What Must A Motion to Seal a Conviction Under 160.59 Contain?

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.

Conclusion

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.