Sealing of certain convictions

§ 160.59 Sealing of certain convictions.\n 1. Definitions: As used in this section, the following terms shall\nhave the following meanings:\n (a) "Eligible offense" shall mean any crime defined in the laws of\nthis state other than a sex offense defined in article one hundred\nthirty of the penal law, an offense defined in article two hundred\nsixty-three of the penal law, a felony offense defined in article one\nhundred twenty-five of the penal law, a violent felony offense defined\nin section 70.02 of the penal law, a class A felony offense defined in\nthe penal law, a felony offense defined in article one hundred five of\nthe penal law where the underlying offense is not an eligible offense,\nan attempt to commit an offense that is not an eligible offense if the\nattempt is a felony, or an offense for which registration as a sex\noffender is required pursuant to article six-C of the correction law.\nFor the purposes of this section, where the defendant is convicted of\nmore than one eligible offense, committed as part of the same criminal\ntransaction as defined in subdivision two of section 40.10 of this\nchapter, those offenses shall be considered one eligible offense.\n (b) "Sentencing judge" shall mean the judge who pronounced sentence\nupon the conviction under consideration, or if that judge is no longer\nsitting in a court in the jurisdiction in which the conviction was\nobtained, any other judge who is sitting in the criminal court where the\njudgment of conviction was entered.\n 1-a. The chief administrator of the courts shall, pursuant to section\n10.40 of this chapter, prescribe a form application which may be used by\na defendant to apply for sealing pursuant to this section. Such form\napplication shall include all the essential elements required by this\nsection to be included in an application for sealing. Nothing in this\nsubdivision shall be read to require a defendant to use such form\napplication to apply for sealing.\n 2. (a) A defendant who has been convicted of up to two eligible\noffenses but not more than one felony offense may apply to the court in\nwhich he or she was convicted of the most serious offense to have such\nconviction or convictions sealed. If all offenses are offenses with the\nsame classification, the application shall be made to the court in which\nthe defendant was last convicted.\n (b) An application shall contain (i) a copy of a certificate of\ndisposition or other similar documentation for any offense for which the\ndefendant has been convicted, or an explanation of why such certificate\nor other documentation is not available; (ii) a sworn statement of the\ndefendant as to whether he or she has filed, or then intends to file,\nany application for sealing of any other eligible offense; (iii) a copy\nof any other such application that has been filed; (iv) a sworn\nstatement as to the conviction or convictions for which relief is being\nsought; and (v) a sworn statement of the reason or reasons why the court\nshould, in its discretion, grant such sealing, along with any supporting\ndocumentation.\n (c) A copy of any application for such sealing shall be served upon\nthe district attorney of the county in which the conviction, or, if more\nthan one, the convictions, was or were obtained. The district attorney\nshall notify the court within forty-five days if he or she objects to\nthe application for sealing.\n (d) When such application is filed with the court, it shall be\nassigned to the sentencing judge unless more than one application is\nfiled in which case the application shall be assigned to the county\ncourt or the supreme court of the county in which the criminal court is\nlocated, who shall request and receive from the division of criminal\njustice services a fingerprint based criminal history record of the\ndefendant, including any sealed or suppressed records. The division of\ncriminal justice services also shall include a criminal history report,\nif any, from the federal bureau of investigation regarding any criminal\nhistory information that occurred in other jurisdictions. The division\nis hereby authorized to receive such information from the federal bureau\nof investigation for this purpose, and to make such information\navailable to the court, which may make this information available to the\ndistrict attorney and the defendant.\n 3. The sentencing judge, or county or supreme court shall summarily\ndeny the defendant's application when:\n (a) the defendant is required to register as a sex offender pursuant\nto article six-C of the correction law; or\n (b) the defendant has previously obtained sealing of the maximum\nnumber of convictions allowable under section 160.58 of the criminal\nprocedure law; or\n (c) the defendant has previously obtained sealing of the maximum\nnumber of convictions allowable under subdivision four of this section;\nor\n (d) the time period specified in subdivision five of this section has\nnot yet been satisfied; or\n (e) the defendant has an undisposed arrest or charge pending; or\n (f) the defendant was convicted of any crime after the date of the\nentry of judgement of the last conviction for which sealing is sought;\nor\n (g) the defendant has failed to provide the court with the required\nsworn statement of the reasons why the court should grant the relief\nrequested; or\n (h) the defendant has been convicted of two or more felonies or more\nthan two crimes.\n 4. Provided that the application is not summarily denied for the\nreasons set forth in subdivision three of this section, a defendant who\nstands convicted of up to two eligible offenses, may obtain sealing of\nno more than two eligible offenses but not more than one felony offense.\n 5. Any eligible offense may be sealed only after at least ten years\nhave passed since the imposition of the sentence on the defendant's\nlatest conviction or, if the defendant was sentenced to a period of\nincarceration, including a period of incarceration imposed in\nconjunction with a sentence of probation, the defendant's latest release\nfrom incarceration. In calculating the ten year period under this\nsubdivision, any period of time the defendant spent incarcerated after\nthe conviction for which the application for sealing is sought, shall be\nexcluded and such ten year period shall be extended by a period or\nperiods equal to the time served under such incarceration.\n 6. Upon determining that the application is not subject to mandatory\ndenial pursuant to subdivision three of this section and that the\napplication is opposed by the district attorney, the sentencing judge or\ncounty or supreme court shall conduct a hearing on the application in\norder to consider any evidence offered by either party that would aid\nthe sentencing judge in his or her decision whether to seal the records\nof the defendant's convictions. No hearing is required if the district\nattorney does not oppose the application.\n 7. In considering any such application, the sentencing judge or county\nor supreme court shall consider any relevant factors, including but not\nlimited to:\n (a) the amount of time that has elapsed since the defendant's last\nconviction;\n (b) the circumstances and seriousness of the offense for which the\ndefendant is seeking relief, including whether the arrest charge was not\nan eligible offense;\n (c) the circumstances and seriousness of any other offenses for which\nthe defendant stands convicted;\n (d) the character of the defendant, including any measures that the\ndefendant has taken toward rehabilitation, such as participating in\ntreatment programs, work, or schooling, and participating in community\nservice or other volunteer programs;\n (e) any statements made by the victim of the offense for which the\ndefendant is seeking relief;\n (f) the impact of sealing the defendant's record upon his or her\nrehabilitation and upon his or her successful and productive reentry and\nreintegration into society; and\n (g) the impact of sealing the defendant's record on public safety and\nupon the public's confidence in and respect for the law.\n 8. When a sentencing judge or county or supreme court orders sealing\npursuant to this section, all official records and papers relating to\nthe arrests, prosecutions, and convictions, including all duplicates and\ncopies thereof, on file with the division of criminal justice services\nor any court shall be sealed and not made available to any person or\npublic or private agency except as provided for in subdivision nine of\nthis section; provided, however, the division shall retain any\nfingerprints, palmprints and photographs, or digital images of the same.\nThe clerk of such court shall immediately notify the commissioner of the\ndivision of criminal justice services regarding the records that shall\nbe sealed pursuant to this section. The clerk also shall notify any\ncourt in which the defendant has stated, pursuant to paragraph (b) of\nsubdivision two of this section, that he or she has filed or intends to\nfile an application for sealing of any other eligible offense.\n 9. Records sealed pursuant to this section shall be made available to:\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; or\n (e) the criminal justice information services division of the federal\nbureau of investigation, for the purposes of responding to queries to\nthe national instant criminal background check system regarding attempts\nto purchase or otherwise take possession of firearms, as defined in 18\nUSC 921 (a) (3).\n 10. 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 11. 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 an eligible\noffense and any such waiver shall be deemed void and wholly\nunenforceable.\n