In spite of the confusion and abundant misinformation on the topic, it is a critical area of New York Criminal Law. After all--for most-- the largest consequence to a criminal charge is not jail, a fine or community service, but the criminal record that may follow the person around forever.
The following information reflects my understanding of what happens to charges when they are disposed of in New York State either by conviction (plea, jury verdict of guilty) or by dismissal, (acquittal or dismissal, ACD) I put it in a "frequently asked questions" since people frequently ask me these questions.
"Expungement" means that the record is actually removed from the system. "Sealing" means that the record exists, but that it is shielded from public view. When a record is sealed at the Court level it means that the Court file is stored at the Particular Courthouse where the sealing was ordered, and that there is also an electronic record there of the case, but neither the actual file nor the computer record is available to the public.
Technically, one could say that, under New York CPL 160.50, there is a combination of sealing and expungement with regards to criminal records. The fingerprints, photographs and arrest records are supposed to be destroyed (expunged) at the police level, but the Court Records are neither destroyed nor returned, Instead, under CPL 160.50 they are sealed at the Court level and are also sealed in Albany, New York. But even Albany maintains a special electronic file of the arrest which is not disclosed except under very limited circumstances.
First, in New York, a record of a criminal conviction, which is any misdemeanor or felony except a youthful offender adjudication, is never sealed and is considered a public record available to anyone through the OCA website for a $55 fee. It does not matter if the person had the charge reduced from a felony to a misdemeanor or only received probation. There are no exceptions to the rule.
In New York, the only records that get sealed are complete dismissals including:
ACD's other forms of dismissal and Acquittals, these get the full seal treatment of CPL 160.50. On the other hand, charges that are reduced from a misdemeanor or felony to a violation or infraction get the partial seal treatment of CPL 160.55.
IF MY RECORD IS NOT SEALED, CAN I GET IT SEALED?
Maybe, Here is the text of a Court Decision on a motion to seal a case pursuant to 160.50 and/or 160.55 (there are minor alterations to protect the identity of the Defendant.
*1 Defendant's unopposed motion for an order, to seal all of the the records of the above captioned action, pursuant to CPL § 160.50, is decided as follows:
The defendant presented the following facts which are not contested by the People.
The defendant was arraigned on November 7, 1994 and charged with forgery in the second degree, a Class D felony. In 1995 the People filed a prosecutor's information charging the defendant with two A misdemeanors; criminal possession of stolen property and petit larceny. On June 21, 1995 the People made an offer to allow the defendant to plead to one count of violating P.L. 240.20(7), (Disorderly Conduct), in satisfaction of both misdemeanor charges. The People's offer was conditioned, inter alia, on the defendant's waiver of his rights to have the record of his conviction sealed pursuant to CPL § 160.55.
The defendant attests that his arrest in November of 1994 was his first and only contact with the criminal justice system. He states that despite the fact that the minutes of his plea and sentence indicate that he knowingly waived his right to sealing “it was never explained to me that the record of this offense would follow me for the rest of my life.”
Counsel for the defendant states that the defendant was advised by his attorney in 1995 that “there would be no lasting consequences beyond the fact that a search would reveal that he had been arrested but not convicted of a crime.” Counsel states that despite this promise the defendant suffered immediate consequences and continues to suffer from consequences associated with his conviction “as of the date of this motion.”
At the time of his arrest Defendant was in his last semester of college. Upon receiving notification of his arrest the university suspended Defendant. Eventually he was reinstated and graduated. In the years following his graduation the defendant developed expertise in various computer and technical areas and obtained multiple certifications. He now specializes in the air line industry.
The defendant attests, that based on his conviction in 1994, he “has been repeatedly subjected to further scrutiny and more background checks than any of my colleagues.” He provided a list of numerous airports where he has repeatedly been denied access from November 2006 to the present. He states that his career and his “entire livelihood” depend on his ability to “pass background checks to obtain security clearance” and the record of his conviction in this case has repeatedly caused him to be subjected to heightened scrutiny which has negatively affected his ability to perform his job.
I have to constantly go through background checks to gain access to secure areas of the airport which require security clearance. This security screening is above and beyond normal screening that a frequent traveler would have to go through for access at any airport. These clearances require fingerprinting and background threat analysis. I have not been in the criminal justice system since my arrest in 1994. During my application process in 2001 I was fingerprinted and received the FBI version of my record and I learned that the records of the disposition of my case are not sealed and open to inspection by anyone, including potential employers such as the above. Although the minutes of my plea and sentence indicate a knowing waiver it was never explained to me that the record of this offense would follow me for the rest of my life.
I am very concerned that these violation convictions, while not criminal, could hamper my pending applications and future employment as they have already had a negative impact on my professional and personal life....
It's as such, it is my hope that these records could be sealed so as to allow me to present myself in the most favorable manner possible to my present and future employers.
The defendant submitted a copy of his FBI arrest record report in support of his application. Counsel for the defendant states that this document has repeatedly been “misread” because it appears to indicate that the defendant was convicted of a felony. The court has reviewed this document and finds that it could easily be subject to that misinterpretation.
MOTION FOR SEALINGThe transcript of the defendant's guilty plea make it clear that the District Attorney's offer to allow the defendant to plead guilty to PL § 240.20(7), a non-criminal charge, was conditioned upon the defendant “waiving his sealing rights.” But for that condition the record of the defendant's conviction would have been sealed pursuant to CPL § 160.55 and the defendant's fingerprints and any photographs taken of the defendant would have been returned to the defendant or destroyed.
In addition, CPL § 160.55(1)(c) requires that all records “relating to the arrest and prosecution, ... on file with the division of criminal justice services, police agency or prosecutor's office shall be sealed and not made available to any person or public or private agency,” (except for the specific provisions pf CPL § 160.55[d] ).
The defendant is now requesting that the records of this case be sealed pursuant to CPL § 160.50. There is a significant distinction between a sealing pursuant to CPL § 160.50 and CPL § 160.55.Sealing pursuant to CPL § 160.50 is required when a criminal action is terminated “in favor of the accused”. Where a defendant is charged with a criminal offense, but is ultimately convicted of a violation, a on criminal offense, that a conviction does not constitute a termination in favor of the accused and is therefore not subject to sealing pursuant to CPL § 160.50. However, sealing of the records of the conviction of the petty offense can be accomplished pursuant to CPL § 160.55, People v. Pettinato, 22 Misc.3d 140(A),(App Term 9th & 10th Jud. Dist., 2009).Notwithstanding the fact that the People required the defendant to waive his right to sealing under CPL § 160.55 in 1994, they chose not to oppose the defendant's motion at this time.
*3 In appropriate cases courts have the “inherent power” to seal their own records. Although this power is rarely exercised, courts have done so when it “was found warranted to protect those who might unjustly be injured by indiscriminate availability of records,” Matter of Hynes v. Karassik, 47 N.Y.2d 659,664, (1979).In the instant case, the court finds that the facts presented by the defendant in support of his instant application demonstrate that he has been unjustly injured by the indiscriminate availability of the records of his conviction of a non-criminal offense.
Accordingly, the defendant's motion is granted to the extent that the court hereby
Orders that the records in the instant matter shall be sealed pursuant to CPL § 160.55.
This constitutes the Decision and Order of the Court.
A sealing under 160.50 occurs in New York when a criminal charge is dismissed completely, while a sealing under 160.55 occurs when a criminal charge is reduced from a misdemeanor or felony to a violation or infraction.
A sealing under CPL 160.50 is unquestionably favorable to one under CPL 160.55 since the 160.50 sealing essentially prevents the incident from showing up in a background check. In a nutshell, a sealing under 160.50 will mandate destruction of the arrest record and the sealing of the court file. A dismissal after an adjournment in contemplation of dismissal ("ACD") will result in a 160.50 sealing.
A sealing under 160.55 is not as comprehensive as the 160.50 sealing. The 160.55 sealing occurs when someone is arrested or charged with a criminal offense, but is ultimately convicted of a violation or infraction, the sealing of the arrest records is accomplished pursuant to CPL 160.55 (1) (c), which means that records of the arrest, such as mugshots, arrest reports and fingerprints are destroyed.
However, unlike a termination of the action favorable to Defendant such as a complete dismissal where both the arrest records AND the court papers are sealed under CPL 160.50, a sealing under 160.55 does not seal the Court file since there is no provision contained in CPL 160.55 for the sealing of court records. As far as I am aware, sealing under 160.55 will not prevent background checkers from finding out about a criminal matter that was reduced to a violation, all they have to do is show up at the courthouse where the case was heard and have the defendant's name, along with something in addition such as docket number, arrest date, arrest number, etc.
While, technically, courts may have the inherent power to seal their own records, it is up to the Court's discretion and one would likely have to make a strong, compelling showing in order to persuade the Court to order the 160.50 sealing.
Law Offices of Robert Briere 212-786-2999 (Summons Lawyers click here)
NYC Criminal Courts follow the laws set forth in the New York Criminal Procedure law with regards to the sealing of records. The subject of sealing criminal records in NYC was placed at the top of the menu because the issue of what "sealing" of a criminal record really means under New York Law seems to be a source of endless confusion for both clients and even experienced NYC criminal defense lawyers.