How to Get Your Record Sealed or Expunged in New York

How to Get Your Record Sealed or Expunged in New York

Jane Meggitt
 | 
Some states allow expungement of criminal records. New York is not one of them, with the exception of minor cannabis crimes. Expungement involves erasing or completely removing a criminal conviction. In essence, after expungement the court treats the conviction as if it did not happen.

While expungement is not an option, it is possible under certain circumstances to have a criminal record sealed in New York. When a record is sealed, it continues to exist. However, it is no longer available to the public. Many related items are either destroyed or returned to the individual. These items include:
  •        Booking photos
  •        DNA samples
  •        Fingerprint and palm print cards
Marijuana Expungement

Marijuana expungement in New York is now automatic depending on the conviction date. A person with a misdemeanor conviction of smoking or holding marijuana in public or possessing more than 25 grams prior to August 20, 2019 was charged under the former law. After that date, the charge became a violation, not a misdemeanor. The conviction under the old law is now automatically expunged.

Other marijuana convictions are not automatically expunged. However, it is possible to request the sealing of the record.

Sealed Record Eligibility

For some violations, you may not have to do anything to have the record sealed. That is the case with the following:
  •  Good results –This includes acquittals, dismissals, decline of prosecution, order setting aside a judgment and order vacating a judgment.
  •  Crimes committed by children or youthful offenders
  •  Some traffic violations or low-level infractions such as a disorderly persons offense are partly sealed.
Keep in mind that New York’s sealing laws do not apply to federal convictions or those in other states.

Sealing Felonies and Misdemeanors

A person may ask to have the court seal their felony and misdemeanor records if they have not had more than two misdemeanors or one felony and one misdemeanor conviction. The person must prove crime-free for a minimum of ten years.

Those convicted for drug-related crimes may request the court to seal their records if they have completed a court-recognized substance abuse treatment program and have finished any related sentence. The person cannot have any other pending charges against them.

Sealing Ineligibility

Certain convictions are not eligible for sealing. These include:
  •       Sex offenses
  •       Crimes defined as “violent” by statute
  •        Class A felonies – including murder, arson, kidnapping, terrorism and more.
Application for Sealing

The application to the court to have records sealed must include:
  •        Certificate of disposition for the conviction
  •        Sworn statement of reasons why the conviction deserves sealing
  •        Other supporting documentation  
The entire application is submitted to the sentencing judge. If that judge is no longer sitting in a New York court, the application is sent to any other judge sitting in the court where the person was convicted.

The application is also served to the District Attorney in the county obtaining the conviction. Within 45 days, the DA must notify the court whether there is an objection to the sealing of the records.  

A person trying to seal more than one criminal conviction must first present the application to the court in which they were convicted of the most serious offense.

Sealing Decision

If the applicant does not meet all of the required criteria, the judge will deny the application. If the DA’s office objects but the judge does not deny the application, a hearing is then scheduled. Both sides must present evidence supporting their positions.

If the DA’s office does not object the judge may conduct a hearing at their discretion.

The judge takes into consideration the following factors before making a decision:
  •      Seriousness of the crime
  •       Amount of time since the last conviction
  •       Statements by any victims
  •       Impact of sealing the record on law and public safety
  •       Impact of sealing the record on the person’s ability to reintegrate    successfully into society.

The individual should provide examples of how they have been rehabilitated. This may include attending school, working, participating in treatment programs and volunteer activities.

Who Can View Sealed Records

If the judge grants the sealing of records, only certain parties may view them. These include:
  •       Someone you designate
  •       Employer if the job involves carrying a firearm
  •       Parole officer if arrested while on parole or probation
  •       If arrested for another crime, the prosecutor or law enforcement after receiving a signed court order.
Obtain Legal Counsel

While it is possible to apply to have criminal records sealed on your own, the process is complicated and it is wise to seek legal counsel. Sealing a record gives you the opportunity to put the past behind you and enter a new phase of life. Make sure to have help along the way.


This article is intended to convey generally useful information only and does not constitute legal advice. Any opinions expressed are solely those of the author, not LawChamps.

 
Jane Meggitt

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