Sealing of Criminal Record

Sealing of Criminal Record. On October 7, 2017, a new law went into effect in the State of New York, that allowed for sealing the criminal record under certain conditions.  This was codified in New York Criminal Procedure Law (“CPL”) section 160.59 “Sealing of Certain Convictions.” This section provides that a form application must be available to the defendants. We will review which convictions may be sealed and what are eligibility requirements for the sealing of criminal records. First, the defendant has to wait at least 10 years since the imposition of sentence for the most recent conviction. We will start with the offenses that cannot be sealed. They include sex offenses defined in Art. 130 of New York Penal Law (“PL”), sexual performance by a child offenses defined in Art. 263 of PL, Felony homicide, abortion, and related offenses defined in Article 125 PL, Violent felony offenses defined in PL Art. 70.02, any Class A felony, Felony conspiracy offenses with the underlying offense that cannot be sealed, felony attempts to commit felony offense that cannot be sealed, other sex offenses listed in ART. 6 of New York Correction Law that require sex offense registration.

There is a limitation for sealing criminal records under CPL §160.59, more specifically, you are eligible for sealing of up to two eligible offenses convictions, including not more than one eligible felony.  If the defendant is convicted of more than one eligible offense as part of the same transaction, he is still eligible to seal those related convictions.

An experienced criminal defense attorney can assist you in the sealing of your criminal record by carefully analyzing your situation and preparing a package of required documents. Those documents include a Certificate of Disposition, an Application for sealing, a sworn statement from the defendant regarding sealing a criminal record, and a sworn statement by the defendant as to why the court should grant the sealing. Any other documents in support of the application should be also sent as part of this package. It is important to understand that sealing a criminal record is not an entitlement but is discretional with the court.

After the application for sealing of criminal record is completed it should be filed with the court along with all supporting information with a copy served on District Attorney’s office in every county where the conviction occurred. After that District Attorney’s office has 45 days to respond to this application and raise any objections to the sealing. Usually, the case will be assigned to the sentencing judge. In case of multiple convictions in various courts, the case will be assigned to a Supreme or County court judge.

The new law provides some relevant factors that the Judge will consider in deciding the application for the sealing of a criminal record. Among them, the amount of time that passed since the defendant’s last conviction, the circumstances and seriousness of the underlying offense, the circumstances and seriousness of any other offenses of which the defendant stands convicted, the character of the defendant including evidence of rehabilitation, work, school, participating in community and volunteering activities, any statements made by the victim, the impact of sealing criminal record on the defendant’s rehabilitation and job opportunities, and the impact of sealing the defendant’s record on the public safety.

If the District Attorney files an objection to the sealing of the criminal record, the Court must grant a hearing on the application. If the defendant is successful and the Court orders criminal records sealed, all official records and papers relating to the arrest and conviction are sealed and not made available to any person or public, except as provided by law. Under CPL § 160.59(9), such records will be made available to the defendant, any state or local agency responsible for the issuance of gun licenses, prospective employers if the defendant applies to become a police officer or peace officer, FBI and “qualified agencies” (essentially, most law enforcement agencies).

It should be noted that convictions that are sealed are still considered for the purposes of enhancing penalties or as an element of the new offense if one is required.

Because this new law contains numerous nuances, we suggest contacting an experienced criminal attorney in order to accomplish the sealing of a criminal record. Sharifov and Associates, PLLC handle matters involving the sealing of criminal records in New York.