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Long Island, New York Criminal Defense Blog

Friday, September 22, 2017

Sealing of Certain Records in New York State (Effective 10/7/17)

Have you been convicted of a crime in New York? Has it been ten (10) years since your sentencing date? Do you want that conviction sealed?

Well, effective October 7, 2017, pursuant to Criminal Procedure Law Section 160.59, there will be sealing of certain records in New York State.

If you have any questions or need additional information, do not hesitate to call attorney Michael A. Arbeit at (516) 766-1878 for a free and confidential consultation.


NEW YORK STATE CRIMINAL PROCEDURE LAW
ยง 160.59 Sealing of certain convictions.
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
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 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
thereto; 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.



Based in Freeport, NY Michael A. Arbeit, P.C. serves clients throughout Nassau County, Suffolk County, Queens County, New York County, Kings County, and Bronx County New York.



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| Phone: 516-766-1878

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