A Conviction Sealed under Section 160.59 will Still Be Available in Limited Circumstances

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.