Violent felony offenses that are NOT eligible for sealing under section 160.59

By: Don A. Murray, Esq., founding partner, Shalley and Murray

If you can find the offense for which you were convicted on the list below, then that conviction will NOT be eligible for sealing under New York Criminal Procedure Law Section 160.59.  I have made more commonly charged offenses bold so they are easier to spot among some of the more rarely charged offenses.  (Please be aware that this list is subject to modification by the Legislature and is current as of May 11, 2017.  It is possible that the law could change and the change may not be immediately reflected here.  As always, check with your lawyer for the most current information.)

As a general rule, "violent" felonies are going to be sort of obvious.  Felony assault, or example, is going to be considered violent.  (But misdemeanor assault is not.)  You should be aware that some offenses are considered "violent" even though there need be no violence at all involved in the commission of the offense.  

A classic example of this is Burglary in the Second Degree, a C Violent Felony in New York.  The legislature has classified Burglary in the Second Degree as violent as a means to make sure the sentencing rules that apply are particularly high.  Burglary in the Second Degree is burglary of a dwelling (home) regardless of whether there is injury and regardless of whether the resident is at home.  Perhaps an argument could be made that Judges should consider "nonviolent" violent offenses for sealing, but that will be a tough argument to make given that the Legislature specifically used the Penal Law definition of "violent felony offense".

Class B Violent Felonies

  • an attempt to commit the class A-1 felonies of murder in the second degree as defined in section 125.25, kidnapping in the first degree as defined in section 135.25, and arson in the first degree as defined in section 150.20;
  • Manslaughter in the first degree as defined in section 125.20
  • aggravated manslaughter in the first degree as defined in section 125.22,
  • rape in the first degree as defined in section 130.35
  • criminal sexual act in the first degree as defined in section130.50
  • aggravated sexual abuse in the first degree as defined in section130.70
  • course of sexual conduct against a child in the first degree as defined in section 130.75;
  • assault in the first degree as defined in section 120.10
  • kidnapping in the second degree as defined in section 135.20
  • burglary in the first degree as defined in section 140.30
  • arson in the second degree as defined in section150.15
  • robbery in the first degree as defined in section 160.15
  • incest in the first degree as defined in section 255.27
  • criminal possession of a weapon in the first degree as defined in
  •   section 265.04, criminal use of a firearm in the first degree as defined in section 265.09
  • criminal sale of a firearm in the first degree as defined in section 265.13
  • aggravated assault upon a police officer or a peace officer as defined in section 120.11
  • gang assault in the first degree as defined in section 120.07
  • intimidating a victim or witness in the first degree as defined in section 215.17
  • hindering prosecution of terrorism in the first degree as defined in section 490.35
  • criminal possession of a chemical weapon or biological weapon in the second degree as defined in section 490.40
  • criminal use of a chemical weapon or biological weapon in the third degree as defined in section 490.47.

    Class C violent felonies

  • an attempt to commit any of the class B felonies listed above
  • aggravated criminally negligent homicide as defined in section 125.11
  • aggravated manslaughter in the second degree as defined in section 125.21
  • aggravated sexual abuse in the second degree as defined in section130.67
  • assault on a peace officer, police officer, fireman or emergency medical services professional as defined in section120.08
  • assault on a judge as defined in section 120.09, gang assault in the second degree as defined in section 120.06
  • strangulation in the first degree as defined in section 121.13
  • burglary in the second degree as defined in section 140.25
  • robbery in the second degree  as defined in section160.10
  • criminal possession of a weapon in the second degree as defined in section 265.03
  • criminal use of a firearm in the second degree as defined in section 265.08
  • criminal sale of a firearm in the second degree as defined in section 265.12
  • criminal sale of a firearm with the aid of a minor as defined in section 265.14
  • aggravated criminal possession of a weapon as defined in section 265.19
  • soliciting or providing support for an act of terrorism in the first degree as defined in section 490.15
  • hindering prosecution of terrorism in the second degree as defined in section 490.30
  • criminal possession of a chemical weapon or biological weapon in the third degree as defined in section 490.37

Class D Violent Felonies

  • an attempt to commit class C violent felonies listed above

  • reckless assault of a child as defined in section 120.02
  • assault in the second degree as defined in section 120.05
  • menacing a police officer or peace officer as defined in section 120.18
  • stalking in the first degree, as defined in subdivision one of section 120.60
  • strangulation in the second degree as defined in section 121.12
  • rape in the second degree as defined in section130.30
  • criminal sexual act in the second degree as defined in section 130.45
  • sexual abuse in the first degree as defined in section 130.65
  • course of sexual conduct against a child in the second degree as defined in section130.80
  • aggravated sexual abuse in the third degree as defined in section130.66
  • facilitating a sex offense with a controlled substance as defined in section 130.90
  • criminal possession of a weapon in the third degree as defined in subdivision five, six,  seven,  eight, nine or ten of section 265.02  (Pay careful attention to the exact subsection here, because only the listed subsections are considered violent.)
  • criminal sale of a firearm in the third degree as defined in section 265.11
  • intimidating a victim or witness in the second degree as defined in section 215.16
  • soliciting or providing support for an act of terrorism in the second degree as defined in section 490.10
  • making a terroristic threat as defined in section 490.20
  • falsely reporting an incident in the first degree as defined in section 240.60
  • placing a false bomb or hazardous substance in the first degree as defined in section 240.62
  • placing a false bomb or hazardous substance in a sports stadium or arena, mass transportation facility or enclosed shopping mall as defined in section240.63
  • aggravated unpermitted use of indoor pyrotechnics in the first degree as defined in section 405.18.

ClassE Violent Felonies

  • an attempt to commit any of the felonies of criminal possession of a weapon in the third degree as defined in subdivision five, six, seven or eight of section 265.02 as a lesser included offense of that section as defined in section 220.20of the criminal procedure law
  • persistent sexual abuse as defined in section 130.53
  • aggravated sexual abuse in the fourth degree as defined in section 130.65-a
  • falsely reporting an incident in the second degree as defined in section 240.55
  • placing a false bomb or hazardous substance in the second degree as defined in section 240.61.