Long Island criminal lawyer Scott J. Limmer

New York’s New Law on Sealing Criminal Records: How It Works, What It Covers

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The New York state legislature passed, as part of the 2017-2018 budget bill, a new section 160.59, titled “Sealing of Certain Convictions,” which amends the state’s criminal laws. Governor Andrew Cuomo signed it on April 10, 2017, and the new law will take effect 180 days later, on October 7, 2017, and will apply to criminal record searches from that date forward.

Once the new law is in effect, it will allow many people with criminal convictions dating back at least 10 years to apply to have the record of those convictions sealed (i.e. not open to the public generally, but only to specified persons, and only for uses allowed by the new law). The new law, backed by Gov. Cuomo, is intended to help persons with a record of criminal convictions gain wider access to opportunities for employment, housing and other benefits.

By the effective date, the chief administrator of New York will create a form for use by applicants seeking to have their old criminal convictions sealed. An applicant will not be required to use that form, but any application must include all the information that the form requires.

The applications will be submitted to the court in which a conviction was entered. The new law can be used to seal a single felony conviction, a felony and a misdemeanor, or two misdemeanors. If sealing is sought for two eligible crimes, the application must be submitted to the court which entered a felony conviction. If sealing is sought for two misdemeanor convictions, the application must go court where the more recent conviction occurred.

 

Who Can Apply, and For What Crimes?

The new sealing law covers convictions at least 10 years old. The time starts from the date of conviction, except for applications filed by a convict who is still incarcerated; in that case, the time starts from the date the applicant is released.

There are lifetime limits on the number of criminal convictions that can be sealed. Only a single felony conviction can be considered for possible sealing, although an application can be sought for both a felony and a misdemeanor, or for no more than two misdemeanors.

The conviction sealing process is not available for certain types of convictions. These include:

  • Crimes for which a conviction requires the defendant to register as a sex offender
  • Crimes for which the required 10 years has not already elapsed
  • Crimes exceeding the allowable maximum number (e.g. a second felony or a third misdemeanor)
  • Crimes exceeding the maximum allowable for defendants under judicial drug diversion programs (as specified in 160.58 of the New York penal code)

In addition, applicants will be ineligible if they:

  • Are currently facing any additional charge
  • Have been convicted of any crime after the date a conviction was entered for the last conviction for which sealing is requested
  • Fail to provide the court with the required sworn statement of their reason for seeking the sealing

A future article will describe what an application for sealing a conviction must include, how it will be processed, and the criteria upon which applications will be judged.

 

US Supreme Court

Appeals Court: Mugshots of Federal Defendants Need Not Be Released

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Reversing a decision from 1996, a federal appeals court in Cincinnati has ruled the Freedom of Information Act (FOIA) does not require the U.S. Marshals Service automatically to release mugshots taken when federal prisoners are booked. With all 16 judges participating in the July 14 decision, the 6th Circuit by a 9-7 vote held prisoners in fact have privacy interests in their booking photos, which must be balanced against the public interest in deciding whether the FOIA requires release of those photos.

The decision will likely have effects beyond the four states (Kentucky, Michigan, Ohio and Tennessee) within the 6th Circuit. For years after the 6th Circuit’s 1996 decision that prisoners have no FOIA privacy rights in their booking photos, the Marshals Service only released federal prisoners’ mugshots when the requester was from a state within the 6th Circuit.

Press outlets quickly learned when they wanted the mugshot for a federal inmate in the news, such as New York financial figure Bernard Madoff, they could get it by having a “straw man” in a 6th Circuit state request it. But, after two other federal circuits decided federal prisoners had privacy rights in their mugshots, the Marshals Service in 2012 began withholding mugshots from all FOIA requesters, including those in the 6th Circuit, citing an FOIA exemption for material compiled for law enforcement purposes which would bring “unwarranted invasion of personal privacy.”

Materials which have qualified for that exemption in earlier cases include rap sheets and grisly photos of crime victims. (State governments vary widely in how they treat mugshots: some make release automatic, while others restrict or forbid it.)

A wide range of media interests, including the New York Times, the Washington Post, the Associated Press, CNN, Bloomberg and others, supported the plaintiff in the latest case, the Detroit Free Press, which went to court in an unsuccessful effort to obtain booking photos for police officers in the state facing bribery and drug conspiracy charges.

In the new decision, Detroit Free Press v. Department of Justice, the appellate court majority overturned its 1996 decision (known as Free Press I, since it involved the same Detroit newspaper), saying the digital age gives greater permanence and wider access to mugshots and so “casts a long, damaging shadow” over the person depicted.

Twenty years ago, when the court found criminal defendants lacked a personal privacy interest in their mugshots, the majority opinion explained, such photos might appear for a short time in print or on TV, then disappear from view. Today, however, internet proliferation and even the appearance of websites devoted to archiving mugshots persuaded the majority that its former policy needed revision. Its new decision will require Justice to balance the interests of both the public and the individual in deciding whether a mugshot photo should be released.

The dissenting judges argued the policy change would let the Justice Department “selectively shield itself from public scrutiny,” harming the cause of open government and making it harder for the general public to learn how the criminal justice system is working.

While the issue seems settled, the controversy could be revived: the Detroit newspaper says it’s considering appealing the decision to the Supreme Court.

New York City and State Restrictions on Use of Criminal Records in Hiring

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On June 29, at a signing ceremony in City Hall, New York City mayor Bill DeBlasio hailed a new City Council law, the “Fair Chance Act,” as a way to require city-based employers with four or more workers to take into account job applicants’ qualifications, rather than to screen them out early in the hiring process on the basis of a past criminal record. The main City Council sponsor of the bill, which passed early in June on a 45-5 vote, called the newly signed measure, which takes effect on October 27, not merely an employment bill, but also both a public safety measure and a criminal justice bill as well.

Like similar measures enacted in some other states, including New Jersey, and a number of cities and counties, the new city law is a “ban the box” measure, barring public or private employers from asking job applicants whether they have a criminal history until after the employer has made them a conditional offer of employment, thus banning from employment applicants the box for applicants to check if they have an arrest or conviction record. The city’s new “ban the box” measure further bars employers from searching publicly available court records and document searches covered by the Fair Credit Reporting Act (a separate New York City law set to take effect in September generally bars employers from using credit checks in hiring).

The new city “ban the box” law mandates that employers document any need for early-stage access to applicants’ criminal records, and furnish written statements and back-up documents to would-be workers denied employment because of a criminal records background check. It preserves, however, existing laws requiring criminal records checks for some employers, such as law enforcement agencies, and those serving groups, such as children, the elderly and the disabled, particularly vulnerable to abuse.

Even before the newly signed measure, however, New York City had in place numerous restrictions on employer use of criminal records. In 2011, former mayor Bloomberg issued an executive order forbidding city agencies from asking job applicants about prior criminal convictions during an initial interview or on any preliminary work application. In addition, inquiries in later interviews can only ask about pending charges, and unsealed misdemeanor and felony convictions.

New York state corrections law contains other restrictions. Article 23-A prohibits some criminal background questions by public employers and private employers with a total four or more workers, and generally forbids denial of licenses or employment on the grounds of one or more previous criminal convictions. The law expressly identifies New York public policy as encouraging employment and licensure of persons with previous criminal convictions.

Under this provision of state corrections law, a prior criminal conviction can justify denial of employment or licensure only if there is “a direct relationship” between a prior offense and the specific employment or license, or if it would pose an “unreasonable risk” to property or the safety of specific persons or the general public. The protections in Article 23-A do not apply to positions in law enforcement, those in which another law bars a license or job to ex-offenders, or to applicants who made intentional misstatements in their applications.

Under current law, a job applicant in the state of New York who’s denied employment or a license has 30 days thereafter to request a written statement of the reasons for the action. And both city and state job bias laws already outlaw employer discrimination based on previous convictions against job applicants based, unless a direct relationship exists between the former offense and the particular job, or hiring the applicant would present an unreasonable risk to property, specific persons or the general public.

Options for Dealing with a Criminal Record: Expungement and Sealing in New York

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Having an arrest or criminal conviction record can hurt your future in many ways: blocking your ability to find employment, or hold certain professional licenses, to mention just a few. New York law provides a few ways to wipe out criminal records or shield them from public view.

About 40 states have procedures for expunging – that is, wiping out – criminal records, but New York does not allow expungement — complete destruction — of records for the most serious criminal charges — misdemeanors (punishable by up to a year in jail) or felonies (punishable by longer prison terms) committed by an adult, if a conviction resulted.

It does not matter what, if any, sentence was handed down following conviction — a jail sentence, probation or a conditional discharge. The exception is for youthful offenders, meaning those under the age of 19 at the time the crime was committed, for whom there are special procedures for expunging some criminal records.

For adults, there is a class of very minor offenses, known as violations, which courts generally wipe out automatically after the passage of a certain amount of time. These include run-of-the-mill traffic rule infractions, or other minor offenses, such as disorderly conduct.

A more widely available alternative to expungement is to seal criminal records. Unlike expungement, this does not obliterate all records of a criminal arrest or conviction, but instead restricts who can access them. The sealing may not be permanent: in some cases, orders to seal criminal court records can be reversed, or sealed records can be temporarily re-opened if a court orders that.

The records from your criminal case can be sealed if it was dismissed outright or dismissed after adjournment in contemplation of dismissal (a commonly used court administrative process), if prosecutors refused to go forward with it, or if you won an acquittal. New York law also has special provisions for sealing records in cases involving some drug offenses, for persons who successfully complete a treatment program and any jail sentence, if the court imposed one.