Our first motion to seal under the new law, filed shortly after the law became effective, was granted today, cleaning the slate for our ecstatic and emotional client. I was so happy to be a part of the process for her and glad that all of her hard work and perseverance over the last 12 years translated into this wonderful outcome. Hers was a story of great hardship overcome by patience, hard work, and faith. If you have a similar story while suffering under the burden of one or two criminal convictions, maybe this new sealing statute can work for you too. The new conviction sealing law is truly giving people a chance to make good on mistakes from long ago. It is an honor to be able to help make sure that they get the relief that the law allows.
Our first effort at a motion to seal a conviction under the new law looks like it will be a success. We received confirmation today that the District Attorney's Office, upon reviewing our motion, has affirmatively consented to the sealing of our client's conviction. They consented even though our client's original arrest included non-eligible, A felony charges. We could not be happier. We need to wait for the Judge to make the final decision, but with the support of the District Attorney's Office, it will be hard to imagine that the Judge will disapprove.
This is fantastic news and a great way to start this new and exciting way to help people put their past mistakes behind them.
Just had an experience with a sealing client who almost didn't bother to explore the issue because he thought he wouldn't be eligible. This story highlights why it is important not to assume anything.
The client had a conviction for Criminal Possession of a Weapon in the Third degree more than ten years ago. He had heard about the new sealing law, but also had heard that violent offenses were not eligible. He had made application for a pardon a few years ago, but was rejected because they told him that he was ineligible for a pardon because his conviction was "violent". Therefore, when he heard that the new sealing law did not apply to those with "violent" convictions, he almost didn't even bother to explore the issue with a lawyer.
But ultimately, he did contact me to rule it out. And it is a good thing that he did. It turned out, in his case, that the conviction WAS eligible, and we are now in the process of making his application.
So where was the confusion? Why was he told by the people dealing with pardon applications his conviction was violent, if in fact it were not? And how could a felony weapon conviction not be violent in New York?
The answer is that the term "violent" can mean different things in different circumstances. In common use, the word violent could have a loose sort of meaning that could apply in many different contexts and to many different degrees. The law does not usually operate in such a broad and general way, however.
Our legislature has decided to classify some felonies as violent for purposes of sentencing guidelines that Judges must follow. If a crime is classified as violent, this imposes some very severe and strict rules about the range of possible sentences, and even requires mandatory minimum prison sentences in most cases, even if it is the person's first arrest.
Interestingly, however, the Legislature uses the classification of "violent" sometimes just for purposes of sentencing to make sure that certain crimes get punished severely, even if the crime itself doesn't involve actual violence. The classic example of this is Burglary in the Second Degree (burglary of a home). The crime of Burglary in the Second Degree does not require that any violence occur at all. In fact, the victim need not be awake or even home. And yet the Legislature classified Burglary in the Second Degree as a C violent felony that carries a mandatory minimum of 3 1/2 years (even for a first arrest). The Legislature classified it as a violent offense in order to access the more severe penalties it had set up for traditionally violent offenses.
On the other hand, there are crimes that can include violence that the Legislature has chosen not to classify as violent for purposes of sentencing. The classic example here is Robbery in the Third Degree. A Robbery in the Third Degree would be say, stealing a stick of gum from a candy store and pushing the store security guard to the ground in order to escape. The Legislature classifies this as a D NON violent felony, and therefore the super strict and severe sentences associated with the offenses classified as violent would not apply.
When the Legislature wrote the sealing law, the Legislature tied eligibility for sealing in part to its definition of "violent felony offense". Therefore, in order to be eligible for sealing a conviction could not be classified as a "violent felony offense" under this specific law. That means that eligibility on this point simply boils down to whether it is on a very specific list written down by the Legislature. It has nothing to do with an evaluation of "violence" in some broad, loose way. It just matters whether it is on the list.
It so happens, however, that most felony weapons charges are on this list. Therefore, most of the time, a person with a felony weapons conviction is going to be ineligible to have the conviction sealed.
But not always.
In this case, my client was convicted of Criminal Possession of a Weapon in the Third Degree (PL 265.02). There are quite a few separate ways to be guilty of Criminal Possession of a Weapon in the Third Degree, and they are individually listed in "subdivisions" of the offense. If you have a conviction for 265.02, you will need to know which particular subdivision applies to you. It turned out that my client was convicted of subdivision 3, relating to possession of a "defaced" weapon. And guess what. Subdivision 3 is NOT ON THE LEGISLATURE'S LIST OF VIOLENT FELONY OFFENSES.
That means, that my client's conviction for PL 265.02 (subdivision 3) IS ELIGIBLE for sealing under the new sealing statute.
This is particularly interesting because it was often, over the years, a part of plea bargaining of gun cases to make efforts to settle gun cases with the defaced weapon charge for the very reason that it was non violent and offered some more flexibility for sentencing. Therefore, there are likely a great many people who might have been charged with other, non-eligible gun offenses, who actually settled their cases with eligible, non violent pleas. There are likely people, then, under the mistaken impression that they are not eligible for sealing, just because they don't realize, or don't remember that their conviction was a settlement and that it might have been different from what they were charged with.
The lesson here is not to assume anything. Contact a lawyer. In order to make it simple, obtain a certificate of disposition from the Court for your case and THEN call a lawyer. You will be able to tell the lawyer exactly what your conviction was for, INCLUDING THE SUBDIVISION.
Only this way will you know for sure. Worst case, you spent $10 on a certificate of disposition and you spent a few minutes talking to a lawyer who can give you the answer. Best case, you may discover, as my client did, that he was in fact eligible for sealing of the conviction.
Our first Motion to Seal a Conviction under the new New York conviction sealing law (CPL Section 160.59) was filed shortly after the law became effective. Our client approached us earlier in the year, and we spent considerable time gathering the necessary documentation, preparing, and polishing the motion so that her motion could be among the first to be filed.
It was interesting to file a brand new sort of motion because even the court clerks were new to the process. The filing of the motion created a bit of a sensation, and there was some discussion about procedure, but in the end it was filed and we have a Court date. The first Court date is a little more than 45 days out to allow the Prosecutor's Office an opportunity to review the motion and decide whether or not to object.
We are quite hopeful that this first motion will be granted on the strength of the inspiring story of our client since her release from prison more than ten years ago. I believe that this client is the very poster child for New York's new conviction sealing law.
And we have others in the pipeline to be filed soon, all with their own inspiring stories of perseverance in the face of adversity.
It is exciting to be part of this happy process. Terrible burdens and barriers in life will be lifted for people who have struggled to overcome life with a conviction. To help see to it that the hard work of years of rehabilitation will pay off will be a fantastic, uplifting experience.
If you are struggling with a criminal conviction in New York (or even two), contact us at 718-268-2171 to see if you might be eligible to get the conviction(s) sealed under the new sealing law. Share this information with a friend if you know someone who is currently suffering with the burden of a conviction (or two) from New York State. We can help. We WANT to help. It is the dawn of a new day.
Thanks to the new conviction sealing opportunities available in CPL Section 160.59 in New York, beginning in October of this year, I am blessed with nearly daily heartwarming stories from people who this new law is meant to help. For the last 25 years, I have been a criminal defense lawyer, and therefore I have been regularly exposed to clients in desperate situations. In some cases, the news is not happy and hard choices often must be made.
Since the new conviction sealing law was enacted, and we have made it known that we will be handling these cases, the calls have been coming in. And it has been one positive story after the next.
After already having listened to many of the stories of people thrilled at the possibility of shedding themselves of the burden of a criminal conviction, I can say without hesitation that this new law should be a stunning success and that it should be a great source of justice and goodness in the world.
Client confidentiality, especially in this context of someone hoping to put a conviction in the past, demands that I not specifically reveal identifiable details of these stories, but I can describe what I have been hearing in general.
The stories I have been hearing are of good, decent people, at one time in the distant in the heat of some moment of weakness or suffering from being young and foolish, or in the grip of some sort of addiction, engaged in behavior that does not represent who they are. Sadly, however, they ended up with a criminal record, which until now was a forever thing. Opportunities vanished or become difficult to find. Options became limited.
But the wonderful thing about the many people I have already spoken to is that at least they have managed to find some kind of way to endure and overcome up to a point. They have worked hard, sometimes at multiple jobs. They have not been in trouble since the conviction ten or more years gone by. Inevitably the people who have contacted me feel as if the person who got the conviction was some other person from a lifetime ago. And although of course they had done wrong and this is the consequence, on hearing what they have done since the conviction, it seems to me impossible for anyone with the smallest compassion in their heart to feel as if the burden of criminal conviction has become unjust in these cases.
Multiple people have told this compelling part of the story, that is that they have managed to find their way in some business or another, often thanks to a miraculously sympathetic boss who is aware of the conviction. But they have reached the upper limit of their advancement in the company because of the conviction. Everyone would love to see them advance, but strict rules about those with prior convictions operate as a bar with no exceptions. In fact, the extent to which certain sympathetic bosses will go for many of the people who contact me is extraordinary and heartwarming. In at least two cases so far, my clients have told me in fact that it was their bosses who brought my law firm and our sealing service to their attention in the first place.
I love hearing the stories from people who call about sealing. They are universally stories of sacrifice, perseverance, and overcoming of seemingly unfair obstacles without complaint. They are exactly the sorts of stories that this new law has been built to address. Prior to this new law and our sealing service, I would occasionally get calls from people who had these stories, looking for a way to get a conviction sealed. I would have to turn those people away, left only with the deeply unsatisfying bureaucratic response of, "I'm sorry, there is nothing I can do."
But not anymore. Now there is something I can do, and I have to say that it is exhilarating to be able to be a part of it. I can't wait. I can't wait to be there at the undoing of a convictions from long ago and far away for people who have proven that they are not defined by their convictions.
Some people hearing about the new conviction sealing law cynically imagine drooling, sneering criminals leaping at the chance to hide their crimes so as better to prey upon the rest of us in the future. My experience so far has been that the people I have spoken to about taking advantage of this new law are as far as you can get from drooling sneering criminals.
I suspect that if attorney client privilege permitted me to tell the stories I have heard so far, there would hardly be a dry eye in the audience. I can imagine few people who would be opposed to sealing these peoples' convictions.
Please keep the stories coming.
New York's new criminal conviction record sealing law (Criminal Procedure Law Section 160.59) requires that a complex motion addressing a series of legal and factual issues be filed and argued to a Judge. Further, the new record Sealing Law creates the possibility that a Judge will require a formal hearing in court, complete with direct and cross-examination of witnesses and the presentation of evidence. If you want to have the highest chance of actual success with getting your New York conviction record sealed, then you are going to need the help of a lawyer.
While it is possible that the Court Administration will prepare some sort of self help form for people to fill in and submit, it stands to reason that for a motion with so much at stake, that calls for honest to goodness legal argument, and possibly even the need to conduct an evidentiary hearing before the judge who will decide the motion to seal your record, it would be most unwise to attempt it without help from an experienced criminal lawyer.
You have lived with a criminal conviction record for years. You understand how a criminal conviction can hold you back. You are unlikely to get more than one chance to make this motion. So get the help of a lawyer to make the motion to seal the conviction record.
An experienced criminal lawyer knows how best to draft the motion to seal a conviction record for the Judge who will decide it. An experienced criminal lawyer may well have been appearing before and arguing cases before the same judge for years and will then have direct experience with persuading the Judge who will decide your motion to seal the conviction record. If the Judge orders a hearing on the motion, a criminal defense lawyer will have the professional experience to know just how to do it. If the judge orders a hearing on the motion to seal the conviction record, are you familiar with the rules of evidence and with direct and cross examination?
Now is not the time to assume that this motion to seal a New York criminal conviction record is like applying for a driver's license. Motions to seal criminal conviction records in New York under New York's new sealing law are serious, and need to be taken seriously.
You need a lawyer to help you if you want to have the best chance of success getting your New York criminal conviction record sealed under the new conviction record sealing law.
The statement that you must have at least ten years between the conviction you want to seal and the time you file the motion under Section 160.59 is generally true.
But sometimes, ten years from conviction can mean more than ten years from conviction.
Under Section 160.59, if you served a prison sentence connected to your conviction, then the ten year clock doesn't start ticking until the date you were actually released from custody. Therefore if you were convicted in 2006, it might be tempting to assume that as of today (in 2017) you are more than ten years out and therefore eligible for sealing under Section 160.59. And you might be. But if you were convicted in 2006, sentenced to three years in prison, and released in 2009, then you would not be eligible to file a motion to seal under Section 160.59 until 2019.
Also, if for any reason you spent time in custody since your 2006 conviction, the ten year clock stops ticking while you are in custody. This means, for example, that if you did not initially go to prison, and were simply put on probation, then if you were later violated on probation and sent to prison, that time you spent in custody for the probation violation would not count toward the ten years.
Therefore, in this way, ten years doesn't always mean ten years for purposes of motions to seal convictions under Section 160.59.
If you only have eight or nine years behind you, it may be tempting to be discouraged and feel as if "there is nothing you can do" until ten years have gone by. The truth of the matter is, however, that given the complexity and depth of the motion required under Section 160.59, it actually makes sense to start prepping to make a motion to seal a conviction under Section 160.59 well in advance, even years in advance.
Get Help Making Sure that You Will Be in a Position to File the Best Motion You Can
Part of the reason it is helpful to prepare for a motion to seal under Section 160.59 well in advance is that the Judge who decides your motion is going to want to know how you have filled the previous ten years. See my article about what Section 160.59 requires the Judge to consider. What have you done? Have you done anything to suggest that you have taken steps to separate yourself from the incident or incidents that you are now trying to get sealed? If the answer is no, then this section of the motion is going to be mighty thin and your lawyer may be hard pressed to make up ground in other aspects of the motion. Your likelihood of success in convincing the Judge to seal your conviction will be diminished or destroyed.
So if you have a couple of years to go, then instead of thinking of it as two more years to wait, think of it as two full years to take steps to do things that will fill this section of your motion to seal with all sorts of wonderful things for the judge to find out about.
Your lawyer can help you develop a plan.
For our clients who choose to start the preparations for filing the motion early on, even before they are eligible to file the motion, we will sit down and develop a plan of action that will put them in a superior position to make a successful motion than if they simply waited to make the motion without preparation.
In each case it will be different of course, because each person is different with a different background and a different sort of problem to overcome. Have you contributed to the community in some way over the years? If so, how, and how often? Have you pursued educational goals? How far have you gotten? Have you addressed any addiction or other issues that contributed to the problem in the first place? Where? When? How? With years to go, it should not be a problem to gather the relevant information and proof without having to scramble at the last minute. Also, with years to go, if you have been less than diligent in certain areas where a Judge might expect you to have been more diligent, there is time to take the necessary steps in a reasonable way that a Judge will actually appreciate.
GET YOUR CRIMINAL HISTORY REPORT FROM NEW YORK STATE
Once the time to file begins to draw near, we will make sure our clients obtain a full UNSUPPRESSED Personal Record Review from the New York State Division of Criminal Justice Services. This unsuppressed version of your criminal history report will reveal all contacts with the criminal justice system, including cases that have been sealed.
Of course as part of the process of filing the motion, the Court is going to require that an applicant for sealing be fingerprinted anyway. But I believe it is important to make sure that there will be no surprises when this is done. Everyone is entitled to order these records for themselves and it will make sure that there is nothing forgotten or remembered incorrectly about an applicant's past that will delay or even cause a denial of the motion.
Therefore, it makes sense to get this done in advance as one of the first steps toward making a motion to seal under Section 160.59.
If you are fortunate enough to get your conviction sealed under Section 160.59, you should know that the sealing is not absolute. In limited circumstances, there will be times when the sealed convictions are available for agencies (mostly related to law enforcement) to see and consider.
As a general rule, Section 160.59 provides for the sealing to work as follows: The sealed convictions are not made available to any person or public or private agency except as provided for in subdivision nine of this section, although fingerprints, palmprints and photographs are retained.
Section 160.59(9) spells out the list of persons or entities that are allowed access to convictions sealed under Section 160.59.
(a) The defendant or the defendant's designated agent
Of course the person whose record it is will have access to the record. In addition a defendant is allowed to authorize an "agent" (presumably by notarized letter) to access the record on his or her behalf.
(b) Most Law Enforcement Agencies
"Qualified Agencies" defined in Section 835(9) of the Executive Law of New York and other federal and state law enforcement agencies will have access to convictions sealed under Section 160.59, but only when acting within the scope of their law enforcement duties. This means that law enforcement agencies to which this section applies will not be lawfully accessing sealed convictions if they are just plugging names in the computer at work for laughs. To run a check of sealed convictions, they will need to be acting within their law enforcement duties.
(c) State or Local Gun Licensing Agencies
Unsurprisingly, a conviction sealed under Section 160.59 will be available for review by state or local agencies running background checks to establish eligibility for access to guns.
(d) Employers of Prospective Police or Peace Officers
Again unsurprisingly, a person who applies for the job of police officer or "peace officer" as those terms are defined in Criminal Procedure Law Sections 1.20(33) and 1.20(34) will be made to answer even for convictions that have been sealed under Section 160.59. The statute specifically requires, however, that such an applicant be confronted with the sealed convictions and given an opportunity to explain.
(e) The FBI, in connection with background checks for applications for gun purchases
Specifically, the Criminal Justice Information Services Division of the FBI will have access to sealed convictions under 160.59 in connection with background checks associated with applications to purchase or possess firearms.
Other Ways the Conviction May Still Haunt You
In addition, Section 160.59 also makes clear that a conviction sealed under 160.59 would still qualify as a conviction in situations where having that conviction would serve to enhance the scope of punishment for a subsequent conviction or if having that conviction would be an element of a new offense.
In some cases, the scope of punishment you face for a new charge is enhanced because of a previous conviction. In other cases, having a prior conviction can be part of a new crime itself. For example, possession of a weapon in the fourth degree under Penal Law 265.01 is a misdemeanor for people who have no criminal record. It is a felony, instead of a misdemeanor, however, for a person who has a criminal conviction to commit the offense of criminal possession of a weapon in the fourth degree. A person who has a criminal conviction sealed under Section 160.59 could still be convicted of a felony version of possession of a weapon. The fact that the prior conviction was sealed under Section 160.59 would not prevent prosecution.
But apart from these limited circumstances, the information about the existence of a conviction sealed under Section 160.59 will not be available.
Section 160.59 clearly indicates that a motion to seal a conviction is going to have to be a sophisticated process requiring professional help. The statute is specific about quite a few elements that must be made part of the motion to seal, the absence or inadequacy of any one of which will result in immediate denial of the motion.
A motion to seal a conviction under Section 160.59 will require some legwork to obtain the appropriate documentation, and it will require attention to detail and argument. In some cases, adequate preparation of a motion to seal will require time to gather the relevant requirements and present them in a pleasing and professional package for the judge to review.
Although the lawyer preparing the motion is free to include any relevant background as part of the motion to seal, the statute specifically requires the following:
1) A copy of a certificate of disposition (or similar documentation) for any offense for which the defendant has been convicted.
The law's use of the phrase "any offense" means that a certificate of disposition will be required even for arrests that resulted in non-criminal convictions, such as for disorderly conduct. A certificate of disposition is an official Court document, available from the Clerk of the Court, that proves the outcome of a particular criminal case. They are available for $10 each (cash) from the Court Clerk in the Court where the conviction occurred.
Arguably, "any offense" could also be interpreted to mean traffic offenses and parking tickets. I suspect that Criminal Court judges are unlikely to be particularly moved one way or another by parking or traffic offenses, at least in New York City, but until this is specifically worked out in some way, I would probably err on the side of caution and present documentation, where possible, of traffic and parking offenses as well. As a general rule, this would not be a situation where I would want to give anyone the opportunity to complain that my motion was somehow incomplete, or consider it misleading.
This provision could create some opportunity for delay, if the person has had a number of non-criminal convictions or has been frequently ticketed. Gathering certificates of disposition from the Court can require trips down memory lane and some investigation.
In order to be compliant with this requirement, it will likely be wise to make efforts to generate a criminal history for the applicant up front to make sure that traffic tickets, pink summonses, and non-criminal convictions like disorderly conduct are accounted for before the motion is filed.
This requirement suggests that a person who has fifteen prior misdemeanor arrests that resulted in disorderly conduct convictions will not be in a position to avoid having the judge consider this history when deciding the motion to seal. It will mean that a person with multiple arrests that resulted in non-criminal convictions will need to explain this in some way in the motion to seal.
2) A sworn statement of the defendant indicating whether he or she has filed, or intends to file any application for sealing of any other eligible offense.
Since the law allows for up to two convictions to be sealed, it is possible, for example, that a person could have a motion to seal in two different jurisdictions, if the person has an eligible conviction in Queens and an eligible conviction in Manhattan. This requirement would force the applicant to alert the judge in either county of the existence of pending motions or of the intention to file a motion to seal elsewhere in the future. It would also require an applicant for sealing with two eligible convictions to advise the Court if he or she is filing a motion only to one conviction for the moment but intends to file for another in the future. Frankly, I am not sure what advantage would be gained by making piecemeal motions in the same Court, since the requirements of the motion would reveal the existence of the second eligible conviction anyway. There would be no way, therefore, to sneak a motion by without the judge being aware of every conviction.
3) A copy of any other application to seal another conviction that has been filed.
If there is another motion to seal a conviction out there, it must be made a part of the motion in the present case.
4) A sworn statement as to the conviction or convictions for which relief is being sought.
This requires that the applicant identify in a sworn statement the specific conviction or convictions sought to be sealed.
5) A sworn statement indicating the reasons why the Court should grant sealing, along with supporting documentation.
This requires that the applicant for sealing sign a sworn statement outlining the reasons why the Court should grant the sealing. This will amount to an argument for the Court to use the discretion allowed to grant the sealing and will involve the Court needing to weigh the various factors specifically identified in the law (see my article discussing the 160.59 sealing law), as well as anything else the applicant and the lawyer believe may help the Judge come to the right decision.
In support of this argument, the law invites "other documentation" as necessary. Supporting documentation that might help shore up arguments in the motion could be proof of completion of rehabilitation programs, educational certificates, community service records, letters of recommendation, and similar proof of good behavior, good conduct, and good character.
A motion to seal under Criminal Procedure Law 160.59 is a sophisticated legal motion and argument that needs to be investigated thoroughly, organized, well-written, thoughtfully argued, and professionally presented in order to have the highest likelihood of success. In order to have the best chance of success, it should be the product of diligent work by an experienced criminal defense lawyer who has experience arguing cases in the same court before the same judges. I don't believe that successful motions to seal convictions under 160.59 will be prepared as rushed, boiler plate templates.
These motions are serious, there is a lot a stake, and they need to be taken seriously.
An important question to consider is of course WHO will be deciding motions to seal criminal convictions under Section 160.59. Especially in a situation where the rules appear to give judges a wide ranging discretion, it would be expected that different judges will approach 160.59 sealing from a variety of different perspectives. There will be variation. Ultimately, some judges will have higher rates of granting sealing than others.
Section 160.59 establishes a presumptive preference that the "sentencing judge" will decide the motion. This means that the default position will be that the same judge who imposed sentence on the case will be the judge who will decide whether to seal the conviction. This preference makes perfect sense. In theory, the judge will already be familiar, or perhaps able to be reminded of special circumstances and considerations about the case that would be worth considering in a motion to seal the conviction. Especially, for example, in cases where an issue is the reason that settlement was reached to a lesser charge (one of the specific considerations outlined in the law), having the judge who was involved in the negotiations makes sense.
In practice, however, the reality, especially for the more high volume misdemeanor cases, is that judges will likely have few, if any, specific memories about cases that are going to be by definition ten or more years old. Misdemeanor cases involving negotiated plea bargains, for example, typically involve judges very little except for the few minutes where the deal is suggested to the judge and the judge either agrees or disagrees. Therefore, at least with respect to misdemeanor convictions resulting from plea bargains, the likelihood of the judge who happened to be sitting when the deal was struck actually having an independent recollection of the case will be next to zero.
Trial cases, tend to be more memorable for the lawyers and judges alike, but the criminal justice system churns out plea bargains at a rate that far exceeds the number of trials. In most cases, then, the judges who are presumptively on the hook to decide motions to seal pursuant to Section 160.59 will need to rely on the motion to seal itself to provide the background. This highlights the need for motions under 160.59 to be both persuasive AND reliably accurate as to the facts. In a context where their own memories may be incomplete, and they will be needing to rely to some degree on the representations and proof of counsel, I would imagine that Judges would be most displeased to feel as if they were being misled. Defense counsel filing these motions will need to tread carefully before crossing the line between zealous advocacy and misrepresentation of reality.
But since motions to seal under Section 160.59 can't be made until ten years have elapsed, is it really even likely that the Judge who sentenced you will still be in the same Court available to hear such a motion? Judges move on, get promoted, and retire just like everyone else. The sealing law accounts for this. When the "preferred" Judge is no longer sitting in a court in the jurisdiction in which the conviction was obtained, "ANY OTHER JUDGE WHO IS SITTING IN THE CRIMINAL COURT WHERE THE JUDGMENT OF CONVICTION WAS ENTERED" may hear the motion.
As of the writing of this article, the law has yet to take effect, so the specific procedures of individual courts in New York are still yet to be determined, but I can hazard a good guess as to how this will work.
For administrative convenience, I suspect that each county will designate a "misdemeanor judge" and a "felony judge" to hear and decide all of the motions under Section 160.59 where the preferred judge is unavailable. Especially for the first year or so, when all those with convictions prior to 2007 are potentially eligible, including those people whose convictions are 20 and 30 years old, I suspect there will be a glut of motions to seal quite old convictions where the preferred judges will be unavailable.
Now, although the law specifically indicates that the judge to hear a motion to seal a conviction under Section 160.59 is the sentencing judge, it would not surprise me if various Court administrations turned legal cartwheels to find a way to allow one designated judge to hear every one of these motions. I believe this for three reasons.
First, from a simple administrative perspective, tracking down different judges who often rotate from courtroom to courtroom (in misdemeanor court), and adding cases at random to their calendars is going to be a logistical challenge to the already busy and sometimes overwhelmed big city courts like the courts in New York City.
Second, Court administrations will likely prefer to avoid the almost inevitable disparity in approach and outcome in these matters if the motions are left to the widely varying dispositions of the variety of judges. I can imagine Court administrations preferring to establish a consistent approach to motions to seal convictions under Section 160.59 that could only happen if the decisions were made by one person with a consistent vision.
Third, the courts, at least in New York City, have already done something similar with Violations of Probation. In theory, when there is a violation of probation, the judge who sentenced the person to probation is the presumptive judge who will decide the violation of probation matter. This makes sense for the same reason that it makes sense for the judge who sentenced the defendant to decide whether to seal the conviction under Section 160.59.
And yet, in New York City criminal courts, such as Queens County, for example, the Court administration has developed a procedure where virtually all violations of probation are heard in a Violation of Probation Courtroom and they are all dealt with by one Judge. In the case of Queens County, this one Judge deals with misdemeanor and felony violations of probations as well.
Therefore, I can imagine Court Administrations seeking to develop a similar program for motions to seal convictions under Section 160.59. Whether they will be able to do this in a way that is consistent with the clear language of the statute is another question. The language of the statute appears only to offer a binary choice. The sentencing judge is defined as either the judge who pronounced sentence OR IF THAT JUDGE IS NO LONGER SITTING IN THE COURT any other judge of the criminal court where the conviction occurred.
The language of the statute doesn't provide for other reasons to give the cases to someone other than the sentencing judge. Further, the fact that the legislature went out of its way to specifically address what happens if the sentencing judge is no longer sitting in the Court, means that the argument can be made that the Legislature was thinking of such things and that they fully accounted for all possible exceptions as they saw fit.
The worry associated with one Judge to handle all these motions is of course that one judge could be a judge who would be extremely hostile to sealing convictions and create a situation where sealing becomes a rare exception to an otherwise long string of denials. Of course the opposite could also be true in that one person in charge of them all could also turn out to be highly disposed toward granting sealing given an adequate justification.
In any event, since at least in the beginning when presumably there will be a glut of motions requesting sealing from long ago and far away, I would imagine there will need to be a "sealing judge" who hears all the motions from the distant past and judges who have moved on. Whether the various Court administrations will attempt to pass all of these sealing motions to the "Sealing Judge", in apparent violation of the law, remains to be seen.
In a brilliant and amusing bit of legislative foresight, Criminal Procedure Law 160.59 specifically prohibits plea bargain agreements where a defendant must give up his right to seek sealing under 160.59.
Currently, many District Attorney Offices in New York, including the Manhattan DA's office and the Nassau County DA's Office routinely make "waiver of sealing" of non-criminal offenses (which would happen by operation of law otherwise) a part of many plea bargain arrangements. Making something a bargaining chip that the law generally requires to happen automatically for reasons the legislature clearly carefully considered, has always struck me as an ethically challenged policy. Nevertheless, it is common practice and becoming ever more common.
It would therefore likely only be a matter of time before DA's offices would start making agreements contingent on defendants waiving their rights to get convictions sealed under this new statute. These extractions of agreements to waivers of sealing are essentially "contracts of adhesion" where the person agreeing to it has no real bargaining power to do anything other than to accept it, like the waivers of liability printed on the back of ski lift tickets at ski resorts. Well now the legislature has confronted this questionable practice in what I see as a clear rebuke to the policy of extracting waivers of sealing during the plea bargaining process.
Here is the exact language of the statute (Section 160.59(11)):
No defendant shall be required or permitted to waive eligibility for sealing pursuant to this section as part of a plea of guilty, sentence or any agreement related to a conviction for an eligible offense and any such waiver shall be deemed void and wholly enforceable. [I suspect that the word "enforceable" is a typo and is intended to be "unenforceable". It wold make no sense for an agreement to be both void and enforceable.]
The law first specifically states that no agreement to waive the right to make a motion under 160.59 to seal a criminal conviction in connection with a plea bargain, sentence, or other agreement will be legal. But in a fascinating legislative "smack down" to prosecutors and courts who might be tempted to try to develop a workaround even to this prohibition, Section 160.59 goes further to specifically state that if such an agreement IS MADE NEVERTHELESS, the agreement will be void and have no effect on the defendant's rights under 160.59.
Personally, I find this extra language delicious. Think about what it means. It means that the Legislature had reason to believe that even though it was making waivers of rights to seal under Section 160.59 illegal, that prosecutors and courts would probably just do it anyway. I mean, if the second part of the sentence were erased, the law would be crystal clear about what the Legislature intended. Just imagine that our Legislature has so little faith in prosecutors and judges to follow such a clear statement of the law that they felt compelled to account for what happens if the clear, specific, simple law is disobeyed.
I get a great many calls from people who are confused about the real meaning and effect of a certificate of relief from civil disabilities and sealing or expungement of criminal records. Let me just clear this up right away.
A certificate of relief from civil disabilities is NOT a sealing or expungement of anything. If you get a certificate of relief from civil disabilities, you still have a criminal record. The benefit of a certificate of relief from civil disabilities is simply that some of the automatic disqualifications and difficulties associated with that conviction are eliminated.
For example, many licenses issued by the government for various business related activities, such as a liquor license that is required to operate a bar, may automatically exclude people who have criminal convictions. You shouldn't even bother to apply because of the automatic disqualification. If you get a certificate of relief from civil disabilities, however, that automatic disqualification is wiped away, and you would then be eligible. This does not mean, however, that the people deciding your application are not allowed to see the conviction or even decide against you because of it. It just means that if they want to give you the license in spite of the conviction, the law will now allow it.
A sealed conviction, however, will not be generally available to the public or even to many Government agencies, although law enforcement and some regulated agencies will still have access.
In those particular circumstances where a certificate of relief from civil disabilities helps, it is of course great. For most people under most circumstances the certificate is more like chicken soup as a remedy for a common cold. It can't hurt, but in truth probably doesn't do too much for you either.
You apply for the certificate through the Department of Probation. There is a form. When you file the form, they will fingerprint you and interview you. You will get a court date to appear for the judge's decision. On that date, the judge will be given your application and a report from probation that will outline their recommendation. The judge will either decide on the spot or perhaps require more information from you or Probation and adjourn the case to a new date for decision.
Given that less is at stake with certificates of relief than with actual sealing, it tends to be a less formal process.