N.Y. Criminal Procedure Law § 160.57: Automatic sealing of convictions

§ 160.57 Automatic sealing of convictions.

1. Convictions for certain traffic infractions or a crime defined in

the laws of this state shall be sealed in accordance with this section

as follows:

(a) Convictions for subdivision one of section eleven hundred

ninety-two of the vehicle and traffic law shall be sealed after three

years.

(b) Criminal convictions shall be sealed upon satisfaction of the

following conditions:

(i) for a misdemeanor conviction, at least three years have passed

from the defendant's release from incarceration or the imposition of

sentence if there was no sentence of incarceration. If the defendant is

subsequently convicted of a crime before a prior conviction is sealed

pursuant to this section, the calculation of time for such prior

conviction shall start upon the same date as the time calculation starts

for the subsequent criminal conviction;

(ii) for a felony conviction, at least eight years have passed from

the date the defendant was last released from incarceration for the

sentence of the conviction eligible for sealing or from the imposition

of sentence if there was no sentence of incarceration. A defendant's

detention for an alleged violation of parole or post-release supervision

shall not interfere with the time calculation prescribed herein unless

and until supervision is revoked resulting in the defendant's

reincarceration. If the defendant is subsequently convicted of a crime

before a prior conviction is sealed pursuant to this section, the

calculation of time for such prior conviction shall start upon the same

date as the time calculation starts for the subsequent criminal

conviction;

(iii) the defendant does not have a subsequent criminal charge pending

in this state;

(iv) the defendant is not currently under the supervision of any

probation or parole department for the conviction eligible for sealing;

(v) the conviction is not for an offense defined as a sex offense or

sexually violent offense under section one hundred sixty-eight-a of the

correction law;

(vi) the conviction is not for a class A felony offense defined in the

penal law, other than class A felony offenses defined in article two

hundred twenty of the penal law;

(vii) the defendant is a natural person;

(viii) the defendant does not have a subsequent felony charge pending

in another jurisdiction that is not a felony charge related to

reproductive or gender affirming care or the possession of cannabis

which would not constitute a felony in New York. This subparagraph shall

apply if and when appropriate federal authorities grant access to

records necessary to query to effectuate the purposes of this

subparagraph in an automated manner; and

(ix) the defendant does not have a subsequent felony conviction in

another jurisdiction in the preceding eight years that is not a felony

conviction related to reproductive or gender affirming care or the

possession of cannabis which would not constitute a felony in New York.

This subparagraph shall apply if and when appropriate federal

authorities grant access to records necessary to query to effectuate the

purposes of this subparagraph in an automated manner.

(c) If, after the applicable period of time for the sealing of a

conviction has been satisfied, the conviction remains ineligible for

sealing pursuant to subparagraphs (iii), (iv), (viii) or (ix) of

paragraph (b) of this subdivision, the office of court administration

shall subsequently check for eligibility no less than quarterly and upon

subsequent checks, or the receipt of a form in accordance with paragraph

(dd) of subdivision two of section two hundred twelve of the judiciary

law, the conviction shall be sealed if all other conditions for sealing

under this section are satisfied.

(d) In accordance with all other applicable laws, rules, and

regulations regarding the scope, access, use, disclosure,

confidentiality and retention of criminal history information, records

of convictions sealed pursuant to this section including photographs,

photographic plates or proofs, palmprints, fingerprints or retina scans

shall not be accessed by or made available to any person or public or

private agency, except for:

(i) the defendant and such defendant's counsel;

(ii) any court, defense counsel or prosecutor for the purposes of a

pending criminal proceeding or proceedings brought in a criminal court

pursuant to article six-C of the correction law;

(iii) qualified agencies, as defined in subdivision nine of section

eight hundred thirty-five of the executive law, federal and state law

enforcement agencies, and interstate and international authorities as

defined in subdivision three of section two of the public authorities

law, when acting within the scope of their law enforcement duties;

(iv) the court, prosecutor, and defense counsel if the defendant

becomes a witness in a criminal proceeding;

(v) the court and parties if the defendant becomes a witness or party

in a civil proceeding;

(vi) when an individual is a defendant in a criminal proceeding or

proceedings brought in a criminal court pursuant to article six-C of the

correction law and the sealed records of conviction of a third party are

integral to their defense. In such instances, use of sealed records of

conviction shall be requested upon ex parte motion in any superior

court, or in any district court, city court or the criminal court of the

city of New York provided that such court is where the action is

pending. The applicant must demonstrate to the satisfaction of the court

that the records will be used for the purpose of this subparagraph;

(vii) individuals or entities that are required by a local law in

effect one year prior to the chapter of the laws of two thousand

twenty-three that added this section, a state law, or a federal law or

regulation to request and receive a fingerprint-based check of criminal

history information. Nothing herein shall prohibit the commissioner of

education or the office of school personnel review and accountability

from receiving or using convictions sealed pursuant to this section for

purposes of subdivisions seven, seven-a and seven-b of section three

hundred five of the education law;

(viii) individuals or entities that are authorized by a local law in

effect one year prior to the chapter of the laws of two thousand

twenty-three that added this section, a state law, or a federal law or

regulation to request and receive a fingerprint-based check of criminal

history information in relation to the individual's fitness to have

responsibility for the safety and well-being of children or adolescents,

elderly individuals, individuals with disabilities, or otherwise

vulnerable populations. The division of criminal justice services shall

maintain an up to date list of citations of the local, state, and

federal statutes or federal regulations authorizing the access described

herein;

(ix) any prospective employer of a police officer or peace officer as

those terms are defined in subdivisions thirty-three and thirty-four of

section 1.20 of this chapter, in relation to an application for

employment as a police officer or peace officer, provided, however, that

every person who is an applicant shall be furnished with a copy of all

records obtained under this paragraph and afforded an opportunity to

make an explanation thereto;

(x) any federal, state or local officer or agency with responsibility

for the issuance of licenses to possess a firearm, rifle or shotgun or

with responsibility for conducting background checks before transfer or

sale of a firearm or explosive, when the officer or agency is acting

pursuant to such responsibility. This includes the criminal justice

information services division of the federal bureau of investigation,

for the purposes of responding to queries to the national instant

background check system regarding attempts to purchase or otherwise take

possession of firearms, rifles or shotguns, as defined in 18 U.S.C. §

921 (A)(3);

(xi) for the purposes of civilian investigation or evaluation of a

civilian complaint or civil action concerning law enforcement or

prosecution actions, upon ex parte motion in any superior court, or in

any district court, city court or the criminal court of the city of New

York provided that such court sealed the record; the applicant must

demonstrate to the satisfaction of the court that the records will be

used for the purposes of this subparagraph;

(xii) for information provided to an individual or entity pursuant to

paragraph (e) of subdivision four of section eight hundred thirty-seven

of the executive law or for bona fide research purposes provided all

identifying information is removed;

(xiii) when an individual seeks to avail themselves of a public

program or benefit, including but not limited to an immigration benefit,

for which the sealed records of conviction of a third party are

otherwise authorized by law or legal process to be disclosed in

furtherance of their application for such program or benefit. In such

instances, the individual or their attorney shall request the use of

sealed records pursuant to a form as prescribed by the chief

administrator of the courts pursuant to paragraph (ee) of subdivision

two of section two hundred twelve of the judiciary law;

(xiv) for the purpose of collection of restitution, reparation, fines,

surcharges, or fees imposed. In such instances, use of sealed records

shall be requested upon ex parte motion in any superior court, or in any

district court, city court, town court, village court, or criminal court

of the city of New York provided that such court is where the action is

pending. The applicant must demonstrate to the satisfaction of the court

that the records will be used for the purpose of this subparagraph;

(xv) transportation network companies that are required or authorized

by state law to request criminal history information pursuant to section

sixteen hundred ninety-nine of the vehicle and traffic law;

(xvi) the state education department for the purposes of investigating

professional misconduct as defined in subparagraph (i) of paragraph (a)

of subdivision five of section sixty-five hundred nine of the education

law, consideration of restoration of a professional license pursuant to

section sixty-five hundred eleven of the education law, or

determinations for issuing a license to practice a profession or issuing

certificates and privileges for which prior licensure is required, for

the professions under articles one hundred thirty-one, one hundred

thirty-one-b, one hundred thirty-two, one hundred thirty-three, one

hundred thirty-four, one hundred thirty-five, one hundred thirty-six,

one hundred thirty-seven, one hundred thirty-nine, one hundred forty,

one hundred forty-one, one hundred forty-three, one hundred forty-four,

one hundred forty-five, one hundred forty-seven, one hundred forty-nine,

one hundred fifty-three, one hundred fifty-four, one hundred fifty-five,

one hundred fifty-six, one hundred fifty-seven, one hundred fifty-nine,

one hundred sixty, one hundred sixty-two, one hundred sixty-three, one

hundred sixty-four, and one hundred sixty-seven as such professions are

defined in title eight of the education law, provided that the state

education department certifies to the division of criminal justice

services that it is investigating an individual licensed to practice a

profession pursuant to article one hundred thirty of the education law

for professional misconduct as defined in paragraph (a) of subdivision

five of section sixty-five hundred nine of the education law,

considering restoration of a professional license pursuant to section

sixty-five hundred eleven of the education law, or making a

determination for issuing a license to practice a profession or issuing

certificates and privileges for which prior licensure is required as

appropriate. Provided, further, that the board of regents may consider

any prior conviction that formed the basis of a determination of the

board of regents in a disciplinary proceeding pursuant to section

sixty-five hundred ten of the education law and the rules and

regulations promulgated pursuant thereto in an application for

reconsideration, even if such conviction later becomes sealed pursuant

to this section; and

(xvii) the office of mental health and the office for people with

developmental disabilities, where such agencies are statutorily

authorized to receive such information, provided further, that such

information may also be made available for case review under section

10.05 of the mental hygiene law, as well as to providers licensed,

funded, designated, certified or otherwise authorized by the office of

mental health or the office for people with developmental disabilities,

where such information is included in the clinical record of any person

under the care of or receiving services from such provider or program.

(e) Where the sealing required by this section has not taken place,

including where supporting court records cannot be located or have been

destroyed, and a defendant or their attorney submits a valid form in

accordance with paragraph (dd) of subdivision two of section two hundred

twelve of the judiciary law of such fact to the office of court

administration, such conviction shall be sealed as set forth in this

subdivision within thirty days of the receipt of such form.

(f) The department of corrections and community supervision, in

coordination with the division of criminal justice services, shall

provide the office of court administration with the data necessary to

determine appropriate records to be sealed pursuant to this section,

including but not limited to (i) the date or dates of release from state

incarceration of individuals who have a sentence of incarceration for a

felony conviction, and (ii) the date or dates of initial parole or

post-release supervision and corresponding date or dates of discharge,

as applicable.

(g) The chief administrative officer of each local correctional

facility shall provide the office of court administration with the data

necessary to determine appropriate records to be sealed pursuant to this

section, including but not limited to the date or dates of release of

individuals who have satisfied a definite sentence of imprisonment.

2. Upon the sealing of a conviction pursuant to this section the

office of court administration shall immediately notify the division of

criminal justice services, the court of conviction, county clerks and

the heads of all appropriate police and sheriff departments,

prosecutors' offices and law enforcement agencies that the conviction is

sealed. Upon receipt of such notification, records of or relating to

such conviction shall be immediately sealed as follows:

(a) Every photograph of the defendant and photographic plates or

proof, and all palmprints, fingerprints and retina scans taken or made

of the defendant in regard to the sealed conviction, and all duplicates,

reproductions, and copies thereof, except a digital fingerprint that is

on file with the division of criminal justice services for a conviction

that has not been sealed pursuant to this section, shall be marked as

sealed by any entity notified under this subdivision having any such

photograph, photographic plate or proof, palmprint, fingerprints or

retina scan in its possession or under its control by conspicuously

indicating on the face of the record or at the beginning of the

digitized file of the record that the record has been designated as

sealed.

(b) Every official record and paper and duplicates and copies thereof,

including, but not limited to, judgments and orders of a court but not

including published court decisions or opinions or records and briefs on

appeal, relating to the sealed conviction, on file with the entity

notified under this subdivision shall be marked as sealed by

conspicuously indicating on the face of the record or at the beginning

of the digitized file of the record that the record has been designated

as sealed.

(c) Entities subject to the requirements of this subdivision shall not

use or access such sealed information unless otherwise authorized

pursuant to this section or any other section of law.

(d) Nothing in this section shall be construed to interfere with the

applicable laws, rules and regulations requiring the division of

criminal justice services to administer and maintain criminal history

records as set forth in article thirty-five of the executive law.

3. (a) Nothing in this section requires the sealing or destruction of

DNA information maintained in the New York state DNA database, in

accordance with article forty-nine-B of the executive law, of an

individual whose conviction is sealed under this section.

(b) Nothing in this section requires the sealing or destruction of

records maintained by the department of motor vehicles, and nothing in

this section shall be construed to contravene the vehicle and traffic

law, the federal driver's privacy protection act (18 U.S.C 2721 et.

seq.), the REAL ID Act of 2005 (Public Law 109-13; 49 U.S.C. 30301

note), section 7209 of the Intelligence Reform and Terrorism Prevention

Act of 1986 (49 U.S.C. 31311), the Commercial Motor Vehicle Safety Act

of 1986 (Public Law 99-570; 49 U.S.C. 313), the Motor Carrier Safety

Improvement Act of 1999 (Public Law 106-159), or regulations promulgated

pursuant to any such chapter or act.

(c) The division of criminal justice services is authorized to

disclose a conviction that is sealed pursuant to this section to

entities that are required by federal law, or by rules and regulations

promulgated by a self-regulatory organization created under federal law,

to consider sealed convictions. Such entities must certify to the

division that they are required by federal law, or by rules and

regulations promulgated by a self-regulatory organization that has been

created under federal law, to make an inquiry about or consider records

sealed pursuant to this section for purposes of employment, licensing,

or clearance. To the extent permitted by federal law, a record sealed

pursuant to this section may not be considered a conviction that would

prohibit the employment, licensing or clearance of the defendant.

(d) Nothing in this section shall prohibit entities required by

federal law to consider sealed convictions, or by rules and regulations

promulgated by a self-regulatory organization that has been created

under federal law, from making an inquiry about or considering an

applicant's criminal history for purposes of employment, licensing, or

clearance from inquiring into convictions sealed pursuant to this

section.

(e) In any civil action, an official record of a conviction that has

been sealed pursuant to this section may not be introduced as evidence

of negligence against a person or entity that provided employment,

contract labor or services, volunteer work, licensing, tenancy, a home

purchase, a mortgage, an education, a loan, or insurance if such record

was sealed and was not provided to the person or entity by or on behalf

of a governmental entity in accordance with this section in response to

such person's or entity's authorized and timely request for conviction

history information.

(f) A person or entity described in this subdivision, acting

reasonably and in good faith, may not have a duty to investigate the

fact of a prior conviction that has been sealed pursuant to this

section.

4. No defendant shall be required or permitted to waive eligibility

for sealing pursuant to this section as part of a plea of guilty,

sentence or any agreement related to a conviction for a violation of the

laws of this state. Any such waiver is void and unenforceable.

5. Sealing as set forth in subdivision two of this section is without

prejudice to a defendant or their attorney seeking further relief

pursuant to article four hundred forty of this chapter. Nothing in this

section is intended or shall be interpreted to diminish or abrogate any

rights or remedies otherwise available to the defendant.

6. The office of court administration shall make diligent efforts to

promptly seal all conviction records eligible for sealing under this

section where such convictions were entered on or before the effective

date of this section and, in any event, shall ensure sealing of such

convictions is complete no later than three years after such effective

date.

7. A conviction which is sealed pursuant to this section is included

within the definition of a conviction for the purposes of any criminal

proceeding in which the fact of a prior conviction would enhance a

penalty or is an element of the offense charged.

8. Nothing in this section shall be construed to permit sealing of a

conviction before the expiration or termination of a sentence of

incarceration, parole, probation, or post-release supervision for such

conviction.

9. Nothing in this section shall be construed to affect or invalidate

any active order of protection issued in relation to a conviction sealed

under this section.

10. Nothing in this section shall be construed to require or authorize

the discharge of the requirement to pay any restitution, reparation,

fines, surcharges, or fees imposed for a conviction sealed under this

section or the sealing of a criminal or civil proceeding for the

collection of any such amount due, unless such proceeding is otherwise

eligible for sealing under this section or any other provision of law.