Section 160.59, New York Criminal Procedure Law

Effective October 2017

 

Under the newly-enacted §160.59 of New York’s Criminal Procedure Law, you will be able to seal up to two criminal convictions (only one felony) for all crimes except violent felonies, sex crimes and class A felonies, and only after a 10-year waiting period from the date of your conviction or release from prison.

The bill also amended the New York Human Rights Law to cover convictions sealed under this new authority.  Starting in October 2017, public and private employers and occupational licensing agencies will not be allowed to ask about or act upon a sealed conviction.

Key points in §160.59:

  1. Sealing is not available to individuals convicted of more than 2 crimes or more than 1 felony.

  2. Multiple eligible convictions “committed as part of the same criminal transaction” are considered a single conviction.

  3. You cannot waive eligibility for sealing as part of a plea of guilty.  If there is a waiver it will be deemed void and wholly unenforceable.

SEALING means:  

Once sealed, the records will not be visible to “any person or public or private agency" (such as employers and government agencies). 

HOWEVER, the sealed records will still be made available to:

  • The Defendant or Defendant’s designated agent

  • Immigration Authorities

  • Federal and State Law Enforcement Agencies

  • Government Licensing Agencies (i.e. for the issuance of gun licenses)

  • Applications for Employment as a Police Officer

  • The FBI (purchasing a gun/firearm)

PROCEDURE:

  1. Your attorney will file an application in the jurisdiction in which you were convicted of the most serious offense, or, if the offenses are of the same classification, then in the court in which you were last convicted.  The application is complex and will require the help of an attorney.
  2. The District Attorney has 45 days to respond or object to the motion.
  3. If the District Attorney does not object the Judge will decide the motion based on your attorney's motion and arguments.
  4. If the District Attorney objects then the Judge will hold a hearing.  Your attorney and the DA will present their cases, present witnesses and evidence, and the Judge will decide on the motion to seal your record.

The Judge will consider:

  1. The amount of time since your last conviction (it must be 10 years since the last conviction or the date of your release from incarceration).
  2. The circumstances and seriousness of the offenses (whether the arrest charge was not an eligible offense - violent felonies, sex crimes and class A felonies)
  3. The circumstances and seriousness of the other offense
  4. The character of the Defendant
    • Treatment Programs
    • Work
    • Schooling
    • Participating in Community Service
    • Other Volunteer Programs
  5. Any statement made by the Victim
  6. The impact of sealing the Defendant’s record upon his or her rehabilitation and upon his or her successful and productive reentry and reintegration into society
  7. The impact of sealing the Defendant’s record on public safety and upon the public’s confidence in and respect for the law.

Your application will be denied if:

  1. You were required to register as a sex offender.
  2. You previously obtained sealing of 2 offenses.
  3. You have been convicted of more than 2 offenses.
  4. Less than 10 years have passed since the date of your last conviction or the date that you were last released from incarceration.
  5. You have been arrested and have a charge pending or you were recently convicted of any crime.
  6. You have been convicted of more than 1 felony
  7. You have been convicted of more than 2 crimes

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