Prior Criminal Conviction? Press Restart!

New York’s New Sealing Law- CPL §160.59

In this article, I’d like to bring to the community’s attention one of many recent advancements in the Criminal Procedure Law. Individuals and legal mavens across New York State have been applauding a recent law that is designed to forgive individuals who have served their time and had no new encounters with the law for the last 10 years. The law recognizes what so many have known for so long–breaking the law does not always make you a “bad person”. A criminal conviction is often the result of one mistake upon whose consequences may last a lifetime. New York Legislators and lawmakers have thus passed a law that seals old convictions in an effort that should give individuals hope for a positive future.

HOW DO CRIMINAL CONVICTIONS AFFECT YOUR LIFE?

Beyond having to pay costly financial penalties and serve jail time, criminal convictions can affect your life in more ways than you can imagine:

Disclosing criminal convictions on job applications. Criminal convictions could affect one’s ability to secure favorable employment in the future. While employers claim not to exhibit bias when it comes to a person’s criminal background, it is often a point of consideration when determining who should and should not be hired.

Discoverable in civil and criminal trials. For instance, an individual with a criminal conviction is involved in a car accident that results in serious personal injuries. Although one’s criminal record might not seem relevant in that scenario, the criminal record is discoverable by the defendant. That means that the defendant will learn of the criminal history and try to use it against the plaintiff during the course of litigation. This is similarly true for criminal cases. While judges will consider the age of the conviction, type of conviction (violent vs non-violent), and the manner in which it is being used, the conviction itself certainly complicates an increasingly volatile legal process.

Social stigma. Regardless of the conviction, many people have a negative reaction when they learn of an individual’s criminal history. Sealing the record is an effective tool for limiting who can obtain access to the sealed conviction.

Harsher criminal penalties. If an individual with a criminal conviction is involved in a future criminal matter, the prior criminal conviction could serve to enhance the sentence. Compare a case where a judge might be lenient to an individual with no criminal history with a case where the criminal defendant has a prior record, or “rap sheet”.

SEALING MY CRIMINAL RECORDS. AM I ELIGIBLE?

You may be eligible if:

at least 10 years have passed since you were sentenced (not counting time served in jail or prison) AND:

You only have 1 or 2 criminal convictions total.

Only 1 of those convictions is a felony.

Convictions for the following crimes are not eligible to be sealed:

Sex offense as defined in Penal Law Article 130

Criminal offense requiring registration with the state as a sex offender

Sexual performance by a child defined in Penal Law Article 263

Class A felony

Violent felony defined in Penal Law § 70.02

Felony conspiracy to commit an ineligible offense

Felony attempt to commit an ineligible offense

WHO WILL BE ABLE TO SEE MY SEALED CRIMINAL RECORDS?

If your motion for sealing is approved, your records will generally be sealed and not made available. Most employers will not be allowed to ask about or consider your sealed convictions.

Only the following individuals or agencies will be able to see your sealed criminal record:

You (or someone you choose)

Agencies carrying out law enforcement duties (including district attorneys’ offices, probation departments, and child protective services)

If you apply for a job as a police or peace officer

If you apply for a gun license, the agencies who review your application, and the FBI when it runs a background check if you attempt to purchase or possess a gun.

Moreover, a conviction sealed under the new sealing law is still considered a conviction in a future criminal case where a prior conviction enhances a penalty or is an element of the offense charged.

STATUTORY CONSIDERATIONS

Various other factors may affect an individuals eligibility under the new sealing law. Retaining the services of an attorney is paramount to securing your rights. The law is complex and difficult to navigate, especially for those who are unfamiliar with the law.

Specifically, in considering any such application, CPL §160.59(7) provides the sentencing judge or county or supreme court to consider any relevant factors, including but not limited to:

the amount of time that has elapsed since the defendant’s last conviction;

the circumstances and seriousness of the offense for which the defendant is seeking relief, including whether the arrest charge was not an eligible offense;

the circumstances and seriousness of any other offenses for which the defendant stands convicted;

the character of the defendant, including any measures that the defendant has taken toward rehabilitation, such as participating in treatment programs, work, or schooling, and participating in community service or other volunteer programs;

any statements made by the victim of the offense for which the defendant is seeking relief;

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; and

the impact of sealing the defendant’s record on public safety and upon the public’s confidence in and respect for the law.

Take advantage of the new sealing law. You did the time; now it’s time to leave it behind.

Applications to have records sealed can become complicated, especially with the required supporting documentation, which could include victim statements, circumstances surrounding the offense, the seriousness of the circumstance, the applicant’s character and proclivity for rehabilitation and, arguably most important, the basis for the applicant’s desire to have their record sealed. It is crucial to have competent counsel by your side. If you or a loved you know is interested in applying to have a criminal conviction sealed, or if you have general questions about how CPL 160.59 works, please feel free to contact The Law Offices of Jonathan Shalom at (516) 807-1748 for more information.

By Jonathan Shalom, Esq.