On September 28, 2018, I wrote an article critical of the New York Office of Court Administration (OCA) for suggesting that people file applications to seal convictions under the new sealing law (CPL 160.59) without the assistance of lawyers using a form and instructions available for download from its site. I was critical of OCA for pushing the complex application process, invoking several tricky legal concepts and involving such high stakes as something for people to do on their own, without a word of advice from a lawyer.
And just what I suspected would happen, has happened. It only took a few months.
A person, who is now my client, found the OCA website, and was lured into filing a do it yourself sealing application using the OCA form and instructions.
And then I got the following email from this person:
Hi, my name is [ ]. I recently made the mistake of putting in paperwork to seal by myself without legal representation. The [ ] DA responded back with their objection and I have a hearing on [ ]. I know its very short notice but I really am desperate and need legal representation.
The brackets indicate where I have removed personal or case identifying information.
When I reviewed the paperwork in the matter, I learned that the DA’s Office objected to the motion based on a legal argument regarding whether or not the client was convicted of an “eligible offense” within the meaning of the statute. Not being a lawyer, this client was unaware that it was even possibly an issue, and the OCA instructions were of no use in the matter. Therefore, the client, in the do it yourself application presented no argument about the eligibility issue.
But the DA’s Office sure did in its response.
Further, the DA’s Office, in its response, prepared by a professional lawyer/prosecutor, also took the Court through a detailed argument about why the client ought not have the conviction sealed anyway given the seven factor analysis that the Judge must use to decide the matter if the client is determined to be eligible. Since the OCA form doesn’t even mention the seven factor analysis, the client never provided any argument about it or reasons why the Judge ought to weigh those seven factors in the client’s favor.
The client, unaware that a response to the DA’s arguments was even possible, did not respond. The client came to me just days before the Court’s decision was due. By this time, the Court already had prepared a decision, on two important issues, without any argument from the client’s perspective. And just so you know, there were excellent legal arguments to be made in the case on both issues.
On the decision date, the Court denied the client’s application, agreeing with the DA’s Office that the offense was not eligible for sealing, and in the alternative denying the client’s application on the grounds that the seven factor analysis weighed against sealing.
This meant that in order to get into the game, we had to file a “motion to reargue” which is a TWO step argument. The first step is to ask the Judge for permission to make additional arguments. Since you have to ask permission, that means that the Judge has the power to deny permission. The second step is to present the argument that should have been made prior to the Judge’s decision, and try to convince the Judge to change his or her mind. Of course, legally, the presentation of sound arguments should be enough to cause a Judge to change his or her mind. But in the real world, where Judges are humans and not machines, the concern is that there is a certain psychological impact once the Judge has rendered a decision. The worry is that the Judge, having made a decision will be psychologically committed to defending that position as opposed to being able to hear out and carefully weigh the arguments evenly. This is not to say that Judges are incapable of overcoming such psychological temptations. But from an advocate’s perspective, you generally want to avoid being in this position. It is considered a superior position to start from a clean slate than to be in a position where you have to convince a Judge that a previous ruling was wrong.
Further complicating the situation is the notion of appeal. The Judge’s order can be appealed, but the time to file a notice of appeal is 30 days from the date of the Order appealed from. That same 30 day rule applies to the filing of a motion to reargue. If you wait until the Judge decides the motion to reargue to file the notice of appeal, then you will be too late to file the notice of appeal. If the Judge then denies the motion to reargue in the sense that the Judge denies even to consider the legal arguments, the appeal is lost forever. Therefore, to be on the safe side, you must file the motion to reargue and the notice of appeal both within the same 30 days.
The problem with filing the notice of appeal at the same time, is that once you file a notice of appeal, you have 6 months to file the formal appeal. (The notice is just a piece of paper saying that you intend to file a formal appeal.) So the clock is running on the appeal. So if you don’t want to pay for an appeals lawyer to prepare an appeal if you don’t have to, you are tempted to see what happens with the motion to reargue. But if you wait to see what happens with the motion to reargue, the time it takes to get that resolved will tick away from the time you have to prepare the appeal. If, therefore, it takes two months to finally get a decision on the motion to reargue, and if that decision denies the motion to reargue at all, then you now only have four months to prepare and file a formal appeal. This can be a challenge for an appeals lawyer. Appeals are an enormous amount of work.
And so, there we are. I prepared a 32 page motion to reargue, drawing upon decades of experience in criminal law, invoking several complex statutory construction arguments and attacking the decision’s reasoning on several fronts. This motion and the arguments it contains are simply beyond what could reasonably be expected of someone without formal legal training and experience. Everything isn’t a do it yourself project.
It would have been a lot less stressful and it would have been far better for the client, had the client contacted me up front. We would not be in the position of having to beg for the opportunity to reargue, and we would not be in the position of having to convince a Judge who has already decided the issues to decide that the original decision was wrong.
These applications for sealing convictions under CPL Section 160.59 ought not be attempted, ever, without a lawyer.
Don Murray is a founding partner of the New York criminal defense law firm Shalley and Murray. Since the new sealing law became effective in October, 2017, Shalley and Murray has been regularly filing sealing applications for people in a variety of circumstances, including many unusual situations requiring careful analysis and argument. Don’t be lured by the sub-par do it yourself form and instructions from OCA. This application is too important and can be quite complex, invoking a variety of subtle legal issues. If you have a an old conviction from New York that you would like to see about getting permanently sealed under this new law, contact Mr. Murray at 718-268-2171.