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).
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 aviolation,,,
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
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 isone 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.