How Does Section 160.59 Sealing of Criminal Convictions Work in New York?
BY DON A MURRAY, ESQ.
Thanks to recently enacted New York Criminal Procedure Law Section 160.59, New York has become one of the more forgiving states in terms of sealing existing criminal convictions. Up until this new legislation, sealing of criminal convictions was only possible in very limited circumstances. The law became effective in October, 2017. People with criminal convictions in New York are now in a position to seek to take advantage of far more forgiving rules than existed in the past. People suffering under the weight of criminal convictions are now able to start with a clean slate.
Under the new law, up to two New York State criminal convictions can be sealed. Only one of these two convictions can be a felony conviction.
A person is eligible to have a conviction sealed under 160.59 after ten years of good behavior from the date of conviction, or from the date of release from custody (whichever is later in time). A person who has more than two criminal convictions is not eligible for sealing under section 160.59.
Also, not all types of convictions can be sealed under Section 160.59. Some of the most serious felonies (like murder for example) may not be sealed. Felonies labeled as "violent" are not subject to sealing, and neither are most sex offenses.
Convictions sealed under Section 160.59 are not evaporated from the universe either. They will still be visible to law enforcement and will still be available to certain regulatory agencies controlled by the Government. Also do not expect the Federal Immigration authorities to treat convictions sealed pursuant to Section 160.59 as if they didn't exist. Nevertheless, sealed convictions will become invisible to most employers and government agencies.
In order to activate the sealing process, a lawyer will file a motion for sealing in Court and serve a copy of the motion on the District Attorney's Office. The District Attorney's Office will have 45 days to respond to the motion and object to sealing in your case. If they don't object to the sealing, the Court will be allowed to decide the motion based solely on the lawyer's arguments. If they do respond to the motion and object, the Judge will be allowed to hold a hearing where witnesses can be called and evidence presented by both the lawyer and the prosecutor. After the hearing, the Judge will decide whether to grant the sealing or not.
The Judge is allowed to consider any relevant fact that the lawyer thinks will help make the decision, but Section 160.59 specifically suggests that the following factors are important:
THE AMOUNT OF TIME THAT HAS ELAPSED SINCE THE DEFENDANT’S LAST CONVICTION
Presumably, the longer amount of time that has gone by since your conviction, the greater will be the weight of the argument that the conviction ought to be sealed. Ten years is a common benchmark in this sort of thing and is considered to be a significant amount of time when Judges are asked to evaluate whether a defendant ought to be allowed to be confronted by a prior conviction on cross examination. Therefore, ten years of good behavior will be a significant and familiar factor for most experienced Judges.
THE CIRCUMSTANCES AND SERIOUSNESS OF THE OFFENSE FOR WHICH THE DEFENDANT IS SEEKING RELIEF, INCLUDING WHETHER THE ARREST CHARGE WAS NOT AN ELIGIBLE OFFENSE
This factor is interesting because it accounts for the realities of plea bargaining. In many cases, people are charged with a serious crime like Assault in the Second Degree, but for any number of reasons, the case is settled with a conviction for a misdemeanor like "Assault in the Third Degree". Therefore, if you were to look only at the charge of conviction, it would seem like just a misdemeanor. Section 160.59, however, specifically reminds the Judge to consider the actual underlying charges and not simply the charge that was agreed to for purposes of settlement. This factor could go either way. In some cases, the charge is lessened because there are doubts about the legitimacy of the more serious charges. In those cases, one would expect a judge to weigh this factor in favor of sealing. In other cases, however, the charge is lessened for purposes of settlement for practical reasons such as availability or willingness of witnesses. In those cases, a Judge might be less willing to agree to sealing on the grounds that the actual facts were more serious and troubling.
THE CIRCUMSTANCES AND SERIOUSNESS OF ANY OTHER OFFENSES FOR WHICH THE DEFENDANT STANDS CONVICTED
This factor allows the Judge to take into account any other conviction (whether for felony, misdemeanor, or non criminal offense). Therefore, presumably, someone with 15 misdemeanor arrests that all somehow were reduced to disorderly conduct convictions might have a hard time convincing a judge to seal a criminal conviction.
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
This factor is what would probably be exactly what most people would expect to be the focus of applications for sealing of criminal convictions. Presumably, the more evidence of this type, the better it is likely to go for the person seeking sealing.
ANY STATEMENTS MADE BY THE VICTIM OF THE OFFENSE FOR WHICH THE DEFENDANT IS SEEKING RELIEF
This factor does not specifically indicate the timing of these statements by the victim. There is nothing prohibiting the District Attorney from obtaining new statements just for the purpose of this motion, but most likely this factor is making reference to any victim impact statements that may already be part of the Court file in the case. As an aside, I would tend to believe that in cases where there are victim impact statements of any kind from any time (before or current), the likelihood of success of this sort of motion may be dramatically lowered.
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
This I imagine will become a quite important factor for Judges to consider. The more some specific, identifiable harm can be identified that is being caused by the conviction, the greater the likelihood that a Judge will be moved to lend a hand and stop that harm. The less specific the harm, or the more the motion seems like it is saying, "It would just be nice not to have a conviction any more" the less likely I think a Judge is to be moved to actually seal the conviction.
THE IMPACT OF SEALING THE DEFENDANT’S RECORD ON PUBLIC SAFETY AND UPON THE PUBLIC’S CONFIDENCE IN AND RESPECT FOR THE LAW.
This is a broad factor that of course states a kind of obvious consideration about any decision related to a criminal case. It is quite similar to a factor Courts are required to consider in applications to dismiss criminal charges in the interest of justice.
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Don Murray, founding partner of Shalley and Murray, pictured above, is a 27 year veteran New York City Criminal Defense Lawyer. Since the law became effective, Mr. Murray has been retained to prepare and file numerous motions to seal conviction under the new law. Already, he has wrestled with some difficult cases, where the outcome was far from certain.
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