Which Judge will Decide a Motion to Seal a Conviction Under Section 160.59?

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.