The primary record sealing law in New York is contained in N.Y. Crim. Proc. Law § 160.59. It addresses the sealing of adult conviction records in New York. The law went into effect on October 7, 2017, and is the broadest sealing bill ever passed in New York State.
The law allows individuals with up to two convictions, only one of which may be a felony, to seal the conviction records for all crimes other than sex offenses, class A felonies, and violent felonies after a 10-year waiting period.
Below is a complete guide to sealing criminal records in New York under N.Y. Crim. Proc. Law § 160.59 prepared by the New York sealing lawyers at Katherine O’Brien Law, LLC. This guide covers eligibility for sealing, how to file a motion for sealing, and addresses some of the frequently asked questions that the New York sealing lawyers at Katherine O’Brien Law receive about New York record sealing.
If you were convicted of felony and/or misdemeanor convictions, you may be eligible to file a motion to seal those convictions under N.Y. Crim. Proc. Law § 160.59.
In general, you are eligible so long as:
- You have no more than 2 misdemeanor convictions or no more than 1 felony conviction and 1 misdemeanor conviction;
- Youthful offender adjudications, juvenile delinquency adjudications, and non-criminal violations are not criminal convictions.
- Likewise, expunged marijuana offenses do not count toward your total number of convictions. Instead, they are treated as if they never occurred.
- If you have more than two convictions, you may still be eligible if your convictions are related to the same one or two incidents. In other words, if you were charged with and convicted of multiple crimes stemming from one incident, the court can treat the multiple convictions as one for purposes of sealing so long as the convictions were “committed as part of the same criminal transaction.”
- It has been at least 10 years since the date you were sentenced for your most recent conviction or were release from jail/prison, whichever is later;
- Any time you spend on probation or parole counts toward the ten years. However, if you served time in jail or prison after you were sentenced, that time does not count. So, for example, if your conviction was 12 years ago, and you served 3 years in state prison, that is only 9 years, and you are not eligible for sealing until next year.
- You have no pending criminal cases;
- You are not required to register as a sex offender under New York law; and
- You are not seeking to expunge a conviction that is ineligible for sealing.
Regarding which crimes are eligible to be sealed under this law, all misdemeanor convictions, other than those that require registration as a sex offender, are eligible for sealing. Driving while intoxicated offenses are eligible, except for violations of Driving While Ability Impaired (DWAI), which is a violation, not a criminal offense.
Moreover, most felonies are eligible, except for:
- Sex offenses listed in N.Y. Penal Law § 130 (sex offenses) and N.Y. Penal Law § 263 (sexual performance by a child);
- Any other offense requiring sex offender registration;
- Homicide offenses listed in N.Y. Penal Law § 125 (homicide, abortion, and related crimes);
- All Class A felonies;
- All “violent felonies” as defined in N.Y. Penal Law § 70.02; and
- Felony conspiracy to commit one of the above felonies.
For a complete list of ineligible felonies, click here.**
**Please note that even if you have been convicted of an ineligible felony, you may still be able to seal other eligible offenses if you meet all other requirements listed above in 1-5.
You can take a Sealing Eligibility Test here. Please note that this test is simplified and should not be relied on exclusively to determine eligibility. It’s always best to consult a sealing lawyer.
HOW TO FILE
Applying to seal your record is not as simple as filling out a form. You must file a “Notice of Motion and Affidavit in Support of Sealing Pursuant to CPL § 160.59” with the court in which you were convicted. Instructions are provided on nycourts.gov.
It is important to understand that record sealing for convictions is not automatic or guaranteed. You must file a motion with the court and provide a compelling argument, including documentary evidence, to convince the court that you deserve sealing. The decision to seal is within the Judge’s discretion, but the District Attorney will be notified of your motion and can file an objection to sealing. Your case would then proceed to a hearing on the issue of whether or not your records should be sealed.
Sealing is a judicial process, and we strongly recommend the advice and representation of an experienced New York sealing lawyer. A New York sealing attorney will ensure your application is filed accurately and persuasively. Moreover, should your case require a hearing, you will want a seasoned sealing lawyer to advocate for you.
1. Request a Criminal Certificate of Disposition from the court.
Your sealing motion must include the original Certificate of Disposition for each offense you attempt to seal. Thus, the first step is to obtain a Certificate of Disposition for each case.
A Certificate of Disposition is the official court document affixed with the Court Seal that provides all of the case details about your criminal charge, including the crime you were charged with, what you were convicted of, the date of conviction, and the sentence you received.
You must fill out a Criminal Certificate of Disposition Request Form for each case. You can use the Court Locator tool on the NY Courts website to obtain each court’s contact information by selecting the County and Court Type in the dropdown boxes.
2. Complete and File the Sealing Application.
Once you receive the Certificate of Disposition, complete the “Notice of Motion and Affidavit in Support of Sealing Pursuant to CPL § 160.59.” You will need to sign this form in the presence of a notary public.
In addition to filing the completed sealing application form and the original Certificate of Disposition(s), you will also need to include a sworn statement of reasons why sealing should be granted. In support of this, you should make sure to include evidence of rehabilitation, such as character reference letters, verification of employment, verification of education, proof of volunteer or charitable work, certificates of completion of substance abuse programs, etc.
See the FAQs below for more information about how to prove you have been rehabilitated.
3. Serve the District Attorney’s Office.
You must serve the District Attorney with your sealing motion. To do so, make a copy of the Notice of Motion and Affidavit in Support and serve them on the relevant District Attorney’s Office. Please note that if you are asking the court to seal more than one conviction and the convictions occurred in different counties, then you need to serve the District Attorney in each county. Certified mail is recommended so that you have proof of mailing.
4. Fill Out An Affidavit of Service.
After you serve a copy of the application on the District Attorney’s Office, you must fill out the Affidavit of Service Form and sign it in front of a notary public. If more than one District Attorney was served, you will need to fill out a separate Affidavit of Service for each District Attorney.
5. File the Sealing Application.
Make a complete copy of all documents for your records. Then, file the original sealing application, including the Affidavit of Service, Certificate of Disposition(s), and any other supporting documents with the court. Use the Court Locator Tool to find the court’s contact information.
If you only apply to seal one conviction, you should file in the court where you were sentenced. If you are applying to seal two convictions, your application should be filed in the court where the most serious conviction was entered. If both cases involved offenses of the same class, the application should be filed in the court where the most recent conviction was entered.
Your application will be assigned to the sentencing judge if sealing is sought for a single conviction and to the county/supreme court otherwise.
After you file your Motion to Seal Criminal Records, the prosecutor’s office has 45 days to object to your application. The prosecutor can object to any motion to seal. In general, those with minor or nonviolent offenses have the best chance to have their motion approved without an objection from the prosecutor. The more serious the offense, the more likely that the state will object to your motion to seal.
Once you file a motion for sealing, to determine your eligibility for sealing, the court will request and review your fingerprint-based criminal history from the N.Y. division of criminal justice and/or the FBI, which will include any suppressed or sealed information as well as out-of-state arrest information.
6. Attend Court Hearing.
If the prosecutor objects for any reason, your motion will be scheduled for a hearing before the judge. At the hearing, the judge will consider your criminal history and your character and conduct since the conviction, the nature of the offense, the need for the availability of your records, and any victim statements.
In determining whether or not to grant your sealing application, the court can consider many factors, including:
- How much time has passed since your conviction(s);
- Circumstances and seriousness of the conviction(s), including the original charge and whether that offense is eligible for sealing;
- The defendant’s character;
- Any measures taken toward rehabilitation (completion of programs, work, school, volunteer work, etc.);
- Any statements made by the victim of the offense to which you are seeking sealing;
- How sealing will affect your rehabilitation and successful reentry into society; and
- How sealing could impact public safety and the public’s confidence and respect for the law.
The court wants to see that the defendant has taken steps toward improving his or her life before granting a motion for sealing, for example, by going to school, showing steady employment, completing a treatment program, and doing volunteer work.
7. Confirm Sealing.
The NYS Division of Criminal Justice Services sometimes fails to seal convictions properly. Once the court approves your sealing application, you will receive a signed Seal Order. To ensure that your criminal history has been sealed, fill out a Request for Seal Verification Form and mail it, together with a copy of the signed Seal Order, to the NYS Division of Criminal Justice Services.
You will then receive a letter from the NYS Division of Criminal Justice confirming that your sealing was correctly processed and that the case will not appear on rap sheets provided to outside agencies. The sealed case will still appear on a rap sheet you order for yourself and will still be visible to law enforcement.
What Specific Records Are Sealed under N.Y. Crim. Proc. Law § 160.59?
If sealing is granted, all “official records and papers relating to the arrests, prosecutions, and convictions, including all duplicates and copies thereof, on the file with the division of criminal justice services or any court shall be sealed and not made available to any person or public or private agency.” N.Y. Crim. Proc. Law § 160.59(8). Law enforcement fingerprint records are not affected by sealing orders. See N.Y. Crim. Proc. Law § 160.59(8).
Who Can See Sealed Records under N.Y. Crim. Proc. Law § 160.59?
Members of the public – including employers or housing agencies – will not be able to see a conviction once it has been sealed. After a criminal offense is sealed, the record can only be viewed by:
- You or your authorized representative (with proper identification);
- “Qualified agencies” (as defined in Exec. Law § 835(9)) acting within the scope of their law enforcement duties, including courts in the unified court system, probation departments, sheriffs’ offices, district attorneys’ offices, the office of professional medical conduct, the state department of correction, etc.;
- Federal, state, and local law enforcement agencies acting within the scope of their law enforcement duties;
- Any agency that issues firearm licenses or gun permits; and
- Employers if you apply for a job as a police officer or a peace officer.
Sealed convictions remain “convictions” for sentenced enhancement or where the fact of a prior conviction is an element of the offense charged. See N.Y. Crim. Proc. Law § 160.59(10).
What is the difference between sealing and expungement?
With an expungement, records are completely destroyed. Except for some marijuana offenses, New York law does not provide for the “expungement” of criminal records. Instead, New York uses a process known as “sealing.” Under New York’s sealing system, the record still exists but is hidden from the public.
The sealing process offers many benefits. It means that, in most situations, employers and others running background checks on you will not be able to view a record of your offenses. Thus, they will not show up in most background checks.
How Can I Prove to the Court That I Have Been Rehabilitated?
You should gather details about your accomplishments and positive experiences since your most recent conviction to prove rehabilitation.
You must include evidence or proof of rehabilitation. You can submit documentary evidence such as:
- A Certificate of Relief from Civil Disabilities;
- Proof of employment, community service, or volunteer or charity work;
- School transcripts;
- A letter from a teacher or other school administrator stating things such as you had excellent attendance, grades, and/or motivation to learn;
- Proof that you completed job training;
- Letters from your probation or parole officer verifying negative drug tests and compliance with all requirements of your probation/parole;
- Letters of recommendation from employers, friends, family, community leaders, charitable organizations, etc.;
- Certificates of successful completion of drug or alcohol treatment programs;
- Proof that you completed mental health or other counseling or social service programs.
You can read more about How to Gather Evidence of Rehabilitation here.
For more information about what to include in your letters of recommendation, read Crafting an Effective Letter of Reference.
In addition to submitting documentary evidence, you can also write your own personal statement to show rehabilitation. This statement is your opportunity to tell the court how you have changed since the offense. For more information about what to include in your personal statement, read Crafting an Effective Letter of Personal Statement.
Can an Employer Use a Sealed Offense as a Reason Not to Hire Someone?
The New York State Human Rights Law, N.Y. Executive Law § 296(16), was amended at the same time N.Y. Crim. Proc. Law § 160.59 was enacted, prohibiting public and private employers as well as licensing authorities from asking about or taking adverse action, such as denying employment or licensure) due to sealed convictions – unless the individual is applying to become a police officer. Moreover, if employers ask about applicants’ criminal histories on job applications, they should specify that the question does not include sealed convictions.
If an employer or licensing agency asks you if you have a criminal conviction, New York law permits you to answer “no” if your conviction has been sealed.
Can I Vote Once My Record Is Sealed?
Yes, and you were probably eligible to vote before you sealed your record. In New York, you can vote with a felony conviction unless you are currently incarcerated on a felony sentence. Moreover, as of May 4, 2021, New Yorkers on parole or post-release supervision can register to vote as soon as they are released from incarceration. Misdemeanors and violation convictions do not affect your right to vote in New York, even if you are in jail or on probation.
Experienced New York Record Sealing Lawyers
As you can see, filing a motion for sealing in New York is a complicated process. Thus, if you can afford to do so, we strongly recommend that you retain an experienced New York record-sealing lawyer to assist you. The New York sealing attorneys at Katherine O’Brien Law can help.
Book a free consultation today.