Tuesday, September 5, 2017

Can You Seal Your Criminal Conviction Under New York's New Sealing Law 160.59?

Our surprise is New York's
New Sealing Law

In April 2017 New York State finally approved a $153 billion dollar budget bill. Much like a box of Cracker Jacks hidden inside this budget bill was a surprise legislative provision. A new law is to take effect in October of 2017 which allows for sealing of criminal records. Those convicted in 2007 or before may want to begin this process.

This is a truly historical, unprecedented, and ground breaking law. This legislation brings hope to millions of New Yorkers who were marked for life by virtue of having an old criminal conviction. New York has NO expungement law so sealing is the next best thing.

There is a lot to discuss about New York State's new criminal record sealing Criminal Procedure SEALING Law § 160.59. Giving people a fresh start is a nice surprise in my opinion.


In this blog post I'll start with the basics: who qualifies for sealing their criminal record, what offenses can be sealed, when can you apply for sealing, and how is sealing different from expungement.

New York Sealing Is Not Expungement in Any Way, Shape, or Form

Expungement means to wipe clean, to get rid of, to vacate a criminal conviction entirely. New York State does have something along the lines of expungement for those under the age of 19. Those teens (under 19 years of age) get classified as YO (youthful offenders) and get special treatment under the law. Their expungement is called adjudication. This is where their criminal conviction is actually vacated by a judge. Vacating a criminal conviction is getting rid of it as if it never happened.

New York Criminal Convictions are a Matter of Record  

New York legal history never had sealing for criminal convictions. Once convicted you carried it forever, until and even beyond your death. You were basically marked for life. New York had sealing law only for non-criminal offenses. If you had a violation, like disorderly conduct then it would be sealed. Your record would be made unavailable for public viewing.

Sealing is merely a cover up. The records remain but they cannot be seen or accessed by prying eyes. Sealing makes it unseen to the public, employers, and most private parties. It only permits certain government parties, usually law enforcement and district attorneys to see your old criminal history in it's entirety.

I. What criminal convictions are able to be sealed under the new law?

New York Criminal Record Sealing Allows for the Sealing of Two Eligible Criminal Offenses

Under the new sealing law you are allowed to seal up to two New York criminal convictions. They can be one felony and one misdemeanor or two misdemeanors. Most of the common New York offenses, like DWI and DWAI drugs are sealable. You can seal almost any misdemeanor or felony conviction as long as it's not mentioned in the categories below.

Violent Offenses, Serious Offenses, and Sexual Offenses Are Unsealable Under § 160.59

Violent offenses are not by what you believe or think or feel are violent crimes. They are based on  New York's legal definition of violent crimes. New York CPL (criminal procedure law) section 70.02 defines which offenses are classified as violent under our state law.

Depending upon the degree of the crime may in fact differentiate whether New York thinks it is a violent crime. One level of burglary or assault could be violent while another may be legally classified as NON- violent. Always have your criminal record and history reviewed by a criminal defense attorney to see if your crimes qualify for sealing under the new sealing law.

New York Criminal Procedure SEALING Law § 160.59 mandates all of these as being UN-sealable:

  • Any offense defined by NY Penal Law Article 130 
  • Any offense defined by NY Penal Law Article 263 
  • Any offense that requires registration as a sex offender (SORA) 
  • Any felony defined by NY Penal Law Article 125
  • Any Class “A” Felony
  • Any violent felony defined by NY CPL 70.02 (certain B, C, D, and E felonies)


The Excluded Violent Felonies Under NY CPL 70.02:

CLASS LEVEL"B" VIOLENT FELONIES

An attempt to commit the class A-1 felonies of murder in the second degree as defined in section 125.25 

Kidnapping in the first degree as defined in section 135.25 

Arson in the first degree as defined in section 150.20

Manslaughter in the first degree as defined in section 125.20

Aggravated manslaughter in the first degree as defined in section 125.22

Rape in the first degree as defined in section 130.35

Criminal sexual act in the first degree as defined in section 130.50

Aggravated sexual abuse in the first degree as defined in section 130.70

Course of sexual conduct against a child in the first degree as defined in section 130.75

Assault in the first degree as defined in section 120.10

Kidnapping in the second degree as defined in section 135.20

Burglary in the first degree as defined in section 140.30

Arson in the second degree as defined in section150.15

Robbery in the first degree as defined in section 160.15

Incest in the first degree as defined in section 255.27

Criminal possession of a weapon in the first degree as defined in
section 265.04 

Criminal use of a firearm in the first degree as defined in section 265.09

Criminal sale of a firearm in the first degree as defined in section 265.13

Aggravated assault upon a police officer or a peace officer as defined in section 120.11

Gang assault in the first degree as defined in section 120.07

Intimidating a victim or witness in the first degree as defined in section 215.17

Hindering prosecution of terrorism in the first degree as defined in section 490.35

Criminal possession of a chemical weapon or biological weapon in the second degree as defined in section 490.40

Criminal use of a chemical weapon or biological weapon in the third degree as defined in section 490.47.
  
CLASS LEVEL "C" VIOLENT FELONIES

An attempt to commit any of the class level "B" felonies listed above

Aggravated criminally negligent homicide as defined in section 125.11

Aggravated manslaughter in the second degree as defined in section 125.21

Aggravated sexual abuse in the second degree as defined in section130.67

Assault on a peace officer, police officer, fireman or emergency medical services professional as defined in section120.08

Assault on a judge as defined in section 120.09, gang assault in the second degree as defined in section 120.06

Strangulation in the first degree as defined in section 121.13

Burglary in the second degree as defined in section 140.25

Robbery in the second degree  as defined in section160.10

Criminal possession of a weapon in the second degree as defined in section 265.03

Criminal use of a firearm in the second degree as defined in section 265.08

Criminal sale of a firearm in the second degree as defined in section 265.12

Criminal sale of a firearm with the aid of a minor as defined in section 265.14

Aggravated criminal possession of a weapon as defined in section 265.19

Soliciting or providing support for an act of terrorism in the first degree as defined in section 490.15

Hindering prosecution of terrorism in the second degree as defined in section 490.30

Criminal possession of a chemical weapon or biological weapon in the third degree as defined in section 490.37

CLASS LEVEL "D" VIOLENT FELONIES

An attempt to commit class level "C" violent felonies listed above

Reckless assault of a child as defined in section 120.02

Assault in the second degree as defined in section 120.05

Menacing a police officer or peace officer as defined in section 120.18

Stalking in the first degree, as defined in subdivision one of section 120.60

Strangulation in the second degree as defined in section 121.12

Rape in the second degree as defined in section130.30

Criminal sexual act in the second degree as defined in section 130.45

Sexual abuse in the first degree as defined in section 130.65
course of sexual conduct against a child in the second degree as defined in section130.80

Aggravated sexual abuse in the third degree as defined in section130.66

Facilitating a sex offense with a controlled substance as defined in section 130.90

Criminal possession of a weapon in the third degree as defined in subdivision five, six, seven, eight, nine or ten of section 265.02  (Pay careful attention to the exact subsection here, because only the listed subsections are classified as violent)

Criminal sale of a firearm in the third degree as defined in section 265.11

Intimidating a victim or witness in the second degree as defined in section 215.16

Soliciting or providing support for an act of terrorism in the second degree as defined in section 490.10

Making a terroristic threat as defined in section 490.20

Falsely reporting an incident in the first degree as defined in section 240.60
placing a false bomb or hazardous substance in the first degree as defined in section 240.62

Placing a false bomb or hazardous substance in a sports stadium or arena, mass

Transportation facility or enclosed shopping mall as defined in section240.63

Aggravated unpermitted use of indoor pyrotechnics in the first degree as defined in section 405.18.

CLASS LEVEL "E" VIOLENT FELONIES

An attempt to commit any of the felonies of criminal possession of a weapon in the third degree as defined in subdivision five, six, seven or eight of section 265.02 as a lesser included offense of that section as defined in section 220.20 of the criminal procedure law

Persistent sexual abuse as defined in section 130.53

Aggravated sexual abuse in the fourth degree as defined in section 130.65-a

Falsely reporting an incident in the second degree as defined in section 240.55

Placing a false bomb or hazardous substance in the second degree as defined in section 240.61

II. Are my criminal convictions able to be sealed now or do I have to wait?

Any eligible criminal conviction can be sealed after 10 years from the date of conviction. The date of your sentencing for the crime is the date of conviction. This date will change if you were sentenced to any incarceration time. If you spent any time in jail or prison then that time must be added to your sentencing date to arrive at a new date for sealing. It is actually time in custody not just your sentence that counts to calculate sealing time.

For example, if you were sentenced to six months in jail on your conviction (sentencing) date.

To seal your criminal conviction you must wait 10 years and whatever time you were actually in custody. If you spent only four months in the custody of the state then it's four months and ten years from the date of your sentencing. Generally speaking good time served is about 2/3 of the time sentenced to incarceration.

III. Did you have any criminal convictions in New York or any other state after the one you are trying to seal?

If you were convicted of any criminal offenses after the one you are trying to seal you are currently ineligible for sealing. In addition, if you have any criminal offenses currently pending while trying to seal old offenses you are also ineligible to seal.

In our next blog posts I will review the process of sealing under the new law. Specifically, what is required to have a criminal record sealed? Under the law what are the factors the Judge and District Attorney must review before making a decision to seal your past criminal convictions?

Lawrence Newman is a partner in Newman and Cyr which focuses on DWI and criminal defense in the Fingerlakes region of New York State. contact larry@ithacacdwi.com