Expungements

EXPUNGEMENTS

In New York state, you cannot "expunge" your criminal record. A record that is expunged is permanently erased. However, you can "seal" your criminal record, which means it will become invisible to the general public. Expungement and sealing are sometimes thought to be the same, but they are not. Expungement destroys a record, whereas sealing only closes the document to the public.

Adult Record Sealing

New York recently enacted a new law, which became effective on October 7, 2017, provides for general sealing authority for a wide array of adult criminal convictions, if certain conditions are met and various factors are found in your favor.

Required Conditions

•At least 10 years must have passed between your sentencing or release from prison and your application to the court;
•You have no current or pending criminal charges;
•You have no recent criminal convictions;
•You have not already obtained sealing of the maximum number of convictions allowed; or
•You have not been convicted of two or more felonies.
[N.Y. Crim. Proc. Law § 160.59]

Not Eligible for Sealing

•Most sex offenses, including those that require sex offender registration;
•Certain offenses defined by statute as “violent crimes,” even if no violence was involved;
•Crimes categorized as class “A” felonies;
•Certain other felonies defined in the statute.
[N.Y. Crim. Proc. Law § 160.59]

Factors Considered

•The time that has elapsed since your last conviction;
•The circumstances and seriousness of the offense for which you are seeking relief;
•The circumstances and seriousness of any other offenses for which you were convicted;
•Your character, including any measures you have taken toward rehabilitation, such as participating in treatment programs, employment, or schooling, and participating in community service or other volunteer programs;
•Any statements made by the victim of the offense for which you are seeking relief;
•The impact that sealing your record will have upon your rehabilitation and your successful and productive reentry and reintegration into society; and
•The impact of sealing your record on public safety and upon the public’s confidence in and respect for the law.
[N.Y. Crim. Proc. Law § 160.59]

Expungements

Effect of Sealing

If sealing is granted, all “official records and papers relating to the arrests, prosecutions, and convictions, including all duplicates and copies thereof, on file with the division of criminal justice services or any court shall be sealed and not made available to any person or public or private agency.”
[N.Y. Crim. Proc. Law § 160.59]

Exceptions apply:  The records remain available to enumerated “qualified agencies,” including courts, corrections agencies, and the office of professional medical conduct; to federal and state law enforcement for law enforcement purposes; to state entities responsible for issuing firearm licenses; to employers for screening applicants for police officer/peace officer employment; and to the FBI for firearm background checks. Additionally, law enforcement fingerprint records are not affected by the sealing order. Sealed convictions remain “convictions” for the purpose of sentence enhancement or establishing the elements of crime.
[N.Y. Crim. Proc. Law § 160.59].

The New York State Human Rights Law, was amended concurrent with the enactment of the sealing authority, prohibiting public and private employers and occupational licensing agencies from asking about, or taking adverse action (i.e., denying employment or licensure) because of a sealed conviction.
[N.Y. Exec. Law § 296(16)]

Rehabilitation Certificates

Even if you criminal record cannot be sealed, you can obtain a Certificate of Relief from Disabilities or a Certificate of Good Conduct. These are legal documents that are evidence of your rehabilitation. Both certificates serve similar purposes, however, the Certificate of Relief may be applied for right after you are released, while there is a waiting period to apply for the Certificate of Good Conduct.

Certificate of Relief from Disabilities

When you are unable to seal your New York criminal record, in many cases you may seek a Certificate of Relief from Disabilities. It does not remove your conviction from your record and your conviction will still appear in a background search, but a Certificate of Relief gives you a presumption of rehabilitation and restores most legal disabilities stemming from your conviction. It can restore your ability to own a firearm under New York law, restore your ability to obtain many professional licenses, and improve your chances of obtaining a better job. New York government agencies that issue licenses must consider this certificate when deciding to give you a license. This is also true of New York employers; they must consider your certificate when you apply for a job with them.

To qualify for a Certificate of Relief from Disabilities, you must have only one felony on your record and any number of misdemeanors. However, if you have more than one felony from the same indictment, that will be counted as only one felony conviction. There is no waiting period to apply, and in some instances you may do so while still incarcerated or during sentencing.

Certificates of Relief can be issued either by the sentencing court or the Department of Corrections and Community Supervision. If your conviction resulted in a commitment to a NY correctional facility or was in a federal court or other state court (and you reside in NY), then your Certificate would be issued by the Department of Corrections and Community Supervision, and all other cases would be handled by the sentencing court. In order to grant the certificate, the issuing authority must find that the relief to be granted by the certificate is consistent with your rehabilitation and with the public interest. Furthermore an investigation into your circumstances will be conducted and will include (but is not limited to) examining your employment history and other means of support, proof of payment of your income taxes for the last three years and proof of payment of restitution and fines.

If you have more than one felony, then you will not be eligible for a Certificate of Relief from Disabilities but you may be eligible for a Certificate of Good Conduct, which has much of the same effects as a Certificate of Relief, there is just a waiting period before you can apply.

Certificate of Good Conduct

If you have been convicted of two or more felonies and/or any number of misdemeanors, you may apply to receive a Certificate of Good Conduct. A Certificate of Good Conduct may eliminate any mandatory legal bar or disability enforced because of your convictions. This certificate restores your right to apply for certain occupational licenses, but does not guarantee they will be granted. Other rights may be restored as well such as the ability to be appointed legal guardian to a child, and the ability to vote if you are still on parole. In addition, only a Certificate of Good Conduct may restore the right of an individual to apply for "public office," such as a firefighter or a notary public.

There is a waiting period before you can apply, which depends on your most serious offense. It starts from the date of the last time you were released from prison or the date of your last felony conviction (if you didn’t receive time), whichever is later. If your most serious conviction was a misdemeanor then you must wait at least one year. If your most serious conviction is a C, D, or E felony, you must wait at least three years. If your most serious conviction is an A or B felony, then the wait is at least 5 years. The waiting period for a Certificate of Good Conduct begins on the date payment has been made on any fines imposed by the courts, or when you are no longer on parole or supervision by the courts.

The Department of Corrections and Community Supervision may issue the certificate once it is satisfied that certain conditions are met. The department must be satisfied that:
•You have conducted yourself in a manner warranting the issuance of the certificate; this means that during the mandatory waiting time you have displayed good conduct. You should have committed no new crimes and paid any fines or restitution.
•The relief granted by the certificate is consistent with your rehabilitation
•The relief granted is consistent with public interest
•If your previous convictions were in another jurisdiction you must demonstrate that there are specific facts and circumstances and specific sections of New York law that have an adverse impact on you. The Department of Corrections and Community Supervision will conduct an investigation into your circumstances, which will include looking at your employment history and means of support, proof of payment of income taxes and proof of payment of fines and restitution among other factors.

The main difference between the two certificates is who is eligible to apply for each. A Certificate of Relief from Disabilities can be issued, in certain situations, as early as at the time of sentencing. However, a Certificate of Good Conduct has a statutorily required waiting period. Both certificates may be issued to remove legal bars or disabilities or to remove only specific bars or disabilities. Only a Certificate of Good Conduct will restore the right of an individual to apply for public office. [N.Y. COR §703-a(1); §703-b(1)(a); §701(1); §702(2)]

Youthful Offenders

"Youthful offender" is a status granted to those who are charged with a crime alleged to have been committed when they were at least 16 years old and not more than 18 years old and have no prior felony convictions. They are eligible for automatic record sealing when their cases settle. While all records are sealed, they are still available to:
•the institution where the person was committed,
•the parole office,
•the probation department,
•the public or private elementary or secondary school in which the youth is enrolled, and
•the state registry of orders of protection.
[N.Y. Crim. Proc. Law § 720.35]

Frequently Asked Questions

What is in a sealed record?
When a record is sealed it will include official records, official papers, judgments of the court, orders of the court, and court decisions. All duplications and copies of these documents of file in all police agencies, courts, and prosecutor offices will be sealed. These sealed records are then not available to any person or public or private agency for any purpose. A record may be unsealed in the interest of justice, such as further proceedings and applications for particular employments and licenses.

What are the benefits of record sealing?
•Being able to legally state that you have not been arrested or convicted of a criminal offense to employers and landlords
•Becoming eligible for professional licenses and certificates you previously did not qualify for
•Increased eligibility for student loans, housing assistance, and government programs
•Improving your ability to obtain better job opportunities
•Improving access and admission to college and other educational resources
•Eliminating the concern and potential embarrassment of failing a background check by removing public access to sensitive personal information

Who can view sealed records?
A sealed record can still be viewed by specific people under the right circumstances, namely:
•You, if you get a copy of your own rap sheet;
•Any agency you apply to for a gun license;
•Your employer, if you apply to work as a law enforcement or a peace officer;
•Your employer, if you apply for a job that requires you to carry a gun;
•The military, if you apply to enlist;
•Your parole or probation officer, if you are arrested while on parole or probation;
•Prosecutors and other law enforcement officials, if they show a court that "justice requires" them to have the information;
•Sealed convictions for violations, such as disorderly conduct, are available to anyone who goes to the court where the conviction occurred.


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An attorney can help you to know if you qualify for criminal record sealing and guide you through the complicated process by which this is accomplished. If you don't qualify for record sealing, they may help you to obtain a Certificate of Relief or a Certificate of Good Conduct.