Sealing the record of an arrest and an offense that was committed in New York is important to fully understand. Reading the actual statutes can be confusing without some context and background info.
I will try to highlight and explain in simple terms the main points to NYS sealing.
First, what can get sealed in New York State?
Non -criminal offenses can get sealed. That means the large majority of violations can, and should be sealed. Under Section 160.55 (NYS Criminal Procedure Sealing) statute,
three violations are NOT sealed:
"other than a violation of loitering (1) and (2) (sexual or prostitution)
as described in paragraph (d)
or (e) of subdivision one
of section 160.10 of this chapter or the
(3) violation of operating a motor vehicle while
ability impaired "Things like disorderly conduct, unlawful possession of marijuana, and trespass (violation level) get sealed. Sometimes the best plea bargaining (negotiating) is from a misdemeanor level offense (crime) to a non-criminal (violation) level offense.
A great example: New York Penal Law Section 140.10 Criminal Trespass in the third degree is a misdemeanor. It means that you went over or through a fence or an enclosure onto private property without permission. Like jumping a fence to a rock concert or an event.
While New York Penal Law Section 140.05 Trespass is merely a violation (unlawfully on property).
New York State has NO expungement statute for crimes. So a conviction for criminal trespass would be on your permanent record forever, and violation trespass would be sealed. You would prefer violations to misdemeanors any day of the week.
Second, What is Sealing in New York State?
I always say NYS because every state is different. Sealing is under NYS Criminal Procedure Law
Section 160.55 The best way to understand sealing is think:
SEALING = SHIELDING
Non-criminal (violations, traffic offenses) are generally shielded from view by the public, and businesses (corporations). Generally means just that, if they knew the city, town, village, and they knew the court, they that you did something there, they would have to go to that specific court to get a record of your violation there.
Now to the statute:
Order upon termination of criminal action by conviction for noncriminal offense; entry of waiver; administrative findings (what a mouthful that is).
Quite simply,
1. Upon the termination (final sentencing) of a criminal action or proceeding against a
person by the conviction of such person of a traffic infraction or a
violation,,,
the clerk of the court wherein (where it happened)
such criminal
action or proceeding was terminated shall immediately
notify the
commissioner of the division of criminal justice services and
the heads of
all appropriate police departments
and other law
enforcement
agencies that the action has been terminated
by such
conviction.
Upon receipt of notification of such termination:
(a) every photograph of such person and
photographic plate or proof,
and all
palmprints and fingerprints taken or made of such person
pursuant to the provisions
of this article in regard to the action or
proceeding
terminated, and all duplicates and copies thereof, except a
digital fingerprint image where authorized
pursuant to paragraph (e) of
this
subdivision, shall forthwith be, at the discretion of the recipient
agency, either
destroyed or returned to such person, or to the attorney
who
represented such person at the time of the termination of the action
or proceeding, at the address
given by such person or attorney during
the action or
proceeding, by the division of criminal
justice services
and by any police department or law enforcement agency having any
such
photograph,
photographic plate or proof, palmprints or fingerprints in
its possession
or under its control;
(b) any police department or
law enforcement agency, including the
division of
criminal justice services, which
transmitted or otherwise
forwarded to
any agency of the United States or of any other state or of
any other jurisdiction outside the state of
New York copies of any such
photographs,
photographic plates or proofs, palmprints and fingerprints,
shall
forthwith formally request in writing
that all such copies be
destroyed or
returned to the police department or law enforcement agency
which transmitted or forwarded
them, and upon such return such
department or
agency shall, at its discretion, either destroy or return
them as
provided herein;
(c) all official records
and papers relating to the arrest or
prosecution,
including all duplicates and copies thereof, on file with
the division of criminal
justice services, police agency, or
prosecutor's
office shall be sealed and not made available to any person
or public or
private agency;"
Destruction of photographs (mug shots), prints, official and criminal records.
Lastly, are they (the records) really destroyed and/or returned?
Yes and no. They are supposed to but to satisfy the future potential governmental needs (requirements)
they are NOT really destroyed fully.
The real question is will they (the records) still exist?
There is a copy still there as I mentioned above. Shielded (sealed) but not gone.
ALL THE BIG IF'S
If you apply for a gun permit they will be seen, if you have any future criminal activity they will probably be seen by the government prosecutor, or if you are placed on parole release or probation release from a future crime they will be seen.
(d) the records referred to in paragraph (c) of this
subdivision shall
be made
available to the person accused or to such person's
designated
agent, and
shall be made available to (i) a prosecutor in any proceeding
in which the accused has moved for an order pursuant to section
170.56
(marijuana ACD) or 210.46 of
this chapter, or (ii) a law enforcement agency
upon exparte motion in any superior court, if such agency demonstrates to the
satisfaction
of the court that justice requires
that such records be
made available
to it, or (iii) any state or local officer or agency with
responsibility for the issuance of licenses to possess guns, when the
accused has
made application for such a license, or (iv) the New York
state division
of parole when the accused is under parole supervision as
a result of
conditional release or
parole release granted by the New
York state board of parole
and the arrest which is the subject of the
inquiry is one which occurred while the accused was under such
supervision,
or (v) the probation department responsible for supervision
of the accused when
the arrest which is the subject of the inquiry is
one which occurred while the accused was under such
supervision
They will generally NOT be seen (they are shielded) by the public company, organization, or a private investigating agency. Don't need to be listed on employment applications, etc.
Lawrence (Larry) Newman, D.C., J.D.
Doctor of Chiropractic
Attorney and Counselor at Law
504 North Aurora Street
Ithaca, NY 14850
607-229-5184
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