New York Conviction Sealing Law 160.59 Prohibits Agreements to Waive Right to Seek Sealing

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.  

Absolutely astounding.