Automatic sealing of convictions

§ 160.57 Automatic sealing of convictions.\n 1. Convictions for certain traffic infractions or a crime defined in\nthe laws of this state shall be sealed in accordance with this section\nas follows:\n (a) Convictions for subdivision one of section eleven hundred\nninety-two of the vehicle and traffic law shall be sealed after three\nyears.\n (b) Criminal convictions shall be sealed upon satisfaction of the\nfollowing conditions:\n (i) for a misdemeanor conviction, at least three years have passed\nfrom the defendant's release from incarceration or the imposition of\nsentence if there was no sentence of incarceration. If the defendant is\nsubsequently convicted of a crime before a prior conviction is sealed\npursuant to this section, the calculation of time for such prior\nconviction shall start upon the same date as the time calculation starts\nfor the subsequent criminal conviction;\n (ii) for a felony conviction, at least eight years have passed from\nthe date the defendant was last released from incarceration for the\nsentence of the conviction eligible for sealing or from the imposition\nof sentence if there was no sentence of incarceration. A defendant's\ndetention for an alleged violation of parole or post-release supervision\nshall not interfere with the time calculation prescribed herein unless\nand until supervision is revoked resulting in the defendant's\nreincarceration. If the defendant is subsequently convicted of a crime\nbefore a prior conviction is sealed pursuant to this section, the\ncalculation of time for such prior conviction shall start upon the same\ndate as the time calculation starts for the subsequent criminal\nconviction;\n (iii) the defendant does not have a subsequent criminal charge pending\nin this state;\n (iv) the defendant is not currently under the supervision of any\nprobation or parole department for the conviction eligible for sealing;\n (v) the conviction is not for an offense defined as a sex offense or\nsexually violent offense under section one hundred sixty-eight-a of the\ncorrection law;\n (vi) the conviction is not for a class A felony offense defined in the\npenal law, other than class A felony offenses defined in article two\nhundred twenty of the penal law;\n (vii) the defendant is a natural person;\n (viii) the defendant does not have a subsequent felony charge pending\nin another jurisdiction that is not a felony charge related to\nreproductive or gender affirming care or the possession of cannabis\nwhich would not constitute a felony in New York. This subparagraph shall\napply if and when appropriate federal authorities grant access to\nrecords necessary to query to effectuate the purposes of this\nsubparagraph in an automated manner; and\n (ix) the defendant does not have a subsequent felony conviction in\nanother jurisdiction in the preceding eight years that is not a felony\nconviction related to reproductive or gender affirming care or the\npossession of cannabis which would not constitute a felony in New York.\nThis subparagraph shall apply if and when appropriate federal\nauthorities grant access to records necessary to query to effectuate the\npurposes of this subparagraph in an automated manner.\n (c) If, after the applicable period of time for the sealing of a\nconviction has been satisfied, the conviction remains ineligible for\nsealing pursuant to subparagraphs (iii), (iv), (viii) or (ix) of\nparagraph (b) of this subdivision, the office of court administration\nshall subsequently check for eligibility no less than quarterly and upon\nsubsequent checks, or the receipt of a form in accordance with paragraph\n(dd) of subdivision two of section two hundred twelve of the judiciary\nlaw, the conviction shall be sealed if all other conditions for sealing\nunder this section are satisfied.\n (d) In accordance with all other applicable laws, rules, and\nregulations regarding the scope, access, use, disclosure,\nconfidentiality and retention of criminal history information, records\nof convictions sealed pursuant to this section including photographs,\nphotographic plates or proofs, palmprints, fingerprints or retina scans\nshall not be accessed by or made available to any person or public or\nprivate agency, except for:\n (i) the defendant and such defendant's counsel;\n (ii) any court, defense counsel or prosecutor for the purposes of a\npending criminal proceeding or proceedings brought in a criminal court\npursuant to article six-C of the correction law;\n (iii) qualified agencies, as defined in subdivision nine of section\neight hundred thirty-five of the executive law, federal and state law\nenforcement agencies, and interstate and international authorities as\ndefined in subdivision three of section two of the public authorities\nlaw, when acting within the scope of their law enforcement duties;\n (iv) the court, prosecutor, and defense counsel if the defendant\nbecomes a witness in a criminal proceeding;\n (v) the court and parties if the defendant becomes a witness or party\nin a civil proceeding;\n (vi) when an individual is a defendant in a criminal proceeding or\nproceedings brought in a criminal court pursuant to article six-C of the\ncorrection law and the sealed records of conviction of a third party are\nintegral to their defense. In such instances, use of sealed records of\nconviction shall be requested upon ex parte motion in any superior\ncourt, or in any district court, city court or the criminal court of the\ncity of New York provided that such court is where the action is\npending. The applicant must demonstrate to the satisfaction of the court\nthat the records will be used for the purpose of this subparagraph;\n (vii) individuals or entities that are required by a local law in\neffect one year prior to the chapter of the laws of two thousand\ntwenty-three that added this section, a state law, or a federal law or\nregulation to request and receive a fingerprint-based check of criminal\nhistory information. Nothing herein shall prohibit the commissioner of\neducation or the office of school personnel review and accountability\nfrom receiving or using convictions sealed pursuant to this section for\npurposes of subdivisions seven, seven-a and seven-b of section three\nhundred five of the education law;\n (viii) individuals or entities that are authorized by a local law in\neffect one year prior to the chapter of the laws of two thousand\ntwenty-three that added this section, a state law, or a federal law or\nregulation to request and receive a fingerprint-based check of criminal\nhistory information in relation to the individual's fitness to have\nresponsibility for the safety and well-being of children or adolescents,\nelderly individuals, individuals with disabilities, or otherwise\nvulnerable populations. The division of criminal justice services shall\nmaintain an up to date list of citations of the local, state, and\nfederal statutes or federal regulations authorizing the access described\nherein;\n (ix) any prospective employer of a police officer or peace officer as\nthose terms are defined in subdivisions thirty-three and thirty-four of\nsection 1.20 of this chapter, in relation to an application for\nemployment as a police officer or peace officer, provided, however, that\nevery person who is an applicant shall be furnished with a copy of all\nrecords obtained under this paragraph and afforded an opportunity to\nmake an explanation thereto;\n (x) any federal, state or local officer or agency with responsibility\nfor the issuance of licenses to possess a firearm, rifle or shotgun or\nwith responsibility for conducting background checks before transfer or\nsale of a firearm or explosive, when the officer or agency is acting\npursuant to such responsibility. This includes the criminal justice\ninformation services division of the federal bureau of investigation,\nfor the purposes of responding to queries to the national instant\nbackground check system regarding attempts to purchase or otherwise take\npossession of firearms, rifles or shotguns, as defined in 18 U.S.C. §\n921 (A)(3);\n (xi) for the purposes of civilian investigation or evaluation of a\ncivilian complaint or civil action concerning law enforcement or\nprosecution actions, upon ex parte motion in any superior court, or in\nany district court, city court or the criminal court of the city of New\nYork provided that such court sealed the record; the applicant must\ndemonstrate to the satisfaction of the court that the records will be\nused for the purposes of this subparagraph;\n (xii) for information provided to an individual or entity pursuant to\nparagraph (e) of subdivision four of section eight hundred thirty-seven\nof the executive law or for bona fide research purposes provided all\nidentifying information is removed;\n (xiii) when an individual seeks to avail themselves of a public\nprogram or benefit, including but not limited to an immigration benefit,\nfor which the sealed records of conviction of a third party are\notherwise authorized by law or legal process to be disclosed in\nfurtherance of their application for such program or benefit. In such\ninstances, the individual or their attorney shall request the use of\nsealed records pursuant to a form as prescribed by the chief\nadministrator of the courts pursuant to paragraph (ee) of subdivision\ntwo of section two hundred twelve of the judiciary law;\n (xiv) for the purpose of collection of restitution, reparation, fines,\nsurcharges, or fees imposed. In such instances, use of sealed records\nshall be requested upon ex parte motion in any superior court, or in any\ndistrict court, city court, town court, village court, or criminal court\nof the city of New York provided that such court is where the action is\npending. The applicant must demonstrate to the satisfaction of the court\nthat the records will be used for the purpose of this subparagraph;\n (xv) transportation network companies that are required or authorized\nby state law to request criminal history information pursuant to section\nsixteen hundred ninety-nine of the vehicle and traffic law;\n (xvi) the state education department for the purposes of investigating\nprofessional misconduct as defined in subparagraph (i) of paragraph (a)\nof subdivision five of section sixty-five hundred nine of the education\nlaw, consideration of restoration of a professional license pursuant to\nsection sixty-five hundred eleven of the education law, or\ndeterminations for issuing a license to practice a profession or issuing\ncertificates and privileges for which prior licensure is required, for\nthe professions under articles one hundred thirty-one, one hundred\nthirty-one-b, one hundred thirty-two, one hundred thirty-three, one\nhundred thirty-four, one hundred thirty-five, one hundred thirty-six,\none hundred thirty-seven, one hundred thirty-nine, one hundred forty,\none hundred forty-one, one hundred forty-three, one hundred forty-four,\none hundred forty-five, one hundred forty-seven, one hundred forty-nine,\none hundred fifty-three, one hundred fifty-four, one hundred fifty-five,\none hundred fifty-six, one hundred fifty-seven, one hundred fifty-nine,\none hundred sixty, one hundred sixty-two, one hundred sixty-three, one\nhundred sixty-four, and one hundred sixty-seven as such professions are\ndefined in title eight of the education law, provided that the state\neducation department certifies to the division of criminal justice\nservices that it is investigating an individual licensed to practice a\nprofession pursuant to article one hundred thirty of the education law\nfor professional misconduct as defined in paragraph (a) of subdivision\nfive of section sixty-five hundred nine of the education law,\nconsidering restoration of a professional license pursuant to section\nsixty-five hundred eleven of the education law, or making a\ndetermination for issuing a license to practice a profession or issuing\ncertificates and privileges for which prior licensure is required as\nappropriate. Provided, further, that the board of regents may consider\nany prior conviction that formed the basis of a determination of the\nboard of regents in a disciplinary proceeding pursuant to section\nsixty-five hundred ten of the education law and the rules and\nregulations promulgated pursuant thereto in an application for\nreconsideration, even if such conviction later becomes sealed pursuant\nto this section; and\n (xvii) the office of mental health and the office for people with\ndevelopmental disabilities, where such agencies are statutorily\nauthorized to receive such information, provided further, that such\ninformation may also be made available for case review under section\n10.05 of the mental hygiene law, as well as to providers licensed,\nfunded, designated, certified or otherwise authorized by the office of\nmental health or the office for people with developmental disabilities,\nwhere such information is included in the clinical record of any person\nunder the care of or receiving services from such provider or program.\n (e) Where the sealing required by this section has not taken place,\nincluding where supporting court records cannot be located or have been\ndestroyed, and a defendant or their attorney submits a valid form in\naccordance with paragraph (dd) of subdivision two of section two hundred\ntwelve of the judiciary law of such fact to the office of court\nadministration, such conviction shall be sealed as set forth in this\nsubdivision within thirty days of the receipt of such form.\n (f) The department of corrections and community supervision, in\ncoordination with the division of criminal justice services, shall\nprovide the office of court administration with the data necessary to\ndetermine appropriate records to be sealed pursuant to this section,\nincluding but not limited to (i) the date or dates of release from state\nincarceration of individuals who have a sentence of incarceration for a\nfelony conviction, and (ii) the date or dates of initial parole or\npost-release supervision and corresponding date or dates of discharge,\nas applicable.\n (g) The chief administrative officer of each local correctional\nfacility shall provide the office of court administration with the data\nnecessary to determine appropriate records to be sealed pursuant to this\nsection, including but not limited to the date or dates of release of\nindividuals who have satisfied a definite sentence of imprisonment.\n 2. Upon the sealing of a conviction pursuant to this section the\noffice of court administration shall immediately notify the division of\ncriminal justice services, the court of conviction, county clerks and\nthe heads of all appropriate police and sheriff departments,\nprosecutors' offices and law enforcement agencies that the conviction is\nsealed. Upon receipt of such notification, records of or relating to\nsuch conviction shall be immediately sealed as follows:\n (a) Every photograph of the defendant and photographic plates or\nproof, and all palmprints, fingerprints and retina scans taken or made\nof the defendant in regard to the sealed conviction, and all duplicates,\nreproductions, and copies thereof, except a digital fingerprint that is\non file with the division of criminal justice services for a conviction\nthat has not been sealed pursuant to this section, shall be marked as\nsealed by any entity notified under this subdivision having any such\nphotograph, photographic plate or proof, palmprint, fingerprints or\nretina scan in its possession or under its control by conspicuously\nindicating on the face of the record or at the beginning of the\ndigitized file of the record that the record has been designated as\nsealed.\n (b) Every official record and paper and duplicates and copies thereof,\nincluding, but not limited to, judgments and orders of a court but not\nincluding published court decisions or opinions or records and briefs on\nappeal, relating to the sealed conviction, on file with the entity\nnotified under this subdivision shall be marked as sealed by\nconspicuously indicating on the face of the record or at the beginning\nof the digitized file of the record that the record has been designated\nas sealed.\n (c) Entities subject to the requirements of this subdivision shall not\nuse or access such sealed information unless otherwise authorized\npursuant to this section or any other section of law.\n (d) Nothing in this section shall be construed to interfere with the\napplicable laws, rules and regulations requiring the division of\ncriminal justice services to administer and maintain criminal history\nrecords as set forth in article thirty-five of the executive law.\n 3. (a) Nothing in this section requires the sealing or destruction of\nDNA information maintained in the New York state DNA database, in\naccordance with article forty-nine-B of the executive law, of an\nindividual whose conviction is sealed under this section.\n (b) Nothing in this section requires the sealing or destruction of\nrecords maintained by the department of motor vehicles, and nothing in\nthis section shall be construed to contravene the vehicle and traffic\nlaw, the federal driver's privacy protection act (18 U.S.C 2721 et.\nseq.), the REAL ID Act of 2005 (Public Law 109-13; 49 U.S.C. 30301\nnote), section 7209 of the Intelligence Reform and Terrorism Prevention\nAct of 1986 (49 U.S.C. 31311), the Commercial Motor Vehicle Safety Act\nof 1986 (Public Law 99-570; 49 U.S.C. 313), the Motor Carrier Safety\nImprovement Act of 1999 (Public Law 106-159), or regulations promulgated\npursuant to any such chapter or act.\n (c) The division of criminal justice services is authorized to\ndisclose a conviction that is sealed pursuant to this section to\nentities that are required by federal law, or by rules and regulations\npromulgated by a self-regulatory organization created under federal law,\nto consider sealed convictions. Such entities must certify to the\ndivision that they are required by federal law, or by rules and\nregulations promulgated by a self-regulatory organization that has been\ncreated under federal law, to make an inquiry about or consider records\nsealed pursuant to this section for purposes of employment, licensing,\nor clearance. To the extent permitted by federal law, a record sealed\npursuant to this section may not be considered a conviction that would\nprohibit the employment, licensing or clearance of the defendant.\n (d) Nothing in this section shall prohibit entities required by\nfederal law to consider sealed convictions, or by rules and regulations\npromulgated by a self-regulatory organization that has been created\nunder federal law, from making an inquiry about or considering an\napplicant's criminal history for purposes of employment, licensing, or\nclearance from inquiring into convictions sealed pursuant to this\nsection.\n (e) In any civil action, an official record of a conviction that has\nbeen sealed pursuant to this section may not be introduced as evidence\nof negligence against a person or entity that provided employment,\ncontract labor or services, volunteer work, licensing, tenancy, a home\npurchase, a mortgage, an education, a loan, or insurance if such record\nwas sealed and was not provided to the person or entity by or on behalf\nof a governmental entity in accordance with this section in response to\nsuch person's or entity's authorized and timely request for conviction\nhistory information.\n (f) A person or entity described in this subdivision, acting\nreasonably and in good faith, may not have a duty to investigate the\nfact of a prior conviction that has been sealed pursuant to this\nsection.\n 4. No defendant shall be required or permitted to waive eligibility\nfor sealing pursuant to this section as part of a plea of guilty,\nsentence or any agreement related to a conviction for a violation of the\nlaws of this state. Any such waiver is void and unenforceable.\n 5. Sealing as set forth in subdivision two of this section is without\nprejudice to a defendant or their attorney seeking further relief\npursuant to article four hundred forty of this chapter. Nothing in this\nsection is intended or shall be interpreted to diminish or abrogate any\nrights or remedies otherwise available to the defendant.\n 6. The office of court administration shall make diligent efforts to\npromptly seal all conviction records eligible for sealing under this\nsection where such convictions were entered on or before the effective\ndate of this section and, in any event, shall ensure sealing of such\nconvictions is complete no later than three years after such effective\ndate.\n 7. A conviction which is sealed pursuant to this section is included\nwithin the definition of a conviction for the purposes of any criminal\nproceeding in which the fact of a prior conviction would enhance a\npenalty or is an element of the offense charged.\n 8. Nothing in this section shall be construed to permit sealing of a\nconviction before the expiration or termination of a sentence of\nincarceration, parole, probation, or post-release supervision for such\nconviction.\n 9. Nothing in this section shall be construed to affect or invalidate\nany active order of protection issued in relation to a conviction sealed\nunder this section.\n 10. Nothing in this section shall be construed to require or authorize\nthe discharge of the requirement to pay any restitution, reparation,\nfines, surcharges, or fees imposed for a conviction sealed under this\nsection or the sealing of a criminal or civil proceeding for the\ncollection of any such amount due, unless such proceeding is otherwise\neligible for sealing under this section or any other provision of law.\n