N.Y. Criminal Procedure Law § 160.58: Conditional sealing of certain controlled substance, marihuana or specified offense convictions

§ 160.58 Conditional sealing of certain controlled substance, marihuana

or specified offense convictions.

1. A defendant convicted of any offense defined in article two hundred

twenty or two hundred twenty-one of the penal law or a specified offense

defined in subdivision five of section 410.91 of this chapter who has

successfully completed a judicial diversion program under article two

hundred sixteen of this chapter, or one of the programs heretofore known

as drug treatment alternative to prison or another judicially sanctioned

drug treatment program of similar duration, requirements and level of

supervision, and has completed the sentence imposed for the offense or

offenses, is eligible to have such offense or offenses sealed pursuant

to this section.

2. The court that sentenced the defendant to a judicially sanctioned

drug treatment program may on its own motion, or on the defendant's

motion, order that all official records and papers relating to the

arrest, prosecution and conviction which resulted in the defendant's

participation in the judicially sanctioned drug treatment program be

conditionally sealed. In such case, the court may also conditionally

seal the arrest, prosecution and conviction records for no more than

three of the defendant's prior eligible misdemeanors, which for purposes

of this subdivision shall be limited to misdemeanor offenses defined in

article two hundred twenty or two hundred twenty-one of the penal law.

The court may only seal the records of the defendant's arrests,

prosecutions and convictions when:

(a) the sentencing court has requested and received from the division

of criminal justice services or the Federal Bureau of Investigation a

fingerprint based criminal history record of the defendant, including

any sealed or suppressed information. The division of criminal justice

services shall also include a criminal history report, if any, from the

Federal Bureau of Investigation regarding any criminal history

information that occurred in other jurisdictions. The division is hereby

authorized to receive such information from the Federal Bureau of

Investigation for this purpose. The parties shall be permitted to

examine these records;

(b) the defendant or court has identified the misdemeanor conviction

or convictions for which relief may be granted;

(c) the court has received documentation that the sentences imposed on

the eligible misdemeanor convictions have been completed, or if no such

documentation is reasonably available, a sworn affidavit that the

sentences imposed on the prior misdemeanors have been completed; and

(d) the court has notified the district attorney of each jurisdiction

in which the defendant has been convicted of an offense with respect to

which sealing is sought, and the court or courts of record for such

offenses, that the court is considering sealing the records of the

defendant's eligible misdemeanor convictions. Both the district attorney

and the court shall be given a reasonable opportunity, which shall not

be less than thirty days, in which to comment and submit materials to

aid the court in making such a determination.

3. At the request of the defendant or the district attorney of a

county in which the defendant committed a crime that is the subject of

the sealing application, the court may conduct a hearing to consider and

review any relevant evidence offered by either party that would aid the

court in its decision whether to seal the records of the defendant's

arrests, prosecutions and convictions. In making such a determination,

the court shall consider any relevant factors, including but not limited

to: (i) the circumstances and seriousness of the offense or offenses

that resulted in the conviction or convictions; (ii) the character of

the defendant, including his or her completion of the judicially

sanctioned treatment program as described in subdivision one of this

section; (iii) the defendant's criminal history; and (iv) the impact of

sealing the defendant's records upon his or her rehabilitation and his

or her successful and productive reentry and reintegration into society,

and on public safety.

4. When a court orders sealing pursuant to this section, all official

records and papers relating to the arrests, prosecutions, and

convictions, including all duplicates and copies thereof, on file with

the division of criminal justice services or any court shall be sealed

and not made available to any person or public or private agency;

provided, however, the division shall retain any fingerprints,

palmprints and photographs, or digital images of the same.

5. When the court orders sealing pursuant to this section, the clerk

of such court shall immediately notify the commissioner of the division

of criminal justice services, and any court that sentenced the defendant

for an offense which has been conditionally sealed, regarding the

records that shall be sealed pursuant to this section.

6. Records sealed pursuant to this subdivision shall be made available

to:

(a) the defendant or the defendant's designated agent;

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

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

law enforcement agencies, when acting within the scope of their law

enforcement duties; or

(c) any state or local officer or agency with responsibility for the

issuance of licenses to possess guns, when the person has made

application for such a license; or

(d) 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 for the position of police officer or

peace officer shall be furnished with a copy of all records obtained

under this paragraph and afforded an opportunity to make an explanation

thereto.

7. The court shall not seal the defendant's record pursuant to this

section while any charged offense is pending.

8. If, subsequent to the sealing of records pursuant to this

subdivision, the person who is the subject of such records is arrested

for or formally charged with any misdemeanor or felony offense, such

records shall be unsealed immediately and remain unsealed; provided,

however, that if such new misdemeanor or felony arrest results in a

termination in favor of the accused as defined in subdivision three of

section 160.50 of this article or by conviction for a non criminal

offense as described in section 160.55 of this article, such unsealed

records shall be conditionally sealed pursuant to this section.