Sealing and Expunging Criminal Records in New York

Having a criminal record in New York may sometimes hinder a person's chances of gaining employment, pursuing higher education, or aspiring for political positions. Sealing or expungement of criminal records may offer a solution. Although New York state law does not permit the expungement of criminal records (except in certain instances), it does allow for sealing. According to New York State law, CPL 160.59, persons with no more than two misdemeanors or one felony and one misdemeanor conviction, and who have not committed any crime in the last ten years, may be eligible to have their records sealed.

The Difference Between Sealing and Expunging Criminal Records

When a criminal record is sealed, such documents are typically inaccessible to the public. Sealing a record ensures that members of the public are unable to view the criminal record without a court order. Expunction, on the other hand, involves the complete removal or destruction of a criminal record from public view. In New York, criminal records can only be sealed, not expunged, except in marijuana cases, where such records are automatically deleted. Approval for the sealing of certain convictions is possible under specific conditions, as provided by Section 160.59 of the Laws of New York.

Petitioners typically have to fill out a request form to aid the verification process. Once it is confirmed that the record is sealed, interested individuals must schedule an appointment to have their fingerprints taken. Other prerequisites include presenting a valid form of identification and paying the applicable fee of $13.75, which can be made by check or money order. After the New York Division of Criminal Justice Services accepts the record request, processing the sealed records takes 7 to 10 business days.

How to Seal a Criminal Record in New York

In New York, certain offenses are granted automatic sealing after a while. State laws (CPL 160.59) on criminal convictions may also allow individuals to seal their criminal records from the public if they are eligible. Generally, classes of records that can be sealed in New York are drug crimes, theft, public intoxication, arrest records, and noncriminal records. To qualify for the sealing process, interested persons must:

• Not be a sex offender.
• Have no more than two offenses, of which only one can be a felony
• Not have committed any crime for a minimum of 10 years since last conviction

Procedures Involved in Sealing a Criminal Record in New York:

• Complete the sealing application form and attach any required supporting documentation. These include a Certificate of Disposition for the convictions, sworn statements about the motive behind record sealing, and evidence of rehabilitation. The appropriate fee of $10 must also be paid to the court involved.
• Submit the completed application to the court that presided over the criminal case. Requests must be addressed to the judge who treated the case or the judge of the court involved, where the former presiding judge had been transferred.
• Make a copy of the application and the attached documents, and submit them to the office of the County District Attorney (DA). If the DA challenges the application, the applicant must notify the court within 45 days. The judge may then require a hearing.
• During the hearing, the applicant has to provide more convincing evidence with the aid of an attorney on the reasons for sealing the records.
• The ruling by the judge may come in the form of rejection or approval. If the sealing application is approved, the applicant will receive a court-signed seal order. Request for CPL 160.59 Seal Verification Form can also be used to confirm if a person's criminal history record has been updated.

Can a Felony Be Expunged in New York?

Under certain conditions, as outlined in CPL §160.59, some felony offenses may be sealed, while others may not. Individuals with no more than one felony and one misdemeanor may petition the court to have their conviction records sealed. However, sex offences, violent felonies, and serious felonies, such as drug trafficking, cannot be sealed in New York.

Under CPL §160.58, certain felony drug offences may be sealed if the individual completes a court-approved substance abuse treatment program. For all expungement petitions, petitioners must state the reason for seeking expungement and demonstrate rehabilitation with evidence, such as documented community service, completion of court-approved rehabilitation programs, or volunteer work with a charity. The judge may consider the reasons for petitioning for expungement and apply discretion in deciding whether the sealing is in the best interest of justice.

Under CPL §160.59, individuals who have been convicted of a felony may apply to have their records sealed if:

• They are charged with a maximum of two convictions, out of which one is a felony
• The individual has not been convicted of any other felony in the last ten years
• The individual has completed parole, probation, or post-release supervision.
• The convictions are not for a violent felony or a sex crime
• The individual does not have any pending criminal charges

Nonetheless, the sealing of felonies is conditional. If the individual subsequently gets arrested for a felony or misdemeanor, the records will be unsealed.

What Crimes Can Be Expunged in New York

In New York, certain marijuana cases may be expunged, while other criminal activities are allowed to be sealed from public access. Marijuana crimes eligible for expungement include:

• Criminal possession of marijuana in the 5th degree, according to PL 221.10
• Unlawful possession of marijuana in the 1st degree or unlawful possession of marijuana in the 2nd degree, under PL 221.05

How to Expunge Criminal Records in New York

To expunge a criminal record means that the arrest, court case & trial, and the verdict on the charges are erased. Therefore, the crime or charge will not be found on any criminal history record search, can't be accessed by law enforcement agencies, and may not be listed when asked about past convictions or arrests. In New York, the expungement of criminal records is generally permitted for some marijuana cases, and the files for these marijuana crimes are typically expunged automatically. Other criminal records are sealed; that is, the documents of the charge or crime still exist, but personal information like fingerprint cards, mugshots, and DNA samples collected are destroyed or returned to the owner.

Do Sealed Records Show up In New York Background Checks?

Yes, sealed records show up in New York background checks. Although a sealed criminal record in New York is withdrawn from public access, it may still appear in background checks, as permitted by CPL 160.59, in certain instances, such as a job application that requires the individual to carry a firearm. Sealed records can also be seen in background checks by law enforcement agencies when a request is submitted. However, if records that are supposed to be sealed come up in a regular criminal records search, the individual may go to the court where the case was heard and request a Certificate of Disposition by completing an application. If the Certificate of Disposition indicates that the case is sealed, send the original certificate, along with the completed form, to the court where the case was heard, requesting that the mistake be corrected.

How Can I Get My Record Expunged for Free in New York?

Sealing a court record in New York comes with some costs. For individuals who have limited finances, filing fees may be waived under the Civil Practice Law and Rules (CPLR). To initiate the sealing process, the individual must request a certificate of disposition from the court where the conviction took place. This may cost about $5 to $10. Also, they must complete the application for sealing. They would also need to notarise the document, which involves paying a small fee.

Some individuals may require the services of an attorney. This may cost anything from $900, depending on the complexity of the case. A simple sealing case is at the lower end with respect to charges. Multiple convictions, older cases, and more serious cases require research, time in court, and interaction with the district attorney, which increases the cost implications.

Moreover, petitioners would require a certified copy of the conviction. They may also need fingerprinting and a background check to locate the record they seek to seal. However, indigent individuals in New York may be able to access lawyers who offer pro bono legal services through the New York Bar Association and some non-profit organizations in New York.

A petition to seal a conviction record may include details such as:

• The name of the applicant
• Date of birth
• Social Security Number
• Specific charges for which they seek sealing
• Results of the charges in court

Who Can See Sealed Criminal Records in New York

In New York, certain parties may still be able to access sealed criminal records if the necessary conditions are met. The essential information includes:

• The defendant has a valid government-issued identification
• An individual authorized by the defendant with a submitted request and proper identification
• The State Parole Officer on duty when the defendant was arrested
• An employer, when the job requires the defendant to carry a gun
• A prosecutor, when the defendant makes a motion for an adjournment in contemplation of dismissal on a marijuana charge
• Law enforcement agencies with approved requests

Records that are considered public may be accessible from some third-party websites. Operating independently of any federal, state, or local agency, such websites may simplify the search process as they are not limited by geographic location. Additionally, third-party sites often feature search engines that allow users to filter specific or multiple records. To use third-party or government websites, interested parties may need to provide:

• The name of the person involved in the record, unless said person is a juvenile
• The location or assumed location of the record or person involved. This includes information such as the city, county, or state that the person resides in or was accused in

However, third-party sites are independent of government sources and are not sponsored by these government agencies. Because of this, record availability cannot be guaranteed.