In New York, felony expungement is not available. The process of making criminal records unavailable for public view is usually referred to as “sealing” a criminal conviction in New York state. An individual who has been convicted of no more than 2 misdemeanors or 1 felony and 1 misdemeanor may be eligible to have the records of those convictions sealed. But it depends on the nature of the offenses and the individual who wants them sealed.
A defendant must apply to the court to have their criminal record sealed. If the court grants the application, then in the future only federal, state, and local law enforcement and a few other qualified government agencies would be able to view the record.
Of course, the records of certain especially serious felonies, e.g., sex offenses, violent felonies, and other serious felonies, cannot be sealed. A local New York lawyer would be able to provide more information about sealing a conviction in New York.
If a defendant is not a citizen of the U.S., the U.S. Citizenship and Immigration Service (USCIS) would still be able to view sealed records of criminal convictions.
What Factors Influence Felony Expungement?
An individual with a criminal record is eligible to have the record of their crimes sealed only if they meet the following requirements:
- The individual has not committed any crimes for at least 10 years after they were convicted of the crimes reflected in the record they want to seal.
- The individual has only 1 or at most 2 convictions on their criminal record. If they have 2 convictions, only one can be a felony. The other would have to be a misdemeanor.
The 10-year period starts to run on the date on which the individual is convicted or released from prison, whichever comes later.
To be eligible, the individual must not have had any additional criminal convictions. Also, they cannot have any pending criminal charges, whether felony or misdemeanor. Again, New York law only authorizes courts to seal the records of no more than 2 convictions, only one of which may be a felony.
If an individual has more than 2 convictions, they may still be eligible if the crimes of which they were convicted were related to the same 1 or 2 incidents. For example, if an individual was charged and convicted of multiple crimes as a result of 1 incident, a court may decide that the multiple convictions can be treated as 1 conviction.
Marijuana convictions that have been expunged do not count toward the total number of convictions. Rather, they are treated as if they do not exist.
Which Felonies Can Be Expunged?
The convictions that are eligible for sealing are defined in New York law. The definitions are technical. Generally, any felony conviction as defined in the laws of New York is eligible other than conviction of a sex offense, a violent offense, a class A felony offense, and an offense for which registration as a sex offender is part of the punishment.
In addition, the crime of an attempt to commit a felony that is not eligible is itself not eligible for sealing. Other offenses, as specified in New York law, also may not be eligible for sealing.
An individual who wants to seal the record of their felony convictions should consult with an attorney for information about whether they are eligible and whether their convictions are eligible for sealing.
Again, as noted above, if more than 1 felony offense was perpetrated as part of the same incident, the felonies may all be considered as 1 felony offense and would be eligible for sealing.
What Is the Process of Expunging a Felony Conviction?
An individual must apply to a court for sealing of a felony conviction using the form known as “Request a Criminal Certificate of Disposition.” They want to do the following:
- Submit a separate form for each conviction which they want sealed
- Complete the required form and submit it to the court
- Pay the fee of $5 to submit the application to courts outside of New York City, and $10 for courts located within New York City.
The individual then obtains a “Certificate of Disposition” from the court and should complete a sealing application, or “Notice of Motion and Affidavit in Support.” The individual wants to have this form notarized.
When the individual submits this form to the court, they should include any evidence they have of any of the following:
- Proof of rehabilitation,
- Proof that they are employed
- Proof that they have done community service of some type
- Proof that they have done volunteer or charity work
- Transcripts of any educational courses they have completed
- Letters of recommendation from current or past employers, teachers, and/or professors, or charitable organizations
- Certificates of the successful completion of a substance rehabilitation program.
The district attorney must be notified of an individual’s application. The district attorney should receive a copy of every document that is submitted to the court as part of an application. They can be delivered to the district attorney by mail or hand delivery.
If an individual is requesting that the records of more than 1 conviction be sealed and they are in 2 different counties, the district attorney in each county should receive a copy.
Once the papers have been delivered to the district attorney, the individual who delivered them has to complete an affidavit of service and have it notarized. This proves the delivery of the papers to the district attorney.
All of the originals of these documents should be filed with the court. If an individual is dealing with more than 1 conviction and they are of the same class, the originals should be filed in the court in which the most recent conviction occurred.
If a Felony Is Expunged, Does That Mean It Is Totally Erased From My Record?
An individual’s criminal record of conviction of a crime still exists after it has been sealed, but it is not available to the public for viewing. However, all of the related fingerprints, booking photographs, and DNA samples that law enforcement may have collected would be returned to the individual whose record has been sealed. Or they may be destroyed.
Digital fingerprints are not destroyed if an individual has fingerprints on file from a different case that has not been sealed.
Which Felonies Are Not Eligible for Expungement?
As noted above, the following felonies are not eligible for sealing:
- A sex offense
- An offense that involved violence
- A class A felony offense
- An offense for which registration as a sex offender is a consequence
- The crime of an attempt to commit a felony that is not eligible is itself not eligible for sealing.
New York law designates other felonies as well that may not be sealed. An individual who seeks sealing should consult a local New York lawyer.
Do I Need an Attorney for Help With Felony Expungement?
If you have a criminal record that includes felonies, you have a number of options for avoiding the negative impact it can have on your life. LegalMatch.com can quickly connect you to a New York expungement lawyer who can review your record and tell you about the options you have and how to get relief from the negative effects a criminal record can bring.
