N.Y. Criminal Procedure Law § 160.59: Sealing of certain convictions

§ 160.59 Sealing of certain convictions.

1. Definitions: As used in this section, the following terms shall

have the following meanings:

(a) "Eligible offense" shall mean any crime defined in the laws of

this state other than a sex offense defined in article one hundred

thirty of the penal law, an offense defined in article two hundred

sixty-three of the penal law, a felony offense defined in article one

hundred twenty-five of the penal law, a violent felony offense defined

in section 70.02 of the penal law, a class A felony offense defined in

the penal law, a felony offense defined in article one hundred five of

the penal law where the underlying offense is not an eligible offense,

an attempt to commit an offense that is not an eligible offense if the

attempt is a felony, or an offense for which registration as a sex

offender is required pursuant to article six-C of the correction law.

For the purposes of this section, where the defendant is convicted of

more than one eligible offense, committed as part of the same criminal

transaction as defined in subdivision two of section 40.10 of this

chapter, those offenses shall be considered one eligible offense.

(b) "Sentencing judge" shall mean the judge who pronounced sentence

upon the conviction under consideration, or if that judge is no longer

sitting in a court in the jurisdiction in which the conviction was

obtained, any other judge who is sitting in the criminal court where the

judgment of conviction was entered.

1-a. The chief administrator of the courts shall, pursuant to section

10.40 of this chapter, prescribe a form application which may be used by

a defendant to apply for sealing pursuant to this section. Such form

application shall include all the essential elements required by this

section to be included in an application for sealing. Nothing in this

subdivision shall be read to require a defendant to use such form

application to apply for sealing.

2. (a) A defendant who has been convicted of up to two eligible

offenses but not more than one felony offense may apply to the court in

which he or she was convicted of the most serious offense to have such

conviction or convictions sealed. If all offenses are offenses with the

same classification, the application shall be made to the court in which

the defendant was last convicted.

(b) An application shall contain (i) a copy of a certificate of

disposition or other similar documentation for any offense for which the

defendant has been convicted, or an explanation of why such certificate

or other documentation is not available; (ii) a sworn statement of the

defendant as to whether he or she has filed, or then intends to file,

any application for sealing of any other eligible offense; (iii) a copy

of any other such application that has been filed; (iv) a sworn

statement as to the conviction or convictions for which relief is being

sought; and (v) a sworn statement of the reason or reasons why the court

should, in its discretion, grant such sealing, along with any supporting

documentation.

(c) A copy of any application for such sealing shall be served upon

the district attorney of the county in which the conviction, or, if more

than one, the convictions, was or were obtained. The district attorney

shall notify the court within forty-five days if he or she objects to

the application for sealing.

(d) When such application is filed with the court, it shall be

assigned to the sentencing judge unless more than one application is

filed in which case the application shall be assigned to the county

court or the supreme court of the county in which the criminal court is

located, who shall request and receive from the division of criminal

justice services a fingerprint based criminal history record of the

defendant, including any sealed or suppressed records. The division of

criminal justice services also shall 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, and to make such information

available to the court, which may make this information available to the

district attorney and the defendant.

3. The sentencing judge, or county or supreme court shall summarily

deny the defendant's application when:

(a) the defendant is required to register as a sex offender pursuant

to article six-C of the correction law; or

(b) the defendant has previously obtained sealing of the maximum

number of convictions allowable under section 160.58 of the criminal

procedure law; or

(c) the defendant has previously obtained sealing of the maximum

number of convictions allowable under subdivision four of this section;

or

(d) the time period specified in subdivision five of this section has

not yet been satisfied; or

(e) the defendant has an undisposed arrest or charge pending; or

(f) the defendant was convicted of any crime after the date of the

entry of judgement of the last conviction for which sealing is sought;

or

(g) the defendant has failed to provide the court with the required

sworn statement of the reasons why the court should grant the relief

requested; or

(h) the defendant has been convicted of two or more felonies or more

than two crimes.

4. Provided that the application is not summarily denied for the

reasons set forth in subdivision three of this section, a defendant who

stands convicted of up to two eligible offenses, may obtain sealing of

no more than two eligible offenses but not more than one felony offense.

5. Any eligible offense may be sealed only after at least ten years

have passed since the imposition of the sentence on the defendant's

latest conviction or, if the defendant was sentenced to a period of

incarceration, including a period of incarceration imposed in

conjunction with a sentence of probation, the defendant's latest release

from incarceration. In calculating the ten year period under this

subdivision, any period of time the defendant spent incarcerated after

the conviction for which the application for sealing is sought, shall be

excluded and such ten year period shall be extended by a period or

periods equal to the time served under such incarceration.

6. Upon determining that the application is not subject to mandatory

denial pursuant to subdivision three of this section and that the

application is opposed by the district attorney, the sentencing judge or

county or supreme court shall conduct a hearing on the application in

order to consider any evidence offered by either party that would aid

the sentencing judge in his or her decision whether to seal the records

of the defendant's convictions. No hearing is required if the district

attorney does not oppose the application.

7. In considering any such application, the sentencing judge or county

or supreme court shall consider any relevant factors, including but not

limited to:

(a) the amount of time that has elapsed since the defendant's last

conviction;

(b) the circumstances and seriousness of the offense for which the

defendant is seeking relief, including whether the arrest charge was not

an eligible offense;

(c) the circumstances and seriousness of any other offenses for which

the defendant stands convicted;

(d) the character of the defendant, including any measures that the

defendant has taken toward rehabilitation, such as participating in

treatment programs, work, or schooling, and participating in community

service or other volunteer programs;

(e) any statements made by the victim of the offense for which the

defendant is seeking relief;

(f) the impact of sealing the defendant's record upon his or her

rehabilitation and upon his or her successful and productive reentry and

reintegration into society; and

(g) the impact of sealing the defendant's record on public safety and

upon the public's confidence in and respect for the law.

8. When a sentencing judge or county or supreme 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 except as provided for in subdivision nine of

this section; provided, however, the division shall retain any

fingerprints, palmprints and photographs, or digital images of the same.

The clerk of such court shall immediately notify the commissioner of the

division of criminal justice services regarding the records that shall

be sealed pursuant to this section. The clerk also shall notify any

court in which the defendant has stated, pursuant to paragraph (b) of

subdivision two of this section, that he or she has filed or intends to

file an application for sealing of any other eligible offense.

9. Records sealed pursuant to this section 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; or

(e) the criminal justice information services division of the federal

bureau of investigation, for the purposes of responding to queries to

the national instant criminal background check system regarding attempts

to purchase or otherwise take possession of firearms, as defined in 18

USC 921 (a) (3).

10. 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.

11. 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 an eligible

offense and any such waiver shall be deemed void and wholly

unenforceable.