2017-06-02 / Community

NY Law Changes Sealing Of Criminal Convictions

By Don Murray

Beginning in October, 2017, a new law in New York will allow thousands of people struggling to get by with criminal convictions the chance to seal up to two criminal convictions, including one felony conviction. The new law, Criminal Procedure Law Section 160.59, dramatically shifts New York’s policy regarding sealing convictions. Until now, New York allowed only for “conditional” sealing of convictions under a few extremely narrow, carefully controlled exceptions. The new law applies broadly and the sealing is permanent, not conditional.

Under the new law, the conviction to be sealed must be at least ten years old. The person seeking sealing must not have more than two convictions, and must have no pending criminal charges. Not every type of conviction may be sealed under the new law. Convictions for violent felony offenses and most sex offenses may not be sealed. Certain of the most extreme felony offenses may not be sealed.

In order to apply for sealing, a complex motion will need to be prepared and filed with the court and the prosecutor. The motion must address a series of factors identified in the new law that are meant, when taken as a whole, to give the judge a picture of who the person is now, that person’s journey over the last ten or more years, and where that person hopes to go in the future. The motion must also address the facts of the case, with an opportunity for consideration of the statements of the victim as well.

Once the motion is filed, the prosecutor has 45 days to object. If the prosecutor objects, the judge will hold a hearing on the motion where the prosecutor will lay out the objections and the defense will have an opportunity to respond. Given the complexity of the motion that the new law requires, the level of argument required, and the possibility of the need to conduct a hearing in court, assistance of a lawyer will be important.

If the judge grants the motion to seal under the new law, the conviction will, for most purposes, be made invisible to the public, meaning that background checks in the ordinary course of business will no longer reveal the conviction. The conviction will be available to law enforcement, however, for a handful of law enforcement related purposes.

Despite the exceptions, and despite the limited availability of the convictions for law enforcement related purposes, New York’s new conviction sealing law will likely provide welcome relief if only in terms of greater access to employment for people who have struggled against the mark of a criminal conviction.

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