New York’s Official Website offers inadequate 160.59 Sealing Motion forms and incomplete advice.
If you search the web for information about New York’s new conviction sealing law, you will likely come across New York Office of Court Administration’s (OCA) website offering Do it Yourself forms and instructions for the process of applying to get convictions sealed under CPL Section 160.59.
These forms and instructions are a disaster. They fail to explain all that really needs to be done or alert users to areas where they have interpreted the sealing law in ways the District Attorney Offices may not agree with. Filing sealing motions with these forms will not place you in the best position to be successful, and may draw objections from the District Attorney regarding various legal assumptions made by whoever was responsible for creating the forms and instructions.
What follows is a true story (and cautionary tale) of the nightmare caused when a person who eventually became my client was lured into using the OCA forms and instructions and filed the motion herself.
After my future client filed her application using the OCA forms, she was contacted by the Court with a Court date for decision. I was contacted by my client about two days before the date set for decision by the Court.
My client was worried because the DA’s office had objected to her motion for sealing. The bases for the objection were 1) that she wasn’t eligible, and 2) that she didn’t deserve it even if she were eligible.
She didn’t understand why they thought she was ineligible because she followed the instructions on the do it yourself forms exactly. The forms and instructions clearly indicated she was eligible.
The DA’s response was long and complicated, full of legal argument. Her do it yourself application contained no argument because there was no place for it in the inadequate forms provided by OCA. Neither was there any clue that there was room for debate about her eligibility.
OCA, for example, did not highlight the relevant issue and say, “We think you are eligible in your situation, but this is open for debate and the DA’s Office may object, so prepare a legal argument about why you think you are eligible for sealing.” Of course not. In the ever growing war OCA wages against lawyers, OCA wants to factor lawyers out of the equation as much as possible. Highlighting an issue of legal debate would reveal the sealing motion for what it really is - a sophisticated legal motion that a non-lawyer ought never attempt, or at least ought never attempt using the OCA forms and instructions.
By the time I got involved, the Court, having received her do it yourself motion, and the DA’s sophisticated legal argument objecting to my client’s eligibility, had already written its decision - denying the application.
Realize what this means: It means that the only legal argument about whether or not my client should be considered eligible for sealing was made by the DA’s office. Since my client was lured by the OCA instructions to believe there was no issue about her eligibility and that she was in fact eligible, she could not have known to make an argument about it. When she received the DA’s response, she was mystified by the complex legal arguments being made over something she had no idea was an issue, and by the time she found her way to me it was too late.
Therefore the Judge had the benefit of zero argument on her behalf as to her eligibility, while the Judge had the benefit of a sophisticated legal argument prepared by a professional prosecutor appeals lawyer arguing that my client was ineligible for sealing.
So I did the best I could. I filed a motion to “reargue” although it should have been properly labeled a motion to argue, since my client made zero argument about an issue she didn’t even know existed, thanks to do it yourself instructions from OCA. My motion to “reargue” included a 30 page legal memorandum, making complex statutory interpretation arguments. I also identified and argued two other significant legal issues aside from the eligibility issue that my client did not spot because she was not a lawyer, and nothing in the OCA forms and instructions would have led her to make the arguments.
Realize how terrible this situation is from a practical standpoint. Even if the Judge agrees to revisit the argument, I now have to convince a Judge that a previously made decision was wrong. Psychologically, now, regardless of the technical legal rules that make it possible, the Judge is committed to an opinion about the law, and it is not favorable to my client. How much better from a psychological perspective is it to have the Judge decide the issue from a clean slate, where the Judge doesn’t have to reconcile having come to a different conclusion before.
Now under the circumstances, you would think that getting a chance to present legal argument to counter the DA’s position would be a no-brainer. Of course the Court would allow me to step in and at least even the playing field by reconsidering my substantive arguments, right? It’s only fair.
Or maybe not. We aren’t in a Kansas Anymore
In a hard lesson about why the Government can never be trusted to do the right thing, and why do it yourself lawyering against the Government is a trap meant to make life easier for the Government to do whatever it wants to people, behold how the Government responded to my motion:
She also appears to make an interest of Justice argument - she simply did not have the skill to understand the depth of the legal argument and should be given another chance to present her position. ...she cannot be given a second chance because she now realizes that an attorney may have been more persuasive or understood the application better. Defendant has not successfully shown that she is entitled to re-argument and her motion should be denied without further review.
...that defendant was an unsophisticated pro se litigant does not warrant, by itself, this Court expending judicial resources to review her application for a second time.
This is your Government at work. This is why you should never be lured by your Government into filing important legal motions yourself. When things go wrong, and they will, the same Government that was nice enough to supply you with forms and instructions will not only abandon you, but it will try to punish you without pity.
Suddenly it won’t be so simple and nice. Suddenly, the attitude will shift from “let us help you with these nice looking forms so you don’t need to spend money on a pesky lawyer” to “If you filed this yourself without a lawyer, that was your stupid mistake and your problem, sucker.” The Government will make arguments such as above, made to cause you to appear foolish - even if its forms and instructions were wrong or incomplete, and even if those forms they provided failed to warn you about a potential problem in the first place.
Welcome to the real world, sucker.
The DA’s office (your Government) in response to my legal argument argued that the Court shouldn’t even bother considering my legal arguments because my client already had her chance. According to your Government, it would be a waste of the Judge’s time to think about substantive legal arguments because the argument should have been made up front - the argument that the Government’s own forms and instructions did not suggest was required.
It remains to be seen how the Court will decide the issue, and whether the Court will do what the DA’s Office thinks is right - to throw my legal arguments (and her chances at getting the relief we think the law says she is qualified to receive) into the garbage without consideration.
While appeal is theoretically possible, the cost of appeals work can be extraordinary. My client may not have the means to file an appeal (appeal in this civil type matter is not available for free to all) and the issue could thus be lost forever to her.
Still want to file your 160.59 sealing motion yourself?
By Don Murray, Esq.
Don Murray is a partner in the New York City criminal defense law firm Shalley and Murray. He has been practicing criminal defense exclusively in New York for nearly 30 years. Since New York’s new conviction sealing law (CPL 160.59) went into effect in October, 2017, Mr. Murray has been actively involved in obtaining sealing of convictions for many people in New York City, Nassau County, and Westchester County. If you have one or two old New York State convictions, and you would like to explore the possibility of getting that conviction (or those convictions) sealed under the new conviction sealing law, call 718-268-2171 for your free eligibility screening.