Until relatively recently, New York law provided no mechanism for removing old criminal convictions from your record. In other words, as far as New York law was concerned, once a “criminal” always a “criminal.” It didn’t matter if you were a 55 year-old father of three with a Masters in education who pleaded guilty to stealing a candy bar when you were 18. That decades-old conviction would be a permanent part of your record that would show up every time anyone did a background check. Thankfully, New York finally passed legislation creating a new statute in the Criminal Procedure Law, CPL 160.59, which allows for sealing of old criminal convictions under certain circumstances.
Sealing vs. Expungement
The terms “sealing” and “expungement” get tossed around carelessly, particularly the latter. It’s important, first, to understand the distinction between these two terms, and which apply in New York. The goal of both mechanisms is to remove a prior criminal conviction or other item from a person’s criminal history or record. Generally speaking, “expungement” refers to the complete vacating of a criminal conviction, and sometimes even the destruction of the records relating to that conviction. In other words, expungement effectively undoes the conviction itself. Sealing, on the other hand, merely prevents certain people from seeing or discovering the conviction, although the conviction is still effective and in existence as far as the law is concerned.
The law in New York, even now, does not provide for expungement of criminal records, but merely provides for sealing of those records with some strict limitations. What this means is that if you are successful in getting your old conviction(s) sealed, that doesn’t change the fact that you have been convicted of a crime(s), and someone with a court order to unseal those records could still go look through that file and see all the details. What sealing is designed to accomplish is preventing someone from seeing that record of conviction during an ordinary background check for a new job, for example. It also serves as a kind of acknowledgment that that prior conviction is not reflective of who the person is now, and he or she should no longer have that scarlet letter emblazoned on their record.
There are some very strict and severe restrictions on when a person is eligible to have their old criminal convictions sealed. First, there are many kinds of crimes that are simply ineligible, such as sex offenses and violent felonies. In addition, in order to be eligible, a person cannot have more than two prior convictions of any kind, and no more than one felony conviction. Also, ten or more years must have passed since the most recent conviction, or since the date of release from incarceration if there was a jail or prison sentence in connection with the conviction. These are just some of the most straightforward restrictions, and there are several others found in CPL 160.59.
Process and Procedure
If a person is eligible for sealing, based on the various restrictions and conditions in the statute, the first step is to file a motion with the court that presided over your conviction. This motion must be accompanied by certain required materials, such as your Certificate of Conviction and an affidavit from the person applying for sealing. There are innumerable other materials and documents that, while not required, can be extremely helpful in pursuing sealing. The District Attorney’s Office that prosecuted the original case must be provided with a copy of the motion, and they will have an opportunity to respond to your motion. After review, the District Attorney’s Office may decide to oppose your motion and argue that your convictions should not be sealed, or they may decide to not oppose the motion and essentially agree that your convictions should be sealed. The decision is ultimately up to the judge, who will review all the documents submitted, and may even order a hearing at which testimony and/or oral argument would be heard regarding the motion. At the end of the day, the judge will decide whether to seal your convictions or not.
Given the importance of sealing your past convictions, and the complexity involved in this process, it can be critical to consult with a criminal attorney with experience pursuing CPL 160.59 sealing motions. Just as important as eliminating the impact of old, now-irrelevant convictions on future employment or other similar consequences is the recognition of the fact that these past mistakes should not and cannot define who a person is for the rest of their life.