Practical ideas, and information about defending New York DWI, criminal charges, and traffic violations. Winning strategies from an Ithaca DWI lawyer's vantage point.
The new New York Sealing law under CPL 160.59 is wonderful and great. It offers many second chances for a fresh start and a new beginning BUT you have qualify. After taking call after call and email upon email many unfortunately don't qualify. Some have even said other law firms and their paralegals said sure you qualify but this just wasn't true. The first hurdle is always eligibility.
The New Law Under CPL 160.59 for Sealing is Specific
If you don't meet all the criteria for eligibility you don't get to use the law at all. Most qualify for their particular crime, NO sexual based crime and NO violent crime. Most qualify for time, more than 10 years.
The number one reason for disqualification is having more than two criminal convictions anyplace (any state) and within your lifetime.
The new New York sealing is great, and it offers second chances BUT it's not guaranteed. The prosecutor can contest (oppose) the sealing of any criminal convictions. A recent case shows just what mindset the district attorney can bring to the table.
The Case is People v. Jaime S. Case Number 4517/2003 just decided January 31, 2018. In the case the prosecutor really had two arguments against sealing the past felony convictions:
1. You already have a job, you don't need or require a better job.
2. Future employers should know about you (your past felony criminal convictions).
The judge disagreed entirely. Permitting this person to move forward in their professional life.
The case was about an IT (information technology) officer who wanted to move forward in his professional life. He had two felonies convictions involving computers from over 15 years prior. Job offers were rescinded over and over when it came time to do the background checks even though he was highly qualified and skilled with computers. He wanted these high paying and more challenging positions BUT the old felony convictions were holding him back.
He applied under New York Criminal Procedure Law 160.59 to have his convictions sealed so he could move on with his life and the prosecutor said no. Even though he paid his dues, did probation for years, was released early from probation, paid thousands in fines, and lived a law abiding life for over a decade the prosecutor felt he should always have the curse of old convictions.
The judge disagreed with the district attorney and allowed sealing. There was no dispute this was a "productive, stable, and successful member of society." But the prosecutor said that "societal utility" would be better served by keeping his convictions unsealed.
As the judge makes clear, the new sealing law is to maximize the chances of this individual and remove any blocks to his future.
The broader question then becomes, as the People implicitly argue, whether there is reason to deny him relief because the impetus and underlying rationale for the statute was the desire to help those whose criminal convictions prevented them from fully integrating into society, and not someone in defendant’s position. There has been increased discussion in recent years regarding the collateral consequences of a criminal conviction. One of the more serious of these isthe limited access to the labor market which a conviction brings (Mackenzie J. Yael, Expungement Law: An Extraordinary Remedy for an Extraordinary Harm, 25 Geo J on Poverty Law and Policy 169 [2017]).
The New York State Legislature enacted CPL 160.59 in conjunction with an amendment of the Penal Law which raised the age of criminal responsibility from 16 to 18. Concern about the collateral consequences of a criminal record was a core concern of the proponents of the bill (id.). The legislature made sure that a court reviewing a sealing application would consider its concern by requiring it to weigh “the impact of sealing the defendant’s record upon his or her rehabilitation and upon his or her successful and productive reentry and reentry into society (CPL 160.59 [7][f]). It is possible to derive from factor (7)(f), as the People do, the conclusion that if a person is already well integrated into society, there is less need to seal his or her record.
It cannot be denied that the defendant is not among those whom the bill was primarily intended to benefit. He has had no difficulty achieving meaningful employment despite his criminal record, and has reached a comfortable economic station in life. But although he seems integrated into society and economically secure at present, there is no guarantee that such will always be the case. He seemed secure after his conviction but his status was upended in 2010 when the company that he was working for was purchased by another. The new regime offered him a position but changed its mind after conducting a background check. He suffered from anxiety and depression, and was forced to live on his savings until he found a new job. Given his record, it was not a foregone conclusion that anyone would hire him. Circumstances change, and there is no way to be sure that anyone is permanently secure in life. Whether or not he ever tries to advance himself, his conviction may yet again undo him. It makes little sense to deny the defendant relief under the statute until such time as his life takes a turn for the worse.
Granting his application now may ensure that day never comes.
I can think of at least three primary reasons why someone would want their old criminal convictions sealed. On the other hand I can also think why someone may not care or see the point of sealing their old criminal history.
Why would someone want their history of criminal activity sealed from public disclosure? Why would someone not care if their criminal history was found out?
For over a decade New York has been ratcheting up penalties for DWI. In 2010 our state was one of the first to make ignition interlock devices a must for all first time drunk driving convictions. Then law went from a 6 month interlock to a 12 month interlock. Alcohol evaluations and treatment are now mandatory for those convicted twice within 25 years.
Then in 2012 the DMV began applying a lifetime look back for problem drivers. Those drivers with even a 25 year old conviction were facing strict administrative license penalties. The purpose of all this new legislation was to severely limit or to revoke the driving privileges of those convicted of DWI offense, accidents, or multiple violations.
New York's recently passed sealing law, CPL section 160.59 is a sharp departure from this trend for harsher punishment. The law's primary focus is to shield criminal convictions on rap sheets from public disclosure.
Can you get your misdemeanor DWI convictions sealed under the new sealing law? Can you get your felony DWI conviction sealed under the new sealing law?
Texas just passed a criminal record sealing law similar to New York's. They call their law the "Second Chance" bill. I kinda like that because imho everyone deserves a second chance.
Up until October 2017 New York offered nothing to clear records for those with past DWI criminal convictions. The only sealing of records was for non-criminal violations, and for special case situations for drug crimes with proof of rehabilitation.
Often a DWI charge would effect your future ability to gain employment, obtain a state occupational license, or even get an internship. Up until this year New York had no expungement, and no sealing for DWI criminal convictions. We don't have expungement but in October 1, 2017 we do have a close second, sealing of your past DWI.
New York's new broad record sealing law will enable you to seal a misdemeanor and a felony DWI. The new sealing statute also modifies Executive Law so that you do not have to disclose your DWI when applying for an employment position or an occupational license.
DWI non-disclosure is now available in New York State. Here's all you need to know about New York Sealing Law 160.59.
Motion to Seal Criminal Record Which New York Court?
New York will now have a sealing law in place for criminal misdemeanors and felonies beginning in October of 2017. Look at our previous blog post to see if your convictions qualify and when you can proceed to seal them. The new sealing law under New York CPL section 160.59 permits up to two criminal convictions to be sealed.
What if you have a misdemeanor conviction located in one court, and a felony conviction in yet another court and yet another county, which one do you work on to seal both? How do you get to seal both criminal convictions? What if you have two criminal convictions that are misdemeanors in two different courts? How is application made to seal both misdemeanor convictions?
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.
