This “sealing of certain convictions” (Penal Law 160.59) statute was added by the New York Legislature in 2017 and became effective October 7, 2017. The goal of the relatively new law is to permit a court to “seal” certain criminal convictions when 10 years have elapsed since the offender's last sentence or release from incarceration. The effect of sealing is to preclude making the records of the conviction available to any person or public or private agency (there are some exceptions).
Whether someone is eligible to have a conviction sealed depends on the crime or crimes sought to be sealed. The definition of “eligible offense” is “any crime” except those specified.
The specified excluded offenses are:
- any sex offense Penal Law art. 130;
- any “sexual performance by a child” offense Penal Law art. 263;
- any offense for which registration as a sex offender is required Correction Law 168-a;
- any felony homicide Penal Law art. 125;
- any violent felony Penal Law 70.02;
- any Penal Law class A felony;
- any felony conspiracy Penal Law art. 105 if the object of the conspiracy is not an eligible offense;
- and any attempt to commit an offense Penal Law art. 110 if the attempt constitutes a felony and the offense attempted is not an eligible offense.
Only “two eligible offenses but not more than one felony offense” qualify for sealing. As a result, because an “eligible offense” must be a crime, only two misdemeanor convictions, or one misdemeanor and one felony conviction will qualify for sealing.
But a conviction “of more than one eligible offense, committed as part of the same criminal transaction as defined in the criminal procedure law shall be considered one eligible offense.”
If we are able to get over all of those hurdles, next “at least ten years must have passed since the imposition of the sentence on the defendant's latest conviction” or, if the sentence included incarceration, “the latest release from incarceration.” Any incarceration thereafter “shall be excluded” from the calculation of the ten-year period, and that “ten year period shall be extended by a period or periods equal to the time served."
To top it off, during that ten-year period, the sealing applicant cannot have been convicted of a crime after the last judgment of conviction for which sealing is sought; accordingly, the court cannot consider a sealing application if the applicant has an open case or arrest charge pending.
One question that is not totally clear is that it seems, for example, that while incarceration for a VOP (violation of parole) or post release supervision for reasons other than a criminal conviction would extend the ten-year period, it would not preclude eligibility for sealing of that felony conviction.
The Sealing Application Itself
If you have a qualifying criminal conviction and meet all of the initial criteria above, we can help you with a sealing application to the court.
Every sealing application must include a sworn statement or affidavit by the application demonstrating why the court should grant the sealing. This is your opportunity to show the court how living with the criminal conviction has negatively impacted your life, and also demonstrate to extent of anything positive that has happened in your life over the years such as: earning a diploma or GED, your ability to find employment, character and reference letters, etc.,
We can help you put forth the best application possible to assist the judge in determining the important effect that sealing would have on your productive reintegration into society.
If sealing is granted, then the conviction and any records related to that conviction are sealed and would only be made available to law enforcement in select circumstances. The new law does not contain a "spring back provision." Meaning that a subsequent conviction in the future does not re-open the previously sealed convictions.
The practical effect of sealing is that the conviction would no longer appear on a background check and information related to the conviction does not have to be disclosed when applying for employment, housing, or educational opportunities. It is as if the sealed record never happened, and the applicant can finally close that chapter in his or her life.