Monday, May 22, 2017

Ithaca DWI Lawyer: Sealed, Expunged, and Done. The Truth About New York Records

If sealing records was as easy as this

I got an email the other day from an old client, it had been a number a years but I remembered the case. A bar fight, he got thrown out, and then too drunk to know better came back in. Cops called, the charge criminal trespass. It started out as a misdemeanor but we got it reduced to a disorderly conduct with a one year conditional discharge. The basic stay out of trouble and be done.

Why was he calling me after all these years?

What was the problem he was having about something that resolved so long ago?

The Problem with Little Old New York State Village and Town Courts is that they are Little and Old

Talk about living in the dark ages, we still have courts or at least still had courts as late as the 2000's without computers. Up until 2007, we were still more or less offline. These courts were still using pen and paper to write everything down, and then were supposed to file it with the office of court administration. I can't even tell you how many courts still don't file things properly. It is a true travesty of justice.

Beautiful Canada, Neighbor to the North
Well that is the context to my little story because my old client wants to go to Canada. He has a whole summer trip/vacation planned in the great white North. The big kibosh came when the Canadian authorities told him he still had an outstanding criminal misdemeanor charge in New York State. Therefore, you are ineligible to enter Canada. Well he thought, that just can't be, I took care of that many years ago.

I contacted the current court clerk to pull the file out of box in their basement. Apparently the old clerk, since retired never filed the CDR (criminal disposition record) with the state. Meaning he still had the outstanding crime as still active on his criminal history. I asked that that be rectified immediately. I then inquired as to sealing his violation, now mind you ALL of this should have been done AUTOMATICALLY.

Remember New York law offers NO expungement, the best we ever have is a dismissal of charges (unlikely) or the best is a reduction to a violation level offense with sealing of that violation. This case was never even reported as resolved, and reduced. So as to automatic sealing, again nada. Then I was told by the clerk I needed to file a motion to seal his old violation. I sent in my request to the judge ASAP for sealing by fax and mail. All of this needed correction as soon as possible. Unfortunately, I don't hold much hope for expediency in this situation.

This is the LAW (procedure) Under Penal Law Section 160.55 on violations and sealing from the Main New York State Judicial Website:

Sealed Records: Violations and Traffic Infractions (PL § 160.55)

All Traffic Infractions and Violations, except for Driving While Ability Impaired (VTL § 1192(1) and Loitering for the Purpose of Engaging in a Prostitution Offense (PL § 240.37), are automatically sealed under CPL §160.55. The court will notify the Department of Criminal Justice System and Police of the sealing. You do not have to do anything. All Department of Criminal Justice System, Police, and Prosecutor records are sealed. But, court files are not sealed. This means that someone can search court records and find out about the conviction. Violations and traffic infractions do not show up on the court system’s records search.
If you were convicted of a violation or traffic infraction before November 1, 1991, you need to ask the court to seal the records. Or, if a record for a violation or traffic infraction after November 1, 1991 was supposed to be sealed but it comes up on your Criminal Record Search, you can ask the court to seal that record. See Criminal Records: Correcting a Mistake.

Common Violations and Traffic Infractions that are Sealed

Common Penal Law Violations include:
100.00 - Criminal Solicitation (5th Degree)
140.05 - Trepass
145.30 - Unlawfully Posting Advertisements
215.58 - Failing to Respond to Appearance Ticket
240.20 - Disorderly Conduct
265.06 - Unlawful Possession of a Weapon Upon School Grounds
240.26 - Harassment, (2nd Degree)
240.35 - Loitering
240.40 - Appearance in Public Under Influence of Narcotics or Drug other than Alcohol
245.01 - Exposure of a Person
245.02 - Promoting Exposure of a Person 
245.05 - Offensive Exhibition
Common Vehicle and Traffic Law Infractions include:
509 - "Violations" (general infractions)
511-a - Facilitating unlicensed operation (3rd Degree)

Conditional Discharges

If you are convicted of a violation and sentenced to a 1 year conditional discharge, most courts do not seal the violation until the 1 year period is over. Otherwise, your case should be automatically sealed at the end of the 1 year period. If it is not sealed, read Criminal Records: Correcting a Mistake.

Don't Should on Me New York State Town and Village Courts

I guess the operative word is SHOULD, as in should be automatically SEALED. It never happened. Now many of the city courts will do all of this as they state automatically but I can't even imagine the number of little town and village courts where this is happening and continues to happen.

At a Minimum New York Town and Village Courts MUST File CDR (criminal record of disposition)

Records not sealed is not is the bigger part of this case, the fact that a CDR, criminal record of disposition showing it was resolved (the crime that is) with a non-criminal disorderly conduct charge is the real issue.

How Many Summer Travelers to Canada Will Be Stopped at the Border Due to Clerical Malfeasance?

Canada can and will block entry and deem it an illegal entry with someone having a criminal conviction let alone an outstanding and unresolved criminal charge in New York. They don't even want those with violation level DWAI conviction (non-criminal) entering.

So the moral to this story is, if you had any criminal charges in the past two decades in New York State spend the time and the money to check your past New York State history before applying for a job, a license, a gun permit, certification or anything else of value. Having a surprise like this is not fun.