Get Your Criminal Record Sealed in NYC
Historically, criminal convictions could not be sealed in New York, with certain limited exceptions. For example, violations such as Disorderly Conduct and Harassment (unless involving an allegation of domestic violence) typically seal automatically within two years. However, a new law taking effect in New York as of October 2017 allows for the sealing of many felony and misdemeanor convictions. The new sealing provisions are found in Criminal Procedure Law Section 160.59
A Well-Constructed Application Can Make All the Difference
The request to seal a criminal conviction is started with an application sent to the court. Many of the factors a judge must consider in determining whether to grant an application to seal a criminal record require subjective judgment. Thus, the quality and clarity of the application and supporting documentation can make the difference between a successful application and a denial.
An experienced criminal defense attorney understands the type of information that will help to persuade a judge, and knows how to showcase that information to your advantage. If you are considering applying to seal a criminal record, your next step should be to talk to a criminal lawyer.
Not All Criminal Records are Eligible for Sealing
The provision for sealing criminal records applies specifically to misdemeanors and felonies. Violations typically seal automatically after a certain amount of time, and traffic infractions never seal. However, not every felony or misdemeanor conviction is eligible for sealing.
Crimes Excluded from the Sealing Law
Crimes that may never be sealed include:
- Any class A felony
- Any crime classified as a violent felony
- Any homicide-related offense under Article 125 of the Penal Law;
- Any crime classified as a sex offense under Article 130 of the Penal Law;
- Any sexual performance offense under Article 263 of the Penal Law;
- Any conviction that requires registration as a sex offender;
- Any conviction of the attempt to commit an ineligible crime; and
- Any conviction of conspiracy to commit an ineligible crime
Each of these categories encompasses many different crimes. For example, class A felonies include not crimes such as Murder in the First or Second Degree and Kidnapping in the First Degree and also Criminal Possession of a Controlled Substance in the First or Second Degree and Criminal Sale of a Controlled Substance in the First or Second Degree.
Requirements for Eligibility
Determining whether or not conviction for a particular crime is eligible for sealing is a threshold issue. However, the fact that the type of conviction is eligible for sealing does not necessarily mean that the criminal record will be sealed. Even an eligible conviction cannot be sealed if:
- Fewer than 10 years have passed since the sentencing or release from incarceration;
- The person seeking to seal the conviction has pending criminal charges; or
- The person seeking to seal the conviction was later convicted of another crime
Additionally, only two criminal convictions may be sealed, and only one of those may be a felony conviction. However, if multiple convictions resulted from a single set of facts, those convictions will be treated as one conviction for purposes of the sealing act. Thus, if several convictions stem from the same act, it may actually be possible to seal more than two convictions.
Standards for Granting or Denying an Application to Seal a Criminal Record
Technical eligibility for sealing is not a guarantee that a criminal conviction will be sealed. Rather, the person seeking to seal the conviction must submit an application, after which the court will consider the following seven factors:
- How long it has been since the applicant was last convicted of a crime;
- How serious the underlying crime was;
- The seriousness of any other crimes the applicant may have been convicted of;
- The character of the applicant, and any efforts made toward rehabilitation or contributions to the community;
- Victim statements made in connection with the conviction;
- The effect sealing the conviction would have on the applicant’s rehabilitation and reintegration to productive society; and
- Any effect sealing the record might have on public safety and/or respect for the law
The Process for Sealing Criminal Convictions in New York
If an applicant and the conviction he or she hopes to seal meet technical requirements, the next step is to prepare and submit an application to seal the conviction. The application, along with supporting documents such as the certificate of disposition for the conviction, an affidavit setting forth support for sealing the conviction and other documents, must be served on the District Attorney.
The District Attorney has 45 days in which to enter an objection to the conviction being sealed. After the prosecution has either entered an objection or allowed the 45-day period to expire, the judge will consider the seven factors set forth in the statute and determine whether to grant the application.
What Does It Mean to Seal a Criminal Record?
Sealing criminal records should not be confused with expungement. While an expungement wipes out a criminal record, sealing of the record is exactly what the phrase implies. A criminal record that is sealed continues to exist, but is “locked,” or inaccessible to most people under most circumstances.
New York does not offer expungement. However, when a criminal conviction is sealed, related material such as fingerprints, mugshots, and DNA samples are destroyed. Additionally, the records that do remain are available only to a very limited number of people, and only under specific circumstances.
For example, the person convicted of the crime may access the records, as may an agent appointed by that person, such as a criminal defense attorney. Parole officers may review sealed records only if the convicted party is arrested while on probation or parole. Even police and Assistant District Attorneys cannot access the records without a court order, which will typically be granted only for a compelling reason. Most often, law enforcement and prosecutors are permitted access to sealed criminal records if they are relevant to new charges filed against the person whose records have been sealed.
