Criminal Possession of a Weapon in the Third Degree Conviction Can Be Eligible for Sealing - Check With a Lawyer

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.