Sunday, August 26, 2012

Ithaca Lawyer What is New York State Sealing Really Mean?


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