NEW YORK SEALING AND EXPUNGEMENT

You may have pleaded guilty to a crime thinking that you would serve your sentence (ie., jail, probation, conditional discharge, payment of fines), and then go about living your life without any problems. When you pleaded guilty or were sentenced, the Judge probably told you about all the details of your sentence, such as the amount of jail time you would have to serve, the length of your probation, and the amount of any fines and surcharges. But it’s likely the Judge did not tell you about the many “collateral consequences” of your criminal conviction that will follow you around and limit your opportunities for the rest of your life. For example, you may have applied for a job, and after a background check was done, you were told that you could not have the job because of your conviction. Or you may have applied to live in public housing, only to be told that you, and your family, could not live there because of your old conviction. You may have applied for one of many professional licenses, such as to be a Certified Nurses Aide, or Licensed Clinical Social Worker, only to be told that because of your past conviction you would not be given that license. You may have applied for financing to buy a home or start a business, but were denied due to your old conviction. You may have tried to purchase a home in a condominium community, or cooperative apartment building, only to be denied because of your old conviction. The list of “collateral consequences” goes on and on. 

So what can be done to put some of these “collateral consequences” behind you? At Bernfeld, DeMatteo & Bernfeld, LLP, we specialize in helping our clients minimize the “collateral consequences” that often turn a conviction into a life of lost opportunity. We

accomplish this by using New York’s new Sealing Statute (CPL §160.59) to have your old conviction(s) sealed so that they will not show up on most background checks. We also seek Certificates of Relief from Civil Disabilities and Certificates of Good Conduct, which give you back some of the rights that you lose with a criminal conviction, such as the right to obtain a firearm, and to apply for a variety of professional licenses. (Link to Certificates of Relief from Civil Disabilities Page). 

SEALING AN OLD CONVICTION UNDER §160.59 OF NEW YORK’S CRIMINAL PROCEDURE LAW

You don’t have to go through the rest of your life with that criminal conviction on display to the entire world. In New York, a conviction that’s over 10 years old can be sealed. Once it is sealed, it cannot be seen by the general public, which includes employers, most New York State professional licencing boards, landlords, banks, friends and family.  

What is sealing?  

Sealing is when the court system closes off the general public, and several NYS licensing boards,  from seeing or learning anything about your prior conviction. To get a case sealed, a motion (written application) has to be made to the Court in which you were convicted.  

How can sealing help me?  

Once a conviction is sealed, New York law says that employers cannot discriminate against you because of the prior conviction. In fact employers cannot ask about a sealed conviction and, for most employers and licensing authorities, you are under no obligation to disclose a sealed conviction. 

If applying for a non-law enforcement job where there is a background check, a sealed conviction will not turn up. That means there is a better chance of getting that job.  

If applying for any kind of financing, and there is a background check, a sealed conviction will not turn up, meaning there is a better chance of getting financing.  

If coaching a child’s sports team, and there is a background check, a sealed conviction will not turn up, and coaching a child’s team can continue.

If employed as a financial professional licensed by FINRA, once a conviction is sealed, under certain circumstances it can be removed from the BrokerCheck profile. Future employers, competitors and customers will not learn of the prior conviction. 

Once a conviction is sealed, there is the peace of mind knowing that others, whether family, friends or business associates, cannot learn about something embarrassing that happened years ago. Am I eligible for Sealing? The best way to find out if you are eligible for sealing is to schedule a free consultation with an attorney experienced with sealing. But here are the basic requirements. 

You are most likely eligible for sealing if:

1. You have no more than two criminal convictions in your past. One of those convictions can be a felony, as long it is not a “violent felony” under NY Law , or a conviction for which you had to register as a sex offender. It also cannot be a Class A or Class AII felony. If you have two felonies of any type, you will not be eligible to have anything sealed. If you have more than two convictions of any type, such as three misdemeanour convictions, you will not be eligible for sealing of any kind. Convictions for violations such as “Disorderly Conduct” do not count because they are not criminal convictions. 
2. You have no pending cases at the time that your submit your sealing motion. 3. Ten years must have passed with no new convictions since the date of sentence, or the date that you were released from prison.  
3. You can demonstrate that sealing your conviction will not pose a risk to public safety.  5. You can demonstrate that sealing your conviction will contribute to your rehabilitation and enhance your opportunities. 

How will Bernfeld, DeMatteo & Bernfeld, LLP prepare my sealing motion? 

Once we determine that you are eligible for sealing, Joseph DeMatteo, an experienced sealing attorney, will spend a good deal of time talking to you to learn about your conviction record. Joe will delve

into your background to understand what led to your prior offense, and to present it in the most positive light possible. Joe will also talk to you about what has happened since your conviction, focussing on your struggles, accomplishments, rehabilitation, education, family circumstances and goals for the future. Joe will draft a written motion that will tell your story to the Court in the most compassionate and persuasive manner possible. Joe will be there to fight for you in the event that the prosecutor thinks that your case shouldn’t be sealed.  

At Bernfeld, DeMatteo & Bernfeld, we have successfully obtained the Sealing of many old convictions, giving our clients the opportunity to improve their lives. 

 EXPUNGEMENT OF CRIMINAL CONVICTIONS IN NEW YORK As a general matter, New York does not expunge criminal convictions, expect for certain marijuana cases. In other words, for the vast majority of offenses, an old conviction cannot be vacated and wiped off your record, unless you attack the underlying evidentiary basis of the conviction in a motion under Article 440 of the Criminal Procedure Law.  WHAT IF I’M NOT ELIGIBLE FOR SEALING? 

There are a long list of reasons why you might not be eligible for Sealing under CPL§160.59. Ten years may not have passed. You might have too many convictions. The conviction may be classified as a “violent felony.” If that is the case, obtaining a Certificate of relief from Civil Disabilities or a Certificate of Good Conduct, might help you in much the same way as Sealing would. Please see our page on New York Certificates of Relief from Civil Disabilities.