Conditional sealing of certain controlled substance, marihuana or specified offense convictions

§ 160.58 Conditional sealing of certain controlled substance, marihuana\n or specified offense convictions.\n 1. A defendant convicted of any offense defined in article two hundred\ntwenty or two hundred twenty-one of the penal law or a specified offense\ndefined in subdivision five of section 410.91 of this chapter who has\nsuccessfully completed a judicial diversion program under article two\nhundred sixteen of this chapter, or one of the programs heretofore known\nas drug treatment alternative to prison or another judicially sanctioned\ndrug treatment program of similar duration, requirements and level of\nsupervision, and has completed the sentence imposed for the offense or\noffenses, is eligible to have such offense or offenses sealed pursuant\nto this section.\n 2. The court that sentenced the defendant to a judicially sanctioned\ndrug treatment program may on its own motion, or on the defendant's\nmotion, order that all official records and papers relating to the\narrest, prosecution and conviction which resulted in the defendant's\nparticipation in the judicially sanctioned drug treatment program be\nconditionally sealed. In such case, the court may also conditionally\nseal the arrest, prosecution and conviction records for no more than\nthree of the defendant's prior eligible misdemeanors, which for purposes\nof this subdivision shall be limited to misdemeanor offenses defined in\narticle two hundred twenty or two hundred twenty-one of the penal law.\nThe court may only seal the records of the defendant's arrests,\nprosecutions and convictions when:\n (a) the sentencing court has requested and received from the division\nof criminal justice services or the Federal Bureau of Investigation a\nfingerprint based criminal history record of the defendant, including\nany sealed or suppressed information. The division of criminal justice\nservices shall also include a criminal history report, if any, from the\nFederal Bureau of Investigation regarding any criminal history\ninformation that occurred in other jurisdictions. The division is hereby\nauthorized to receive such information from the Federal Bureau of\nInvestigation for this purpose. The parties shall be permitted to\nexamine these records;\n (b) the defendant or court has identified the misdemeanor conviction\nor convictions for which relief may be granted;\n (c) the court has received documentation that the sentences imposed on\nthe eligible misdemeanor convictions have been completed, or if no such\ndocumentation is reasonably available, a sworn affidavit that the\nsentences imposed on the prior misdemeanors have been completed; and\n (d) the court has notified the district attorney of each jurisdiction\nin which the defendant has been convicted of an offense with respect to\nwhich sealing is sought, and the court or courts of record for such\noffenses, that the court is considering sealing the records of the\ndefendant's eligible misdemeanor convictions. Both the district attorney\nand the court shall be given a reasonable opportunity, which shall not\nbe less than thirty days, in which to comment and submit materials to\naid the court in making such a determination.\n 3. At the request of the defendant or the district attorney of a\ncounty in which the defendant committed a crime that is the subject of\nthe sealing application, the court may conduct a hearing to consider and\nreview any relevant evidence offered by either party that would aid the\ncourt in its decision whether to seal the records of the defendant's\narrests, prosecutions and convictions. In making such a determination,\nthe court shall consider any relevant factors, including but not limited\nto: (i) the circumstances and seriousness of the offense or offenses\nthat resulted in the conviction or convictions; (ii) the character of\nthe defendant, including his or her completion of the judicially\nsanctioned treatment program as described in subdivision one of this\nsection; (iii) the defendant's criminal history; and (iv) the impact of\nsealing the defendant's records upon his or her rehabilitation and his\nor her successful and productive reentry and reintegration into society,\nand on public safety.\n 4. When a court orders sealing pursuant to this section, all official\nrecords and papers relating to the arrests, prosecutions, and\nconvictions, including all duplicates and copies thereof, on file with\nthe division of criminal justice services or any court shall be sealed\nand not made available to any person or public or private agency;\nprovided, however, the division shall retain any fingerprints,\npalmprints and photographs, or digital images of the same.\n 5. When the court orders sealing pursuant to this section, the clerk\nof such court shall immediately notify the commissioner of the division\nof criminal justice services, and any court that sentenced the defendant\nfor an offense which has been conditionally sealed, regarding the\nrecords that shall be sealed pursuant to this section.\n 6. Records sealed pursuant to this subdivision shall be made available\nto:\n (a) the defendant or the defendant's designated agent;\n (b) qualified agencies, as defined in subdivision nine of section\neight hundred thirty-five of the executive law, and federal and state\nlaw enforcement agencies, when acting within the scope of their law\nenforcement duties; or\n (c) any state or local officer or agency with responsibility for the\nissuance of licenses to possess guns, when the person has made\napplication for such a license; or\n (d) 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 for the position of police officer or\npeace officer shall be furnished with a copy of all records obtained\nunder this paragraph and afforded an opportunity to make an explanation\nthereto.\n 7. The court shall not seal the defendant's record pursuant to this\nsection while any charged offense is pending.\n 8. If, subsequent to the sealing of records pursuant to this\nsubdivision, the person who is the subject of such records is arrested\nfor or formally charged with any misdemeanor or felony offense, such\nrecords shall be unsealed immediately and remain unsealed; provided,\nhowever, that if such new misdemeanor or felony arrest results in a\ntermination in favor of the accused as defined in subdivision three of\nsection 160.50 of this article or by conviction for a non criminal\noffense as described in section 160.55 of this article, such unsealed\nrecords shall be conditionally sealed pursuant to this section.\n