Being convicted of a crime can prevent you from getting a job or buying a home, and it can even have a negative effect on your credit history. The sealing of your criminal record can eliminate these types of problems by preventing people from seeing the record or using it against you.
On October 1, 2017 one of the most liberal criminal-record-sealing laws in the United States went into effect in the State of New York. The new law, Section 160.59 of New York’s Criminal Procedure Law, gives judges the discretion to seal up to two criminal convictions. Only one of the two sealed convictions can be a felony. Excluded from this new law are sex offenses, class A felonies, and violent felonies, the records of which may not be sealed.
How the Law Works
The new law has a ten-year waiting period, running from the date of the conviction or the date the convicted individual was released from prison. Criminal records that are sealed will not be available to the general public. However, law enforcement agencies and some licensing agencies will be able to access sealed records.
No More Employment Issues
This new statute also amends section 296(16) of the New York Human Rights Law. This amendment prohibits public and private employers from accessing criminal convictions that have been sealed. In addition, employers and occupational licensing agencies will be legally barred from taking any action that hurts the employment potential of an individual whose criminal record has been sealed.
Procedure for Sealing a Criminal Record
The new law sets forth the following procedure for applying to have a criminal record sealed:
- An application to seal the criminal record must be made to the court where the individual was last convicted.
- The application requires a sworn statement regarding why the individual seeks to seal his or her criminal record.
- The application is presented to the judge who sentenced the individual in the past, or, if that judge is no longer sitting in the criminal court, to a new judge.
- A copy of the application is served on the district attorney’s office in the county where the judge sits.
- The district attorney’s office has 45 days to object to the motion to seal the criminal record. If the district attorney’s office does not object, the judge will make a decision without a hearing. If the district attorney’s office objects, then a hearing will be held to determine whether to seal the record.
Standards for Sealing Criminal Records in New York
In deciding whether to seal the criminal record, the court will consider the following factors:
- How much time has passed since the individual was convicted;
- The circumstances and seriousness of the offense;
- Any other criminal offenses of which the individual has been convicted;
- The character of the defendant, including any steps taken toward rehabilitation, such as treatment programs, work, schooling, and participation in community service or volunteer programs;
- Any statements made by victims of the crime;
- The impact the sealing of the criminal record might have on the individual’s rehabilitation and his successful and productive reentry into society; and
- The impact the sealing of the individual’s criminal record might have on public safety.
The Effect of Sealing a Criminal Record
If a criminal record is sealed, all “official records and papers related 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(8). Exceptions to this rule apply to allow access to sealed records by courts, law enforcement, firearm agencies, and employers screening for the police department.
Elliot Schlissel is an attorney licensed to practice in the State of New York. His law firm, with offices in Nassau County, Suffolk County and Queens County, practices in family law & divorce, criminal law, personal injury matters, bankruptcy, and foreclosure defense.