Judge Gives Prosecutor More Time than Law Allows to Respond to Conviction Sealing Motion

I appeared in one of the Courtrooms in New York City Criminal Court the other day on one of our conviction sealing motions under New York's new conviction sealing law and got a big surprise.  I hadn't heard anything from the District Attorney's Office, although I had filed the motion in December.  My experience has been that a failure of the DA's office to respond means that they are not contesting the motion, which I thought was likely in this particular case where my client seemed to be a sort of poster child for the creation of the sealing statute.  

We were hopeful for good news on this day.  

We discovered, however, that the District Attorney's Office had simply not responded.  The Judge instantly volunteered, without the Assistant in the Courtroom even asking mind you, to give the DA's office more time to respond.  On further reflection, I probably should not have complained because the motion is solid, and the DA's Office is ultimately likely to consent in my view, but I did in fact complain for the granting of additional time - mostly because I am confident that the DA's office will ultimately just consent anyway and I was hoping to keep my client from having to come back again from New Jersey.

The Judge responded that the case was very old, from the mid-1990's and she speculated that the DA's Office must still be looking for the file or something.  This was not the argument to make.  A better argument it seems to me would have been simply to remind me that in 27 years of practice I have probably come to the court looking for more time for things and that the court has given me more time for things, not because I was entitled to more time, but because it was the right thing to do to make sure that a matter was decided based on substance and not form.  This would have been a far better argument, and one that I even agree with.

But the notion that because the case is old that the DA's office ought to have more than 45 days (what the law specifically allows) to decide whether to object to the motion is not exactly sensible.  The Legislature, in creating this law, knew exactly that motions under this law would be made about cases at least ten years old.  In fact, that is the whole point of the statute - to revisit old cases.  Therefore, it could hardly be said that the Legislature was unaware, in choosing the amount of time to give the DA's Offices to respond, that DA's Offices were going to be needing to locate files that were old.

In this particular case, it took me a week to get the court file from archives.  Not sure what the problem would be for the DA's Office.

But I should not complain too much.  I still think the motion will be granted.  If you have a ten year old conviction from New York and you think you want to get it sealed under the new law, take our online conviction sealing eligibility quiz or just call or text us at 718-268-2171.