Criminal Justice Insider

In the State of New York, a criminal conviction can have life altering consequences. After the jury delivers its verdict, and judgment is passed, a defendant can find himself or herself ineligible for student financial aid, unable to hold certain professional licenses, unable to adopt children, and even ineligible to vote. Because of such widespread and dire consequences, defendants are often concerned with the restoration of their rights and sealing of their records. Unfortunately, in New York, this is no easy task.

Unlike some states, New York has no “expungement” statute whereby a defendant can have his or her record sealed and the conviction erased entirely from his or her record. Instead, there is a patchwork of relief which restores some, but not all, of the status a defendant enjoyed prior to his or her conviction.

One relief is the sealing of a criminal record. In 2017, the New York State legislature passed a comprehensive revision of the statutes surrounding sealing of criminal records. Pursuant to Criminal Procedure Law Sec. 160.59, a defendant can have his or her criminal record sealed if the following criteria are met:

1. ten years have passed since the conviction
2. there has been no subsequent conviction, and
3. there can be no more than two total convictions on the defendant’s criminal record, and only one of the two can be a felony.

A wide array of serious offenses such as sex offenses, homicides, and violent burglaries and robberies are ineligible for sealing. Accordingly, there is a very high bar for having a conviction sealed.

Even if a defendant is eligible to have their conviction sealed, the sealing is not automatic. A court must first review and rule on the application. In deciding whether to seal the record, a judge will consider the circumstances and seriousness of the offense, the defendant’s character, victim impact statements, and the impact that sealing a record will have on the defendant’s rehabilitation and on public safety.

Moreover, the sealing pursuant to Sec. 160.59 is not comprehensive. The records can still be reviewed when applying to carry a firearm, by law enforcement with leave of the court, or defendant’s parole officer.

The sealing of the record alone does not restore the full array of rights a defendant had prior to his or her conviction. For that, a defendant must apply for a certificate of relief from disabilities pursuant to Correction Law Sec. 700. A certificate of relief from disabilities removes any automatic bar from employment or licensure resultant from a criminal conviction. Any defendant who has been convicted of only one felony is eligible for a certificate of relief. It is important to note that a certificate of relief from disabilities does not guarantee that a defendant will procure the license or employment he or she seeks. A licensing board or employer may still consider the conviction in determining whether to grant employment or a professional license. The certificate of relief from disabilities merely lifts any automatic impediment to applying for such benefits.

Managing and mitigating the collateral consequences of a criminal can be daunting. New York imposes stringent requirements before a criminal record can be sealed or rights restored. Even if a defendant is able to obtain that relief, it is far from complete.

For more information on the topic discussed, contact:

• Adam M. Felsenstein  |  felsenstein@thsh.com  |  212-508-7533