Sealing Criminal Records
Criminal Records of Adults
When you are convicted of a crime as an adult, in addition to direct punishment, such as jail or prison time, fines, restitution, forfeiture and probation, there are also indirect consequences of criminal convictions, known as “collateral consequences.” Collateral consequences can affect a broad range of areas in your life, including employment, voting rights, jury service, immigration, housing, public benefits, and school loans. Even misdemeanor convictions may have serious collateral consequences in certain situations.
Unlike other states, New York does not allow you to expunge your criminal records, which would mean the record is completely destroyed and the crime and conviction is completely erased from your record. Instead, New York allows you to seal some criminal records under certain conditions. Until recently, the right to seal criminal records in New York was limited and only allowed in very narrow circumstances involving diversion courts and drug treatment dispositions.
However, New York recently enacted an expansive criminal conviction sealing law. The new law, which became effective on October 7, 2017, provides for general sealing authority for a wide array of adult criminal convictions, if certain conditions are met and various factors are found in your favor. In general, only two criminal convictions may be sealed, and only one of them can be a felony. However, although you can only seal up to two seal eligible criminal convictions, if you were convicted of several crimes for the same criminal act, they may be treated as a single conviction for sealing purposes.
Not all criminal convictions are eligible for sealing. Certain convictions, such as those related to crimes that demonstrate a significant danger to the public, are not eligible for sealing. For instance, the following convictions, among others, are not eligible for sealing:
- Most sex offenses, including those that require sex offender registration;
- Certain offenses defined by statute as “violent crimes,” even if no violence was involved;
- Crimes categorized as class “A” felonies;
- Certain other felonies defined in the statute.
Before a judge will consider sealing your criminal record, you must meet certain conditions. If you cannot meet the following conditions, your application will be summarily denied by the court:
- At least 10 years must have passed between your sentencing or release from prison and your application to the court;
- You have no current or pending criminal charges;
- You have no recent criminal convictions;
- You have not already obtained sealing of the maximum number of convictions allowed; or
- You have been convicted of two or more felonies.
The new law sets forth a detailed process for applying to have your criminal records sealed, which includes the following steps:
- Prepare an application to seal criminal records with required supporting documents, including the certificate of disposition for the conviction and a sworn statement of the reasons the conviction should be sealed, along with any other documentation that supports your argument for sealing.
- Submit the entire application, along with supporting documentations, to the judge who sentenced you, or if that judge is no longer sitting in a court in New York, to any other judge who is sitting in the court where you were convicted. If you are attempting to seal more than one criminal record at the same time, you must present your application to the court in which you were convicted of the more serious crime.
- Serve the application and supporting documentations on the District Attorney of the county where the conviction was obtained. The District Attorney has 45 days to notify the court if her or she objects to your application for sealing;
- The sentencing judge will summarily deny your application if you cannot meet the conditions described above;
- If the sentencing judge does not summarily deny your application, and the District Attorney has filed an objection, the judge will conduct a hearing and may ask both sides for more evidence in support of their respective positions;
- If the District Attorney does not object to your application, no hearing is needed, but the judge may choose to conduct a hearing; and
- The judge will issue a ruling on your application.
In deciding whether to seal your record, the court will consider the following factors:
- The time that has elapsed since your last conviction;
- The circumstances and seriousness of the offense for which you are seeking relief;
- The circumstances and seriousness of any other offenses for which you were convicted;
- Your character, including any measures you have taken toward rehabilitation, such as participating in treatment programs, employment, or schooling, and participating in community service or other volunteer programs;
- Any statements made by the victim of the offense for which you are seeking relief;
- The impact that sealing your record will have upon your rehabilitation and your successful and productive reentry and reintegration into society; and
- The impact of sealing your record on public safety and upon the public’s confidence in and respect for the law.
If the sentencing judge grants your application and your record is sealed, all material related to the case or conviction will be destroyed. That includes fingerprints, palm cards, mug-shots and arrest photos and DNA samples.
Your sealed criminal records cannot be viewed by the public, police or prosecutors. There are only a few limited ways your sealed records may be viewed, and only specific people may have access, as follows:
- By any person you designate;
- An employer if you apply for job that involves carrying a firearm;
- Your parole officer if you are arrested while on probation or parole; and
- Law enforcement or a prosecutor by a court order signed by a judge, but this is a rare occurrence, and mainly occurs if you are arrested for a new crime that in some way is related to the sealed crime.
Criminal Records of Youthful Offenders
Different rules apply if you were arrested while you were a minor at the time of your sentencing. If you were sentenced as a juvenile delinquent, the record is automatically sealed and is only available to certain participants in the criminal justice system like prosecutors and judges. When you turn 16 years old, you may be able to have your juvenile delinquency records sealed to the criminal justice system under certain circumstances. If you are convicted as a Youthful Offender, the record will be automatically sealed to everyone except the school where you are enrolled and the criminal justice system. If you are convicted as Juvenile Offender, your records cannot be sealed, unless the judge grants you Youthful Offender status.
Certificates of Relief from Disabilities and Good Conduct
In addition to sealing criminal records, New York law already allows you to obtain relief from the collateral consequences of criminal convictions in a few other ways. For instance, if you have only one felony conviction and/or any number of misdemeanor convictions, you may apply for a Certificate of Relief from Disabilities. This is not the same as sealing your criminal record and your record will not be sealed as a result. Instead, the Certificate removes some of the barriers that criminal convictions create, such as automatic bars for certain jobs like a real estate broker, security guard or nurse. The purpose is to promote your successful and productive reentry into society.
If you were convicted of a misdemeanor or a felony that did not result in time served in state prison, you apply for your Certificate of Relief at the court where you were convicted. If you served time in state prison for a felony conviction or you were convicted in federal court or in an out-of-state court, you apply to the New York State Department of Corrections and Community Supervision for your Certificate of Relief.
If you have been convicted of two or more separate felonies (and any number of misdemeanor convictions), you will not be eligible for a Certificate of Relief from Disabilities and will have to apply for a Certificate of Good Conduct. You can also apply for a Certificate of Good Conduct if you are seeking a position that is considered a “public office,” such as a firefighter or a notary public. Your application must be submitted to the New York State Department of Corrections and Community Supervision.
Legal Editors: Roland Acevedo and Andrew Stengel, October 2017
Changes may occur in this area of law. The information provided is brought to you as a public service with the help and assistance of volunteer legal editors, and is intended to help you better understand the law in general. It is not intended to be legal advice regarding your particular problem or to substitute for the advice of a lawyer.