OCA Offers Ill Advised DIY New York Conviction Sealing Motion Form

New York’s Office of Court Administration Wrongly Encourages Non-Lawyers to File Complex Legal Motions Using Incomplete Form

In October, 2017, a new conviction sealing law became effective in New York that greatly expanded the circumstances when a person with up to two criminal convictions, including one felony, might be able to win sealing of the conviction(s). Shortly after the law became effective, the New York Office of Court Administration (OCA) posted instructions and forms to help people with criminal convictions prepare and file these motions themselves.

Here is a screen capture of the NY Courts website from September 30, 2018, where you can find instructions and forms needed to file a Do-it-Yourself conviction sealing motion. Red markup is mine.

Here is a screen capture of the NY Courts website from September 30, 2018, where you can find instructions and forms needed to file a Do-it-Yourself conviction sealing motion. Red markup is mine.

The new law is found in New York Criminal Procedure Law Section 160.59 and it contains several sections that outline the procedure to make the motion, who is eligible to make the motion, and the factors that a Judge should consider when deciding the motion. The stakes are very high in that gaining sealing of a criminal conviction, especially a felony criminal conviction can have a dramatic influence on the course of a person’s life and earning potential.

The new law is written in such a way that it is quite clear that this motion is not meant to be a “gimmie” to all. At least reading the law at face value suggests that the Legislature expected a considered process completely the opposite of “check this box here if you want your conviction sealed” on a post card. For example, the motion requires that a substantial amount of supporting material be gathered, organized, and prepared in a coherent form. The law requires that the applicant prepare a written statement making the case for why the Judge should grant the relief. The law requires that the District Attorney’s Office be notified of the motion and allows them to object to sealing the case. Upon objection by the District Attorney’s Office, or upon the Judge’s own will, an in-court hearing can be ordered that is governed by the rules of procedure and evidence, where witnesses may be called and examined, and evidence presented. The statute further identifies no fewer than seven separate factors that a Judge ought to consider when deciding whether to grant the sealing.

All of this clearly suggests that the Legislature did not imagine that applying for the sealing of convictions was meant to be a simple, meaningless, bureaucratic process, such that it would be foolish to go to the bother of involving a pesky lawyer.

Therefore, it is astounding, where something as serious as lifelong freedom from the burden of conviction is at stake, that the Office Of Court Administration would take pains essentially to advise people, “Sure, go ahead, take the shot yourself and see how it goes.”

The OCA Conviction Sealing Motion Form

The Form that OCA provides for download and use by applicants for conviction sealing is, from a lawyer’s point of view, a failure. Remember how I mentioned above that the law provides a framework of seven factors that a Judge should consider in deciding the motion? Well, when the law lists factors like that, lawyers know just what they have to do. They must make an argument that addresses all of the factors in order to make the best possible case for their clients. Lawyers must take each factor, one by one, and either note how this factor supports the client’s position, or if it clearly does not support the client’s position why the negative factor does not overwhelm the analysis as a whole. This type of legal analysis and argument is quite familiar to lawyers, and is the sort of thing that nearly every legal motion to the Court will involve at some level.

And yet the OCA conviction sealing motion form completely fails even to mention the existence of the seven factors outlined in the sealing law, and offers the “Do it Yourself” lawyer no opportunity to argue why those seven factors weigh in favor of granting sealing. If a lawyer were to file a sealing motion without making this critical part of the argument, that would be a serious lapse in legal representation, and a compelling argument could be made that the motion to seal was ineffectively prepared. It would be like making a motion to suppress physical evidence, outlining the facts, and then simply saying to the Judge, “You figure it out, but I think you ought to suppress the evidence.” This would be a sub par motion to suppress physical evidence, to say the least.

Here is a screen capture of part of the OCA conviction sealing motion form. My annotations are in red type.

Here is a screen capture of part of the OCA conviction sealing motion form. My annotations are in red type.

In theory, of course, leaving decisions up to the Judge without appropriate legal argument could result in the Judge granting the motion. This would essentially make the sealing motion a kind of lawyerless transaction, and might even be a sort of dream come true for the Government. Who needs criminal defense lawyers, anyway? Let untrained non-lawyers just do it themselves, and we’ll be sure to take good care of them. What could possibly go wrong with this kind of attitude?

Plenty. That’s why there is this thing called The Sixth Amendment that guarantees the right to counsel in criminal proceedings, because the Founding Fathers knew that despite the best of intentions, the Government just can’t be trusted completely like that.

I would like to believe that the training I received in law school and the experience I have gained in the practice of law make my input on legal issues worthwhile. I know the Court system wants to seem nice and friendly and helpful. But I am not so sure that it is all that nice and friendly and helpful to encourage non-lawyers to prepare and file complex legal motions that fail even to make a critical portion of the argument. As much as New York OCA wants to dream of a lawyerless world of criminal law, you just need a lawyer. The Founding Fathers thought having legal advice in criminal matters was so important they built the requirement for a lawyer right into the Constitution. Check out The Sixth Amendment. Enormous energy has since gone into developing and protecting that basic premise of freedom that holds the Government to account even when it seems like the Government is just trying to be nice.

But beware the Government when it wants “to save you trouble” of needing to exercise a fundamental right. A sealing motion is a complex motion involving an immensely important decision. This is not the place for Do it Yourself lawyering.

Don Murray is a partner in the New York City Criminal Defense law firm Shalley and Murray. He has been practicing law for 27 years in New York City Criminal Courts. If you would like help with a sealing motion in New York, call or text him at 718-268-2171.