up to two convictions sealed, but you can’t take two off your record and leave a third.  You’re not even eligible to apply if you have more than two crimes on your record (although you should keep in mind that violations like disorderly conduct aren’t crimes).  Only one of the crimes on your record can be a felony.  In other words: (1)  If you have one or two misdemeanors you’re in the running, but if you have three you’re out;  (2)  If you have one felony and one misdemeanor you’re in the running; if you have two felonies, you’re out; and (3) If you’ve got a felony and two misdemeanors, no dice.

Even one conviction will keep you out if it’s the wrong kind.  A sex offense, for instance, will rule you out, and so will a violent felony.  And be aware that you may not be home free even if the conviction is for an eligible offense.  That’ll get you in the door, but when your sealing application gets into court, the judge is allowed to consider many things, including the nature of the original charge.  It doesn’t appear that he or she is required to dismiss the request based on the original charge, but if it’s ugly, that can’t be good.

The procedure involves making a motion, which is an application to the court for an order.  Which court you apply to will be based on a number of factors, including the severity of the crime(s) you were convicted of, and where you were convicted last. A number of factors may be considered by the court in making its decision, and a hearing may be required.  You have to put the appropriate district attorney on notice, and the district attorney may oppose your application.  At this point it’s unknown whether courts and district attorneys will treat sealing as more or less a matter of course, or treat it as a reward for extraordinarily good defendants.

If your motion is granted, any record of the relevant convictions is sealed, although some agencies can get hold of it for some purposes.

For many people, of course, the most important question will relate to job applications, and how to deal with questions about criminal convictions.  One current job application, chosen more or less at random, asks “Have you been convicted of a crime in the last seven (7) years? Yes ____ No ____ .” It continues with “If Yes, list convictions that are a matter of public record . . .”  While an employer isn’t supposed to inquire about sealed convictions, how should you answer if he she or it does?  If you refuse to answer, you raise red flags.  Can you just say you haven’t?  You’re definitely taking a risk if you do that.  As noted in a very useful resource found at Reentry.net, there hasn’t been any clear answer from the state’s courts.

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