When a person has a conviction on their criminal record, it may cause numerous issues for them in connection with the following:
- Applying for a job;
- Trying to obtain professional licensing;
- Exercising their right to vote.
Even when a criminal case does not result in a formal conviction, the record of an arrest and the criminal prosecution may, in some cases, remain and cause similar issues.
In some situations, a conviction and a record of arrest may be sealed so that the information is off-limits to anyone but law enforcement personnel. In other cases, in some states, a person’s record can be subjected to a process called “expungement,” where their criminal file is removed from public records.
In New York, expungement is available only on a very limited basis for some minor marijuana offenses. New York law allows for sealing for more types of cases. But New York expungement laws have a very limited scope.
In 2023, New York adopted the Clean Slate Act. This law provides for the automatic sealing of records of some crimes, although not many crimes that are Class A felonies under New York law. For example, convictions for murder or terrorism would not be automatically sealed. In addition, sex crimes and offenses that involve sexual violence would not be sealed automatically.
Generally, the law would operate to automatically seal eligible records after 3 years for a misdemeanor offense and 8 years for a felony. The waiting period would run from the time at which a person is sentenced, or if they are incarcerated, from the time of their release.
If the waiting period has concluded, but the person is still under community supervision, the crimes are sealed when community supervision comes to an end. If a person with convictions commits a crime during the waiting period, the waiting period starts over.
The law allows convictions to be sealed only but not expunged. Law enforcement officers, prosecutors, and judges would still be able to access the records. If people commit another offense, their criminal history can be referenced in a new prosecution and sentencing.
In addition, people who conduct background checks for jobs that require fingerprinting can still access the criminal records. Applicants for jobs that involve working in law enforcement or with children, people with disabilities, and older adults usually must be fingerprinted.
Ride-share companies also have access to the criminal records so they can vet contractors. The state Education Department still has access, as does the Department of Motor Vehicles and people who process applications for pistol permits. A local New York lawyer should be able to explain all of the nuances of the new law.
What Is the Process for Expungement in New York?
As noted above, except for some minor marijuana offenses, New York law does not allow for the expungement of criminal records. New York law allows for the sealing of some kinds of cases.
In New York, sealed records remain in existence. However, all related fingerprint and palmprint cards, booking photos, and DNA samples related to the case are returned to the perpetrator or destroyed. If a person has fingerprints on file in digital form from a different unsealed case, these are not returned or destroyed.
In New York, a person who wants to seal a criminal record must prepare an application to seal their criminal record supported by the document showing their conviction. The applicant should also provide a sworn statement, which includes the reasons why the record should be sealed.
The supporting documentation is an essential part of the application, and a person risks their application being summarily dismissed if they do not include that information. This application should be submitted to the court where the person was sentenced.
This application must be served to the District Attorney, who is then required to notify the court of any objection to the person’s application for expungement. If the District Attorney does formally object to the application, a hearing will be held to allow both sides to make their arguments.
Even if the District Attorney does not object, the court still may conduct a hearing prior to ruling on the application. When determining whether to grant an application, the court considers several factors, including:
- The passage of time since their last conviction;
- The seriousness of the crime and the circumstances under which the person committed the offense;
- Other offenses of which the person has been convicted;
- Information about the person’s character and about how they have been living their life since the conviction;
- Any statements by the victim about the offense the person seeks to have sealed;
- Whether sealing the record will impact the person’s successful rehabilitation and reintegration into society; and
- The impact on public safety and on the public’s respect for and confidence in the law.
How Is Record Sealing Different From Expungement?
The main difference between record sealing and record expungement is that a criminal record still exists if the record is sealed. The files and records are still present in systems that maintain criminal records. However, they can only be accessed by certain people in very limited circumstances.
It is standard for a person’s juvenile criminal files to be sealed once the person reaches the age of 18, although they may sometimes still be accessed via a court order. Expungement, in contrast, results in the actual deletion, or erasing, of arrest files and criminal records, so after expungement, it is as though they never occurred.
There are certain charges which may be more difficult to seal than others. For example, a misdemeanor charge is typically more easily sealed than a felony charge. The laws governing criminal record sealing and expungement may vary widely from state to state. Eligibility for these procedures often depends on the type of crime involved.
What About Expungement When the Action Ends in the Defendant’s Favor?
There are numerous reasons why a defendant may want to erase the record of their criminal conviction. The process, as noted above, is referred to as expungement.
As noted above, in New York, however, expungement is available in only very few cases, and an expunged record in New York is a record that has been sealed from the public. It is sealed so that members of the public can no longer view it. It is not destroyed entirely.
This means that the record of the conviction still exists, but the public cannot access it. After a record is sealed, it may be accessed only by specific individuals and in very limited circumstances.
It is important to note that a person may seal the records of only 2 eligible criminal convictions, which means all of the convictions on a person’s record may not be subject to sealing. In addition, only one of the offenses can be a felony. However, if a person was convicted of several crimes for only one criminal act, all of the crimes may be treated as a single conviction for the purpose of sealing.
Why Seal a Case?
People can be convicted for a variety of criminal offenses, from misdemeanors to felonies. If an individual has a criminal record, it may cause them issues when they are seeking certain privileges, including:
- Getting a job;
- Finding housing;
- Being allowed to rent in public housing;
- Getting a loan.
A private landlord may run a criminal background check, which may reveal a criminal conviction. A landlord may determine not to rent an apartment to a person because they have a record of a criminal conviction.
What Types of Cases Can Be Sealed in New York?
If a case ends in a defendant’s favor, i.e., a defendant is found not guilty or is not prosecuted, the record of the case may be sealed, and the person whose record it is may not have to do anything. A case has been ended in favor of a defendant if:
- The defendant was acquitted;
- The case was dismissed;
- The conviction was vacated;
- The prosecutor declined to prosecute.
The criminal records of child and youthful offenders are automatically sealed. In addition, certain traffic violations and infractions may be particularly sealed automatically.
In general, all other circumstances require that a person formally apply for their criminal convictions to be sealed.
What Are the Eligibility Requirements and Restrictions for Sealing?
The records of a person’s conviction may be sealed for a defendant whose case ended in their favor. Due to the fact that sealing and expungement are not constitutional rights, there are procedures in place that identify the specific types of cases that may be expunged.
Until recent years, expungement was only permitted in very limited circumstances. An individual may now seek to have certain misdemeanors and felonies expunged if they have no more than 2 misdemeanors or 1 felony and 1 misdemeanor conviction.
In general, types of criminal convictions which may not be expunged include records of the following offenses:
- Most sex offenses;
- Violent crimes;
- Class A felonies;
- Other statutory felonies.
In addition, a person may be required to demonstrate that at least 10 years have passed since their sentencing or release and the application for expungement. A person is not eligible if they have any of the following:
- Current or pending charges;
- Recent convictions;
- Already received the maximum number of record sealings.
- The application would not be successful.
What Types of Materials Can Be Sealed in New York?
Once a person’s records have been sealed, the physical copies of certain documents used in their case will be destroyed, including:
- Mugshots;
- Palm prints;
- Fingerprints;
- Other documents.
Other types of materials, including samples of DNA, may be returned or destroyed. Certain digital records may still be maintained and could be accessed by law enforcement agencies or courts.
Who Can See Records After They Have Been Sealed?
In general, the public cannot view records that have been sealed. The person themselves, however, will continue to have access to their own records, in addition to any other person whose access they authorize.
Examples of when expunged records may still be accessed include:
- A person’s parole officer will have access to records while the person is on probation or parole;
- A prosecutor, if the individual moves for a dismissal on a marijuana charge;
- A law enforcement agency with court approval.
Should I Get an Attorney for Help With Sealing My Criminal Record?
The law regarding sealing and expungement is complicated. You may want to seal or expunge your criminal record. If so, you want to consult a New York expungement attorney who will allow you to present the strongest application possible for why your record should be expunged.
LegalMatch.com can connect you to a lawyer who can explain what process is available to you, given your record. It may be that it is automatically sealed under the Clean Slate Act or that you could get it sealed or expunged. You will have a better understanding of what is possible in your case after you talk to an experienced attorney.
